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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 100
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PD893/06
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OPINION OF LORD KINCLAVEN
in the cause
MRS JOYCE ROBSON
Pursuer;
against
GRAMPIAN COUNTRY
CHICKENS (REARING) LTD
Defenders:
________________
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Pursuer:
M.A. Stuart; Morisons, LLP
Defenders: McGregor;
Simpson & Marwick, W.S.
10 July 2008
[1] This
is a reparation action in which the pursuer seeks damages for personal
injuries.
[2] The
pursuer was employed by the defenders at their premises at Blackhall
Road, Inverurie from about March 1999 until April
2004. She alleges that during the course
of her duties in the chicken hatching unit, and elsewhere, she was exposed to
formaldehyde (usually referred to as formalin) and other chemicals.
[3] As
a result of the defenders' failures in duty the pursuer contracted occupational
asthma.
[4] Liability
is admitted. The sum sued for is £100,000.
[5] The
matter came before me by way of proof restricted to quantum of damages.
[6] The
pursuer was represented by Mr Michael Stuart.
[7] The
defenders were represented by Mr McGregor.
[8] Having
heard the evidence, I also had the benefit of helpful submissions from counsel.
[9] In
the whole circumstances, and for the reasons outlined below, I propose to grant
decree for payment by the defenders to the pursuer of the sum of £24,890.72
Sterling with interest thereon at
the rate of 8 per cent per year from 14 June
2007 until payment.
The Background
[10] The pursuer was born on 13 April
1950. She lives with her
husband in Fyvie, Turriff.
[11] The Record, as amended, is No.21 of Process.
[12] The Minute of Admission of Liability is Number 20.
[13] The defenders admit liability to make reparation to the pursuer
under reservation of "their whole rights and pleas relating to quantum". No question of causation arises.
[14] The pursuer's averments of loss (in Article 10 of
Condescendence) are as follows:
"This condition (occupational asthma) causes the pursuer
to suffer breathlessness that makes many forms of physical activity difficult
for her. She suffers from pain in her
chest. She can no longer go walking,
swimming or cycling. She is incapable of
carrying out physically demanding work.
The pursuer has been off work and terminated her employment with the
defender on or around 9th April,
2004 as a result of her condition.
The pursuer has worked for Mathers Limited, Inverurie and Aberdeen
Airport since leaving work. The pursuer is incapable of heavy manual work
and cannot work with chemicals such as the cleaning agents condescended
upon. The pursuer is at a disadvantage
on the labour market as a result of her condition. She has lost earnings. She will require to use an inhaler for the
rest of her life. She has incurred and
will continue to incur prescription costs.
The pursuer has received treatment from Dr Ede, Medical Advisor,
Alban Occupational Health Services, 24 Alban
Place, Aberdeen, AB10 1RW; her GP, Dr Craig Watson, Fyvie, Old
Meldrum Medical Group, The Health Centre, Pernasiss
Gardens, Turiff,
AB53 8QD; and Professor John Ayres, Aberdeen Royal
Infirmary, Forrester Hill, Aberdeen, AB25
2ZN."
[15] The defenders aver, in Answer 10, inter alia:
"The sum sued
for is excessive. Explained and averred
that lung function tests revealed that the pursuer has not suffered from any
significant disability. She has
minimally reduced lung function.
Examination of her chest reveals no abnormality nor any signs of
wheezing. She is overweight. Esto
the pursuer suffers from breathlessness on exertion (which is not known and not
admitted), this is not the consequence of pulmonary impairment. She is fit for work and following the
termination of her employment with the defenders she worked in a beef
processing plant. She is currently
employed in cleaning aircraft at Aberdeen
Airport."
Joint Minute of Admissions
[16] Helpfully, in terms of the
Joint Minute of Admissions, No.23 of Process, the parties were agreed as
follows:
1. That the pursuer's
employment with the defenders was terminated on 9 April 2004.
2. That the pursuer was
employed by Mathers (Inverurie) Ltd from 19 April 2004 to 18 June 2004.
3. That the pursuer was
employed by Aberdeen Aircraft Cleaning Company on 18 June 2004.
4. That 7/1 is a copy
spreadsheet detailing the earnings paid to the pursuer by the defenders for the
period 3 January 2003
to 2 January 2004.
5. That 6/2 is a copy
spreadsheet detailing the earnings paid to the pursuer by the defenders for the
period 16 January 2004
to 9 April 2004.
6. That 7/2 of process are
copy documents detailing the earnings paid to the pursuer by Mathers
(Inverurie) Ltd for the period 19 April 2004 to 18 June 2004.
7. That 7/3 of process is a
copy spreadsheet detailing the earnings paid to the pursuer by Aberdeen Aircraft
Cleaning Co for the period 18 June
2004 to 23 February
2007.
8. That 6/1 and 6/30 of
process are the pursuer's general practice records.
9. That 6/3 are copy records
from the defenders' Occupational Health Department.
The Proof
[17] At the start of the proof, I
was referred to the Joint Minute of Admissions (No.23 of Process).
[18] The pursuer also introduced into evidence the Report of the Pursuer's
Commission to take the evidence of Professor J G Ayres which was held on 5 June 2007 (No.22 of Process).
[19] I also heard oral evidence from:
1. Mrs Joyce Robson, the pursuer; and
2. Professor Anthony Seaton, the
defenders' expert witness.
[20] Counsel made helpful submissions as follows.
The Submissions for the Pursuer
The Pursuer
[21] Mr Stuart invited me to find that the pursuer was a
credible and reliable witness. She was
somewhat stoical but found the process of giving evidence stressful. Both Professors Ayres and Seaton
considered Mrs Robson to be a honest person who did not seek to mislead about
her condition. Professor Seaton
said she forgot some things but made no attempt to mislead.
[22] The core of her account was supported by the objective and
expert evidence and Mr Stuart invited me to accept it.
[23] The pursuer said that she first noticed her symptoms when she
relieved a fellow worker called Morag (in around 2001 or 2002). She would get a dry cough and pain in the
middle of her chest. She was generally
tired and breathlessness depending on her situation. She first presented to her GP with chest pain
in 2002 (see Production No. 6/1 at page 202 - 1 July 2002). Professor Seaton
said early presentation with chest pain is common in asthma cases. She was seen by her occupational health
department nurse. The nurse advised her
to go to her doctor. Things got worse. She had two course of oral steroids. She was in hospital twice in one day due to
symptoms. She found walking up hills
difficult. She became sensitive to the
weather. Her first prescription was on 22 August 2003 (see Production No.6/1
at page 198). Once on her inhaler
things began to steady. The pursuer was
referred by her GP to Professor Ayres.
[24] The pursuer was off work for some time. She was sent home by Laird Parker,
Grampian Country Chickens manager, because she could not do her job. She had no symptoms before Grampian Country
Chickens.
[25] The pursuer's symptoms are up and down in the sense that she now
has good weeks and bad weeks. There had
been an overall improvement since starting steroids. Triggers for her asthma include cold weather,
humid weather, smoke, dust, and aerosols.
She no longer swims - because of the chlorine. She no longer walks up hills but can manage
on the flat. She no longer cycles. She lives on steep hill and does not see the
point. Her chest tightens and she has to
use her inhaler. The pursuer does not go
out as much and finds she gets exhausted.
She does not dye her hair or paint her nails anymore. She now structures her life around her asthma. She suffers more colds and chest infections -
perhaps four to five a year. Without her
medication her chest is very sore, she cannot breathe properly and she cannot
get breath.
[26] The pursuer lost her job with Grampian Country Chickens due to her
condition.
[27] The pursuer could not cope with her subsequent job with Mathers
(Inverurie) Ltd but that was because of a pre-existing elbow condition (see Production
No.6/1 of Process at page 202 - entry of 26/10/01).
[28] The pursuer was now working with Aberdeen Aircraft Cleaning
Company. The pursuer was concerned about
losing her job. The owner, John Moir,
had suffered heart failure.
[29] The pursuer had limited alternatives for employment. For example she could not work in a bakery or
in Boots.
[30] Mr Stuart submitted that the pursuer would probably work
to 65 to 70, depending on pension and fitness to work. She did overtime at Grampian Country
Chickens, but as symptoms got worse had to stop doing overtime. The pursuer was "a worker".
Professor Ayres
[31] Mr Stuart also provided a review
of the evidence of Professor Ayres.
[32] Professor Ayres is Professor of Environmental and
Occupational Medicine at the University
of Aberdeen. His Report is No.6/28 of Process. His Supplementary Report in No.6/29 of
Process.
[33] I need not rehearse the Commission Report (Production No.22 of
Process). Suffice it to note that Professor Ayres
gave evidence in relation to, inter alia:-
- Asthma and inhalers (page 8D to 10B);
- Symptoms (page 10F to 11E);
- Steroid inhalers (page 11F to 13D);
- Changing medication to Seretide (page 16B to
18B) - a combination inhaler;
- The ongoing picture (page 18C to 20B);
- Pulmonary function tests (page 20B to 24A);
- The pursuer had "uncontrolled asthma" (page 26D);
- The pursuer "will need to take inhaled therapy for
the rest of her life" (page 28D);
- Triggers (page 29B to 30D);
- Leaving Grampian Country Chickens (page 30D);
- Future employment (page 30F to 32F); and,
- His Supplementary Report (page 32F to 36C);
[34] Cross examination of Professor Ayres is at page 36 et seq.
He deals with inter alia:-
- Hypertension and anxiety (pages 48F; 51F to 53B);
- Questions of exaggeration (Production No.6/1 at page 44)
(pages 53C to 55D);
- The clinic letter of 24 November 2004 (Production No 6/1 at page 275)
(page 56D);
- The clinic letter of 6 July 2005 (Production No.6/1 at page 270) (
pages 57B to 58C);
- The clinic letter of 9 November 2005 (Production No.6/1 at page 269)
(pages 58D to 59F);
- Weight (pages 68B to 69A); and
- The pursuer's history of cigarette smoking (page 71).
[35] The defenders case was put to Professor Ayres at pages 76D
to 80A.
[36] Professor Ayres stated inter
alia (at page 79): "My feeling with Mrs Robson is in general she
has been honest". There was a question
mark about the patterns of her peak flow.
There was one component where he thought it was a bit regimental but
otherwise his feeling was, and he had met the pursuer a number of times, "that
basically she is an honest soul".
[37] In re-examination (at pages 81 to 86) Professor Ayres
explained that lung function was being looked at under the influence of appropriate
medical therapy (page 81E). Without
appropriate medical therapy "things would be worse" (page 82F). He did not think the pursuer was "morbidly
obese". He thought she was "overweight".
[38] Professor Ayres stood by the views expressed in his
reports (page 86D).
Professor Seaton
[39] Mr Stuart also provided a
review of the evidence of Professor Seaton , along the following lines.
[40] Mrs Robson has asthma.
It developed over quite a significant period. She will continue to have asthma.
[41] Mrs Robson will continue to use inhalers for the rest of
her life; both preventative inhaler daily and relief inhaler as and when
required.
[42] The steroids suppress the irritability associated with asthma
and improve control of asthma.
[43] She will require her relief inhaler where control is lost, and oral
steroids where the attack is severe. She
has had two courses of oral steroids.
[44] Most asthmatics are normally healthy and get relief from two
puffs from their inhaler. If they suffer
an attack, they will take two puffs and be fine in about 5 minutes. The treatment becomes part of normal life.
[45] Mrs Robson is worse than that, according to Mr Stuart. She has to take a regular preventative
inhaler to prevent an attack, and salbutomol (her reliever) when necessary.
[46] The symptoms complained of since leaving work, which are set
out in Professor Seaton's report, are all perfectly plausible (page 4-5).
[47] The aim is to help patients lead as normal a life as possible. If medication was removed symptoms would
become more troublesome.
[48] Exposure to triggers through life will cause exacerbations and
some may be severe - although one should not read too much into particular adjectives
like severe or mild. What is important
is how it interferes with life - by looking at the patient and seeing how her
life-style is affected.
[49] Mrs Robson has "irritant" asthma, as opposed to
"sensitisation" type asthma. There are
all sorts of triggers such as fumes; vapours; cold air; psychological stresses;
physical exertion. Mrs Robson will
have to manage her life to avoid triggers but even those with severe asthma can
and do hold down full time jobs - even as miners.
[50] It is not so much working per
se but working conditions that are relevant to asthma. Mrs Robson should avoid employment where
triggers exist. Employers are often
unlikely to take on people with asthma.
[51] Professor Ayres did not take the view Mrs Robson was
maximising symptoms for the purpose of compensation. There was an element of human reaction but it
was simply part of who Mrs Robson is.
She made some mistakes but was truthful.
She was stressed and anxious at time of interview.
[52] In relation to the level of disability, it was helpful to look
at different components taken together:
- lung function - there was some reduction but
Mrs Robson ought to be able to maintain normal daily activities. Even those with severe asthma can
produce work, exercise and produce normal lung function test results.
- asthma variability - this explains Mrs Robson's
symptoms of coughs and colds. Mrs Robson
has hyperactive airways. Breathlessness
is subjective and many patients get anxious about their symptoms. It is very common for nervous patients
to worry and make things worse. It
is common to use an inhaler when it is not actually needed. Mrs Robson is one of those. She worries.
- handicap - Mrs Robson needs to use
inhalers. She has returned to work
- much credit to her. Professor Seaton
defined "significant" handicap by reference to inability to work
rather than limitation on work or inability to do certain work
[53] At the end of the day, Mr Stuart was not sure that there
was a great deal of difference between Professor Ayres and Professor Seaton.
[54] Ultimately there was a broad measure of agreement.
[55] There was a slight disproportion between Mrs Robson's lung
function tests and her breathlessness, but that could be explained by reference
to her disposition.
Quantum
Solatium
[56] In relation to solatium,
Mr Stuart suggested that the question of Mrs Robson being anxious accounted
for any disproportion in symptoms. He
referred to the evidence of Professor Seaton and Kathleen Mullins v Derek Gray
[2004] EWCA Civ 1483 (particularly paragraphs 9, 10, 13, 23 and 24). This was simply part of Mrs Robson's
disposition.
[57] Mr Stuart also referred to the Judicial Studies Board Guidelines for the Assessment of General
Damages in Personal Injuries Cases, Chapter 5 (D) "Asthma" paragraph (b)
which suggested a range of £15,250 - £25,000.
[58] The elements to be considered were:-
- chronic asthma causing breathing difficulties
- on exposure to triggers such as fumes and smells, smoke, cold weather
and sufficiently demanding exercise.
Mrs Robson's asthma is of the irritant type which involves a
wider range triggers.
- the need to use an inhaler from time to time. Mrs Robson is considerably worse
than this, suggested Mr Stuart.
Professor Seaton specifically drew a distinction between a
person who would require to use an inhaler for relief from time to time
and a person such as Mrs Robson who requires to use a preventative
steroid inhaler on a daily basis. Mrs Robson
will in all likelihood require to do so for the rest of her life
- restriction of employment prospects. Professor Seaton drew a distinction
between removal of employment prospects (significant handicap) and limitation of employment prospects,
which he said applied to Mrs Robson - Professor Ayres said that triggers
will influence the employment available to Mrs Robson.
- uncertain prognosis. In some respects Mrs Robson's
prognosis is worse suggested Mr Stuart. Both Professor Ayres and Professor Seaton
considered that Mrs Robson has her asthma for life and that it is
likely that she will require to take both her preventative inhaler and her
relief inhaler for life - Professor Ayres said her symptoms have
stabilized - Professor Seaton said with appropriate treatment and by
fitting her life around her asthma Mrs Robson should be able to get
to a point where she can do more physical exercise that she does now.
[59] Mr Stuart suggested that Mrs Robson's case fell into
the upper half of the JSB Guidelines.
[60] As far as judicial precedents were concerned, there were few
reported decisions. I was referred to Reilly v Robert Kellie & Son Ltd 1990 S.L.T. 78 (March 1989) which
has an equivalent, as at June 2007, of £22,034 (206.2/112.3 x £12,000). I was also referred to cases from Kemp &
Kemp (pages K2002 - K2004) and I was reminded of the influence of Heil v Rankin [2001] QB 272 which resulted in an uplift in awards. It was suggested that the awards discussed
should be seen as a little low following Heil.
[61] Ultimately, counsel for the pursuer invited me to award a sum
of £20,000 for solatium attributing
50% to the past.
Wage
loss
[62] In relation to wage loss, Mr Stuart referred me to
Productions 7/1, 7/2 and 7/3 and submitted that there should be an award
outlined as follows.
[63] In relation to Grampian Country Chickens (Rearing) Ltd, there
were two relevant periods, namely (1) 14 weeks from 16 May 2003 to 22 August
2003 and (2) 13 weeks from 16 January 2004 to 9 April 2004 (termination). The pursuer's pre-existing average wage was £192.50. For period (1) the claim was for £267
(after deduction of actual earnings of £2,428). For period (2) the claim was for £256
(after deduction of actual earnings of £2,247).
[64] In relation to Mathers (Inverurie) Ltd, Mr Stuart submitted
that the appropriate figure was £867
based on 9 weeks (after deduction of actual earnings of £865.50). The pursuer had a pre-existing problem (see
Production 6/6 at page 202 and the entry for 26 October 2001) but there was a causal link
between the defender's breaches of duty and the pursuer's loss. In any event the defenders required to take
their victim as they found her.
[65] In relation to Aberdeen Aircraft Cleaning Company, the claim
was for 3 weeks, namely, £273 (after deduction of actual earnings of £304.97).
[66] The total of those various elements, according to my
calculations, produces a total net wage loss claim of £1,663.
[67] Interest was sought at 8% per annum from 1 July 2004 when the claim crystallised.
Disadvantage
in the labour market
[68] Mr Stuart also sought an award in relation to disadvantage
in the labour market.
[69] The relevant factors were said to be:-
·
risk of being placed on the labour market,
·
disadvantage once there,
·
disability, an
·
future time on labour market.
[70] The relevant evidence came from:-
·
The Pursuer, who said she would work to 65 or 70
depending. She was 57 years of age
and had 8 to 15 more years in the labour market. Her current employer had recently suffered a stroke
/ heart attack
·
Professor Seaton, who said that employers were
unlikely to take on people with asthma.
The pursuer was handicapped in that she was unable to do certain
work.
·
Professor Ayres, who thought it likely that
existence of triggers will govern choice of employment to some extent. Some employers knowing the pursuer's past
history could well feel that she is not the person for them.
[71] In this context, awards were frequently made by reference to
pursuer's net annual income. Awards were
rarely for less than six months and some were up to three years net salary for
younger individuals with significant impairment.
[72] The pursuer's current net annual earnings are £14,245.
Summary
of Pursuer's Submissions
[73] In summary, Mr Stuart invited me to award the following as
principal sums:-
·
Solatium £20,000
·
Wage Loss £ 1,663
·
Disadvantage on the Labour Market £10,000
[74] Interest was sought on past solatium (50% being attributed to
the past) at half the judicial rate. Mr Stuart
initially suggested interest from 14 March
2003 but, at the end of the day, there was little dispute between
the parties that interest should run from August 2003. I shall take 22 August 2003 as the appropriate date - being the date of
the pursuer's prescription which is shown in her medical records (Production 6/1
at page 198).
[75] Interest was sought on wage loss at 8% per annum from 1 July 2004 when that claim
crystallised.
The Submissions for the
Defenders
[76] McGregor's submissions took
as their starting point the Record and in particular Statement of Claim 6 (pages 12
and 13) which I have set out above.
[77] The pursuer sought solatium,
lost earnings, disadvantage on the labour market, and prescription costs.
[78] At the outset Mr McGregor submitted that there has been
either no evidence or wholly insufficient evidence to substantiate the claims
for loss of earnings or prescription costs.
In his submission these heads of claim must necessarily fail.
[79] Before me the pursuer did not advance any claim for
prescription costs. To that extent Mr McGregor's
submission was well founded.
[80] I shall return to the question of wage loss below.
[81] Mr McGregor dealt with the remaining heads of claim,
namely solatium and disadvantage in
the labour market as follows.
Solatium
[82] In relation to solatium
Mr McGregor, submitted that a reasonable sum to reflect the pain and suffering
of Mrs Robson as a consequence of her asthma was £10,000. That sum included
an element in respect of loss of congeniality of employment.
[83] Interest should be awarded at one-half of the judicial rate on one
half of the solatium (as representing
the past) from the date of diagnosis which Mr McGregor identified as about
August 2003. It appears from the medical
records that the first prescription was issued on 22 August 2003 and that seems a reasonable date for this
purpose.
[84] In Mr McGregor's submission, there was little difference
in opinion of the two professors - Ayres and Seaton. The only medical difference was that, in
terms of both their written medical reports and oral evidence, Professor Seaton
had attempted to categorise the pursuer's condition.
[85] Professor Seaton in his oral evidence supported his written
opinion (with the exception of one point in relation to impact of smoking). He identified the pursuer as someone who has
mild airway irritability and minimal impairment of lung function. He did not consider her to suffer from any
significant disability.
[86] Professor Ayres' two reports are productions No. 6/28 and 6/29
respectively. He made no assessment of
the level of disability (paragraph 30 of Production No. 6/28 and the opinion
in Production No. 6/29). Professor Ayres
was also given the opportunity to provide an assessment of Mrs Robson's
status as an asthmatic during cross-examination (at pages 77B to 79F of
the Report of the Commission Production No. 22). Mr McGregor submitted that there was a
marked reluctance to define the level of disability to the point that there was
considerable difficulty in assessing quantum
based upon Professor Ayres' reports and oral evidence.
[87] The opinion of Professor Seaton did have clarity and that
was amplified in his oral evidence. In
short, his position was that the pursuer does have asthma caused by
occupational exposure. That is not in
any way challenged. He accepts that
during the initial period when her symptoms came to fore (in particular the
period in 2003 leading to diagnosis by her GP in August) these symptoms
were unpleasant and may well have been painful.
[88] However, since the diagnosis, Mrs Robson has been treated
with some degree of success to the extent that, with the daily use of an
inhaler, she controls her symptoms. With
this control of her symptoms, she is able to lead as normal a life as
possible. She is susceptible to
irritants such as chemicals and smoke.
However, it is essential to put this into context. Professor Seaton was asked what happens
when Mrs Robson is aggravated by, for example, chemicals. He explained that she would feel symptoms
coming on, tightness of the chest and a degree of breathlessness. In those circumstances, she reaches for her
relief inhaler, takes two puffs and within five minutes she returns to
(although Mr McGregor hesitated to use the word) "normal". There are and will continue to be occasions
when she will catch a cold and her symptoms will be exacerbated to a greater
extent. But again, this was put into
context by Professor Seaton. In
such a circumstance, Mrs Robson may have to obtain antibiotics or other
medication designed to relieve her symptoms and allow her to return to daily
activities such as work. It is of note
that there was no evidence suggesting that she has been absent from her present
employment as a consequence of asthma, a job she has been doing since 2004.
[89] Professor Seaton recognised the difficulty of categorising
such patients. However, he indicated that
he used three descriptions, mild, moderate and severe. An important factor in determining which
label is appropriate is the level of interference in the patient's life. Mrs Robson mentioned physical exercise
and inevitably focused upon her asthma in this connection. In Mr McGregor's submission other
factors must also be borne in mind such as:-
- Fitness - many individuals without asthma
will be breathless cycling for three quarters of a mile uphill.
- Anxiety - Mrs Robson was anxious but
there was no evidence to establish a link between asthma and anxiety.
- Smoking - it was important to bear in mind
the one difference between Professor Seaton's report and his evidence
and that is the relevance of Mrs Robson's history of smoking. Under cross-examination, Professor Seaton
agreed that Professor Ayres is probably correct in his assertion that
an element of Mrs Robson's airways obstruction is the consequence of
her smoking history. Mrs Robson
has asthma but, in Mr McGregor's submission, the defenders cannot be
liable for that proportion of obstruction that is a consequence of
smoking. As to what that proportion
is, Professor Ayres was unable to estimate.
[90] In Mr McGregor's submission, the ultimate position of Mrs Robson
was that her account of her symptoms was not materially "out of sync" with the
opinions of the two medical experts.
[91] She had a tendency to focus upon the moments when her condition
has been irritated by smoke or aerosols but, to be fair to her (when some sort
of chronology of her symptoms was established through cross-examination) she
accepted that she improved between July and November 2004 and that the
description of her doing "pretty well" was correct as at May 2006.
[92] Mrs Robson also accepted that there were a number of factors
that caused her to wake at night or have restless nights. She may cough at night. Professor Seaton indicated that many
people without asthma cough at night, but there was insufficient evidence in Mr McGregor's
submission to link Mrs Robson's night wakening and her asthma. There was the evidence of other factors which
contradicts such a position. There were
recurring doubts highlighted in Professor Ayres' reviews and the GP records
about the connection. This was important
when considering the impact on her daily life which necessarily includes night
time.
[93] It was clear, in Mr McGregor's submission, that there were
other extraneous factors which have impacted upon Mrs Robson's daily life. There was her evidence that her hypothyroid
has affected her feet. She compared it
to walking on broken glass. She takes
medication for this. She had felt tired
over a long period of time and saw this is a consequence of night wakening for
which there are a number of factors. So
when it was put to her that her asthma had little impact on her daily life, she
was rather evasive wishing to focus on the occasional bouts of exacerbation of
her asthma that she could suffer. Mr McGregor
did not criticise her for doing so but the evidence of her main daily activity,
namely her work, indicated that there is little impact on her life other than
taking her inhaler in the morning when she wakes and at night when she
retires.
[94] Mr McGregor submitted that there was a telling response
from Mrs Robson to the assertion that she had little significant
disablement as a consequence of her asthma.
There was a hesitation before she answered "No, not really."
[95] Mr McGregor submitted that the evidence concerning Mrs Robson's
condition can be encapsulated thus:-
- Mrs Robson has asthma,
- there was a period when it caused her difficulties,
- however, it is now under control - to the extent
that she leads a normal daily life with the exception of occasional bouts
which are relieved by taking her inhaler, and
- there is no risk of deterioration of her
condition.
This was the summary provided by Professor Seaton
and it was not challenged under cross-examination.
[96] Mr McGregor submitted that the pursuer's position was not
adequately served by the categorisation adopted by the JSB Guidelines. On one view, there was more of a subjective
element which took this condition outwith any categorisation as such. To try and slot the pursuer's condition into
a category is difficult and not one which is well served by the categories in
the JSB Guidelines.
[97] In Mr McGregor's submission, this truly was a case to be
determined on its own facts and circumstances insofar as quantum is concerned.
[98] He submitted that £10,000 was both reasonable and
appropriate because her condition was under control and she managed it through
her medication. She was not suffering
from daily episodes of breathlessness.
She took her preventative inhaler each day. The necessity of taking an inhaler on a daily
basis was a consequence of her "injury" but it was not a manifestation or
recurrence of that "injury".
Disadvantage
in the labour market
[99] Mr McGregor submitted that there was no disadvantage in
the labour market.
[100] At best for the pursuer, she cannot work again for the defenders,
or in bakers, or on cosmetic counters, or in strenuous employment.
[101] Against that she had taken up employment almost immediately in
another factory. She left this because
of a separate medical condition. She then
progressed to her current employers where she began as a cleaner and has now been
promoted to a position of manager with administrative responsibilities. She had never attained such a high position
previously.
[102] It was clear that since leaving the defenders, far from being
disadvantaged, she has positively enhanced her viability in the job
market. She may be unable to undertake
strenuous jobs, such as Mathers, but it was clear that other factors play a
prominent role. Her history of tennis
elbow would be a primary factor in any perceived disadvantage. Age and general fitness would also go against
the pursuer in vying for a job which was a strenuous or physically challenging.
[103] With the pressure of time to turn aircraft around there might be
a strenuous element to aircraft cleaning.
However, there was no evidence that she could not do that job. She has no desire to work in a bakers. Were she to lose her current job, and her
evidence about that was relatively vague, she would present as someone with
experience of managing others, hiring others, and preparing necessary
paperwork. She currently earns more
money than she ever did at Grampian.
There was no evidence that she has lost any time whilst at Aberdeen
airport. On the contrary, she explained
that she currently does 48 hours per week.
In Mr McGregor's' submission, the pursuer was now better equipped
for the job market despite her asthma.
She has other medical factors, such as tennis elbow, hypothyroid and
high blood pressure which would not be overshadowed by asthma. Any perceived disadvantage due to asthma (and
Mr McGregor did not concede that there was any) is more than offset by her
control and management of her condition and her subsequent career
enhancement. As Professor Seaton
indicated, there are many individuals who have asthma and it does not impair
either their ability to hold down a job or obtain one.
[104] In short, Mr McGregor invited me to find defenders liable in
respect of solatium only to the
extent of £10,000 plus interest and to make no awards in respect of
disadvantage, wage loss or prescription charges.
Conclusions
[105] I have taken into account all the submissions of counsel -
including the very sensible suggestion that I should proceed on the basis of
the facts and circumstances of this particular case.
[106] In the whole circumstances, in my opinion, damages in respect of
the pursuer's asthma can be assessed fairly and reasonably as follows:-
|
|
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|
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|
Heads of Claim
|
|
|
|
Assessment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1. Solatium
inclusive of interest
|
|
£
|
18,834.79
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2. Past loss of earnings
inclusive of interest
|
|
2,055.92
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. Disadvantage on the
labour market
|
|
4,000.00
|
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|
|
|
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
Total heads of claim
|
|
|
|
24,890.72
|
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|
|
|
|
|
|
[107] I have set out my conclusions and my calculations in an associated
spreadsheet (annexed) which I refer to for its terms.
[108] The spreadsheet is, I hope, self-explanatory but it may be
helpful to add a few words of explanation.
Solatium
[109] I have already set out (above) the competing contentions of
parties relating to solatium.
[110] Ultimately the question is one of fact and degree - for my
assessment.
[111] A key element of the claim depends on my assessment of the
pursuer's evidence.
[112] In the whole circumstances, and on the evidence before me, I
accepted Mr Stuart's submissions to the effect that the pursuer was a
credible and reliable witness.
[113] I took into account that Professor Ayres was "slightly
concerned" that some of the peak flow recordings may have been inaccurate (see
the Report of Commission No.22 of Process at page 54C) but that did not
affect my ultimate conclusion on credibility or reliability.
[114] Professor Seaton did not consider Mrs Robson to be
deliberately or intentionally exaggerating her symptoms. He was of the view that any disproportion was
part of Mrs Robson's natural reaction to her asthma given her disposition
- that it was a trait commonly seen amongst asthmatics.
[115] In my opinion, on the evidence outlined above, the appropriate
award in relation to solatium is £17,500
with interest on one-half thereof (£8,750) at the rate of 4% per annum
from 22 August 2004
until the date of assessment.
Loss of earnings
[116] The defenders submitted, inter
alia, that there was no evidential basis for any award in relation to loss
of earnings. I do not agree.
[117] It is a matter of agreement that the pursuer's employment with the
defenders was terminated on 9 April
2004. She lost her job due
to her occupational asthma. The
pursuer's evidence was that she was dismissed because she could not do the
job. Those facts, coupled with the
employment and wages details which are set out in the Joint Minute of
Admissions (No.23 of Process) are sufficient to provide a foundation for a
claim for loss of earnings.
[118] In my opinion, the appropriate award in relation to loss of
earnings is one based on the figures suggested by Mr Stuart which I total
to be £1,663 - with interest thereon at 8 % from 1 July 2004.
Disadvantage on the labour
market
[119] The defenders also submitted that there was no evidential basis
for any award in respect of disadvantage on the labour market. I do not agree.
[120] The pursuer impressed as being resourceful individual but I am
satisfied that she is now at some disadvantage.
However, I do not accept that her disadvantage merits an award as high
as £10,000.
[121] In my opinion, on the evidence which has been outlined above, an
appropriate award under this head would be £4,000.
[122] In my opinion that would be fair and reasonable.
Total Award
[123] The total of all those heads of claim amounts to £24,890.72
inclusive of interest to 14 June 2007
- all as set out in the spreadsheet annexed.
Decision
[124] For the reasons outlined above, I propose to grant decree for
payment by the defenders to the pursuer of the sum of £24,890.72 Sterling
with interest thereon at the rate of 8% per annum from 14 June 2007 until payment.
[125] I shall reserve the question of expenses.
|
Annexation
: Assessment of Damages
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Mrs Joyce
Robson v Grampian Country Chickens (Rearing) Ltd
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July
2008
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Lord
Kinclaven
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PART
1: GENERAL
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Background
details of dates, age, time periods and interest
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Dates
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Pursuer's
date of birth
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13/04/1950
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Prescription
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22/08/2003
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Employment
terminated
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09/04/2004
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Date of
assessment
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14/06/2007
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Age
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Pursuer's
age at time of termination
|
|
54.03
|
years
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Pursuer's
age at date of assessment
|
57.21
|
years
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Interest
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From
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22/08/2003
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To
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14/06/2007
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Period
|
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3.81
|
years
|
|
|
|
At half
judicial rate
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4.00
|
% pa
|
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Interest
as multiplier
|
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|
15.25
|
%
|
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PART 2: HEADS OF CLAIM
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1. Solatium - for pain and suffering
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Pursuer claims
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£
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20,000.00
|
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Having regard to the defenders' submissions
|
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Allow
|
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£
|
17,500.00
|
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|
Apportion to the past
|
|
|
0.50
|
%
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|
i.e.
|
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Past Solatium
|
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|
8,750.00
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Plus
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Interest on past solatium
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|
at half judicial rate
|
4.00
|
%
|
|
|
|
|
|
i.e.
|
x
|
15.25
|
%
|
1,334.79
|
|
|
|
|
|
|
|
|
|
|
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|
|
Future Solatium
|
|
|
8,750.00
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total solatium inclusive of interest
|
|
£
|
18,834.79
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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2. Loss of Earnings
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Pursuer claims
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|
1
|
Grampian Country Chickens (Rearing) Ltd
|
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Period (1)
|
From
|
16/05/2003
|
|
|
|
|
|
|
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To
|
22/08/2003
|
|
£
|
267.00
|
|
|
|
|
|
|
|
|
|
|
|
|
Period (2)
|
From
|
16/01/2004
|
|
|
|
|
|
|
|
To
|
09/04/2004
|
|
£
|
256.00
|
|
|
|
|
|
|
|
|
|
|
|
2
|
Mathers (Inverurie) Ltd
|
|
|
£
|
867.00
|
|
|
|
|
|
|
|
|
|
|
|
3
|
Aberdeen Aircraft Cleaning
Company
|
£
|
273.00
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
£
|
1,663.00
|
|
|
|
|
|
|
|
|
|
|
|
|
Plus
|
|
|
|
|
|
|
|
|
Interest
|
from
|
01/07/2004
|
|
|
|
|
|
|
|
to
|
14/06/2007
|
|
|
|
|
|
|
|
|
2.95
|
years
|
|
|
|
|
|
at
|
|
8.00
|
%
|
|
|
|
|
|
i.e.
|
x
|
23.63
|
%
|
£
|
392.92
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
|
|
Allow
|
|
|
|
£
|
2,055.92
|
|
|
|
|
|
|
|
|
|
|
|
|
Total loss of earnings inclusive of interest
|
|
£
|
2,055.92
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. Disadvantage on the
labour market
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pursuer claims
|
£
|
10,000.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allow
|
|
£
|
4,000.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Disadvantage on the labour market
|
|
£
|
4,000.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
|
|
|
|
£
|
24,890.72
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PART 3: SUMMARY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Heads of Claim
|
|
|
|
Assessment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1. Solatium inclusive
of interest
|
|
£
|
18,834.79
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2. Past loss of earnings
inclusive of interest
|
|
2,055.92
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3. Disadvantage on the
labour market
|
|
4,000.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
|
|
Total heads of claim
|
|
|
|
24,890.72
|
|
|
|
|
|
|
|
|
|
|
|
|
Less
|
Benefits
|
|
|
|
0.00
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
£
|
24,890.72
|
|
|
|
|
|
|
|
|
_________
|
|
|
|
|
|
|
|
|
|
|
|
|
Plus
|
Interest
|
|
|
|
|
|
|
|
|
at
|
8.00
|
%
|
|
|
|
|
|
|
from
|
14/06/2007
|
|
|
|
|
|
|
|
until
|
payment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
