DANIEL DAVIDSON AGAINST NORTH LANARKSHIRE COUNCIL
SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES & GALLOWAY
AT AIRDRIE
PD91/13
2014SCAIR4
JUDGMENT BY
SHERIFF PRINCIPAL B A LOCKHART
in
NOTE OF APPEAL
in causa
DANIEL DAVIDSON
Pursuer and Respondent;
against
NORTH LANARKSHIRE COUNCIL
Defenders and Appellants;
Act: B Fitzpatrick, Advocate
Alt: N Young, Solicitor, Motherwell
Airdrie, 17th December 2014
The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff’s interlocutors of 1 August 2014 and 4 September 2014 complained of apart from inserting in finding in fact and in law of the interlocutor of 1 August 2014 at line 6 on page 3 after the words “1 August 2013” the following: “at the rate of 8% per annum on £2000 from 1 August 2013 until payment, and at the rate of 4% per annum on £1500 from 1 August 2013 until payment in respect of solatium”; and deleting the words “and at the rate of 8% per annum thereafter until payment in respect of solatium”; ordains parties to lodge written submissions in respect of the expenses of the appeal with his secretary … by 16 January 2015; meantime, refuses to sanction the appeal as suitable for the employment of counsel.
NOTE
[1] In this case the defenders admit liability to the pursuer in respect of an accident in the course of his employment in Cumbernauld. The only issue before the court was quantum. He was driving a JCB in Cumbernauld and was instructed to lift waste disposal skips from civil amenity areas and take the skips to a disposal site where the waste was compressed. On one occasion he was told to park the JCB in a shed. Unfortunately, on driving the JCB into the shed, he hit a door lintel and building rubble came crashing down in front of him. It was accepted that the accident was caused by a lack of training given to the pursuer. He thought he was going to die. He suffered various symptoms as a result of this accident which occurred on 5 March 2013. The sheriff made the following Findings in Fact:
“…
(3) On or around 5 March 2013 the pursuer was involved in an accident in the course of his employment in Cumbernauld …
(4) As a result of the accident the pursuer suffered an adjustment disorder, manifested mainly by anxiety based symptoms. He did not suffer any physical injuries. The accident was a life threatening experience.
(5) The pursuer did not sleep for 2 nights following said accident and required to consult his GP, who prescribed a hypnotic and referred him for counselling. He attended 2 sessions of counselling.
(6) The pursuer’s sleep pattern was disturbed and he awoke during the night with frightening dreams. As at the date of proof (23 May 2014) the pursuer’s sleep pattern was still disturbed to a more limited extent.
(7) The pursuer became irritable towards his family and his libido was affected. He suffered mood swings and was generally disinterested. He was not able to pursue his hobby of fishing for a number of weeks after the accident.
(8) The pursuer was initially unable to talk about the accident to family or friends. He was able to confide in his sister‒in‒law who supported him.
(9) The pursuer was not able to be left alone until he returned to work (1 August 2013). His wife, daughter and sister‒in‒law ensured one of them was with him at all times.
(10) The pursuer suffered flashbacks of the accident which reduced him to tears.
(11) After 7 weeks the pursuer was able to return to work.
(12) The pursuer was diagnosed by Dr Martin Livingston, Consultant Psychiatrist, as suffering from an adjustment disorder from which he did not recover until on or about 1 August 2013.
(13) The pursuer is now more cautious and tends to double check things. This causes tension between the pursuer and his wife.
(14) The pursuer is required to repay to the defender recoverable sick pay within the terms of his contract of employment amounting to £851.91.”
[2] In the joint minute of the pre‒proof conference dated 28 April 2014, parties agreed:
“that the psychiatric report relating to the pursuer prepared by Dr Martin Livingston, Consultant Psychiatrist, and lodged as pursuer’s production 5/1, contains a true and accurate account of the pursuer’s injury and treatment, caused as a result of the accident as averred on record; the nature and extent of the injuries from which the pursuer was suffering when examined by the said Martin Livingston on 14 August 2013; and the prognosis of said injuries”.
The sheriff concluded in light of these comments that as at 1 August 2013 the pursuer had recovered to the point that within the last few weeks that he no longer fulfilled the criteria for an adjustment disorder.
[3] The defenders lodged a note of appeal against the award by the sheriff of solatium in the sum of £3,500. They did not contest an additional sum of £300 inclusive of interest in respect of services in terms of the Administration of Justice Act 1982 or that the amount of recoverable sick pay due by the pursuer to the defender which had been agreed at £851.81. There had been no loss of earnings.
[4] I heard parties on this appeal in Airdrie Sheriff Court on 9 December 2014. I propose to deal with the appeal under the following heads:-
(A) whether the sheriff erred, having regard to the terms of the joint minute, in allowing oral evidence from the pursuer and his wife, Mrs Myra Davidson to be led;
(B) whether the sheriff erred in law in taking into account what are described as “residual difficulties” following certification by Dr Martin Livingston that as at 1 August 2013 he no longer fulfilled the criteria for an adjustment disorder;
(C) whether £3,500 was an excessive sum for solatium standing the terms of Dr Livingston’s report, and the sheriff’s findings in fact;
(D) Whether the sheriff erred in awarding interest at 8% on £3,500 from 1 August 2013
(A) Whether the sheriff erred, having regard to the terms of the joint minute, in allowing oral evidence from the pursuer and his wife, Mrs Myra Davidson to be led
[5] At the proof the solicitor for the defenders objected to the solicitor for the pursuer leading the pursuer and his wife as witnesses, indicating that the medical evidence had been agreed. It was said that there was sufficient information in the psychiatric report lodged to determine quantum. The sheriff allowed the pursuer and his wife to give evidence at it seemed to her that the evidence would be helpful in considering the psychiatric report, as indeed it proved to be. I have considered the terms of the psychiatric report and the evidence given by the pursuer and his wife. It is my opinion that a proper construction of their evidence is that it is clarifying what is stated in the psychiatric report. I agree with the sheriff’s conclusion that the oral evidence would be helpful, as the psychiatric report was not conclusive in its terms. The report made clear that the pursuer as at 1 August 2013 no longer fulfilled the criteria for an adjustment disorder. However, the report does not make clear the nature and extent of any residual symptoms which the pursuer might suffer after that date, although apparently conceding there could be some. I do not accept the ground of appeal that the sheriff erred in allowing oral evidence to be led. This ground of appeal fails.
(B) Whether the sheriff erred in law in taking into account what are described as “residual difficulties” following the pursuer’s recovery from an adjustment disorder
[6] In this ground of appeal the solicitor for the defenders indicated that he relied on the dicta of Lord Lloyd of Berwick in Page v Smith [1996] 1 AC 155 at page 197H where he said:
“A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness…”
It was submitted that the pursuer could not claim for any residual symptoms after Dr Livingston had concluded that by 1 August 2013 he no longer fulfilled the criteria of an adjustment disorder.
[7] The solicitor for the defenders further referred to Lord Lloyd of Berwick in the case of Page v Smith (supra) at page 190B-F where he stated:
“The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of ‘personal injury’ is needed, it can be found in section 39(1) of the Limitation Act 1980; “‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition…” …there is no justification for regarding physical and psychiatric injury as different ‘kinds’ of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both.”
[8] Lord Lloyd of Berwick then stated at 197F:
“…the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. … a defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for the nervous shock unless the shock results in some recognised psychiatric illness…”
[9] In the case of Simmons v British Steel plc [2004] SC (HL) 94 Lord Rodger stated at paragraph 55:
“…regret, fear for the future, frustration at a slow pace of recovery, and anger are all emotions that are likely to arise, unbidden in the minds of those who suffer injuries in an accident such as befell the pursuer. If, alone or in combination with other factors, any of these emotions result in stress so intense that the victim develops a recognised mental illness, there is no reason in principle why he should not recover damages for that illness.”
This was conceded by the solicitor for the defenders. However his point was that, as the pursuer did not suffer from an adjustment disorder after 1 August 2013, the sheriff was not entitled to take into account any symptoms exhibited by the pursuer after that date.
[10] Counsel for the respondent did not accept that his client’s right to damages for symptoms resulting from the trauma of the accident came to an end because he had recovered to such an extent that he no longer fulfilled the criteria for an adjustment disorder. It was significant that Dr Livingston recorded Mrs Davidson as stating to him that her husband was significantly better, but “not 100%”. This would appear to give the impression that, although the criteria for adjustment disorder were no longer met, there was nothing out of the ordinary in the pursuer suffering residual symptoms after the date where he failed to meet the criteria. Counsel for the pursuer suggested that the argument put forward on behalf of the defenders went “a step too far”. Emphasis was put on the statement of Lord Lloyd in Page v Smith (supra) where it was stated “a defendant who is under a duty of care to the plaintiff… is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness.” Even if that statement was true, it was argued by counsel for the pursuer, the symptoms resulted from a recognised psychiatric illness namely an adjustment disorder. He emphasised again that, although as at 14 April 2013 the pursuer no longer met the criteria for an adjustment disorder, there was no statement by Dr Livingston that any continuing symptoms were not related to his suffering from this psychiatric illness after the accident.
[11] In my opinion the submissions on behalf of the pursuer are well-founded. It was the evidence of the pursuer, his wife, and Dr Livingston that, having suffered severe symptoms attributed to a psychiatric illness, he continued to suffer, albeit in a much more minor manner, symptoms which had their origin in that illness. It is my opinion that the sheriff was entitled to take into account residual difficulties following the pursuer’s recovery from the adjustment disorder.
(C) Whether £3,500 was an excessive sum for solatium standing the terms of Dr Livingston’s report, the terms of the closed record, and the sheriff’s findings in fact
[12] The solicitor for the defenders first submitted that there was no record for any residual disabilities. Condescendence 5 was in the following terms:
“As a result of the accident, the pursuer suffered a psychiatric injury in the form of an adjustment disorder manifested mainly by anxiety based symptoms. At the moment of the accident the pursuer thought he was going to die. Immediately following the accident he was disorientated. Thereafter he experienced flashbacks, in particular he persistently re-experienced the incident and in particular the banging sound which took place and the dust and rubble surrounded him and was on occasion crying with the recollection of the incident. He would be wakened frequently during the night and suffered frightening dreams. He was unable to sleep and was absent from work for approximately seven weeks. He attended his GP, Dr Macfarlane, … where he was described as hypnotic. His personality changed. His relationship with his friends and family was affected. He underwent a course of counselling provided by his employer. The pursuer required to be supported emotionally in particular he would ruminate and become upset when alone. …The pursuer’s claim is therefore for: (1) solatium; (2) services; (3) loss of earnings; and (4) repayable sick pay.”
It was submitted on behalf of the defenders that these averments did not allow any consideration of residual symptoms after August 2013. Counsel for the pursuer submitted that the averments were in the perfect tense and there should be no cut off.
[13] While I have to say that the pleadings could perhaps have been more happily drawn, I take the view that there is just enough to allow me to consider the question of residual symptoms.
[14] The solicitor for the defenders went on to submit that there were insufficient findings in fact by the sheriff to allow a consideration of any residual symptoms after August 2013. Accordingly damages should be “cut off” as at that date.
[15] Counsel for the pursuer conceded that the findings in fact were brief and, having regard to what is stated in the note, could have been substantially fuller. He was conscious of the statements in Macphail (3rd ed) at paragraph 17.05:
“The Findings in Fact should be stated in sufficient detail to explain and justify the decerniture. They should include all the facts material to the contentions of either of the parties, even though not material to the point in which the judgment proceeds…”
Having noted that position counsel submitted that, in searching for findings for residual symptoms, he was entitled to look at:
(a) Finding in fact (6)
“The pursuer’s sleep pattern was disturbed and he awoke during the night with frightening dreams. As at the date of proof the pursuer’s sleep pattern was still disturbed to a more limited extent.”
It was submitted this was a clear finding that symptoms existed after August 2013 which the sheriff was entitled to take into account in assessing quantum.
(b) Finding in fact (7)
“The pursuer became irritable towards his family and his libido was affected. He suffered mood swings and was generally disinterested…”
It was conceded that the pursuer could not rely on: “He was not able to pursue his hobby of fishing for a number of weeks after the accident”. In any event, it was submitted I was entitled to look at the terms of the Note to explain any of these findings. In the account of the pursuer’s evidence, the sheriff records:
“The pursuer explained that after he did return to work he really did nothing else. He came home from work and was not interested in pursuing any of his hobbies such as fishing. He felt his personality changed and nothing seemed to please him. When performing his duties as a retained fireman he was apprehensive and always assessing risks… the pursuer described himself as someone who prefers to be busy but found himself just sitting thinking about the accident. He described himself prior to the accident as being a happy-go-lucky type of person and was someone who always did his best to help. The pursuer felt he is now more withdrawn and less enthusiastic than previously.”
The pursuer’s wife is recorded by the sheriff as stating:
“Mrs Davidson also spoke about the change in her husband’s personality from being an outgoing happy-go-lucky person to someone who is now very cautious and nervous. He has developed a habit of double checking everything which she explained has led to arguments between them… Mrs Davidson explained that her husband is now (as at the date of the proof at 5 March 2014) overly emotional about some things. She said she is aware that he does still wake up during the night and sometimes talks in his sleep. Mrs Davidson described her husband as always being the backbone of the family but now she and her daughter have to help him. She felt that the accident would stay with him for the rest of his life… she felt it was better for her husband for her to be there all the time.”
It was submitted on behalf of the pursuer that I was entitled to take these matters in the note into account in view of the nature of the formal findings in fact which the sheriff had made.
(c) Finding in fact (13)
“The pursuer is now more cautious and tends to double check things. This causes tension between the pursuer and his wife.”
It was submitted this could only be read as being at the date of the proof, which was on 5 March 2014, some one year after the accident.
[15] In the interests of justice, I do not feel it is appropriate that a strict view should be taken of the nature and extent of the findings in fact. As I understand it, the evidence of the pursuer and his wife was not subject to challenge. In particular there are findings in fact regarding sleep pattern, irritability, mood swings, more cautious approach and tendency to double check things and tension between the pursuer and his wife which is more particularly explained in the sheriff’s note.
[16] Although I do so with some hesitation I am prepared to deal with the claim for solatium on the basis which I have set out above.
[17] I have been able to consider the various cases to which the sheriff was referred, namely: Welsh v FBR Contractors 2006 CLY 3141, Chilcott v WM Armstrong (Longtown) Ltd 2007 CLY 3078, Hazlett v Robinson 2004 NIQB 17, P (a child) v Teague 2006 CLY 3074, D (a child) v Boycott 2008 CLY 2784, Quinn v Birmingham City Council, 3 March 2001 Torquay County Court, Meek v Lewis, 7 December 2001, Gloucester County Court and Puplett v Reagan 2008 CLY 2837. I have also been able to consider the Judicial Studies Board Guidelines, chapter 4 of the 12th edition which deals with psychiatric and psychological damage.
[18] The award which the sheriff made, standing the nature an extent of the findings in fact explained as I have set out, was certainly generous. However, this was a discretionary decision on the part of the sheriff in light of the evidence which was placed before her. She had the benefit of seeing and hearing the pursuer and his wife. I do not consider there are any grounds to allow me to interfere with the sheriff’s exercise of the discretion in awarding £3,500 for solatium in light of the information available to her.
(D) Interest
[19] It was not raised by parties, but it is a matter of comment by me that the sheriff allowed interest at 4% on £3,500 from 5 March 2013 to 1 August 2013 and that at the rate of 8% per annum thereafter until payment. I have to say this would appear to suggest that a full recovery had been made by the pursuer as at 1 August 2013. This is not the position which the sheriff found. Parties were agreed that it was open to me to apportion the sum awarded between the solatium pre- and post‑1 August 2013. In light of the evidence available I consider an appropriate division would be £2,500 pre 1 August 2013 and £1,000 post 1 August 2013. I will not interfere with the sheriff’s award of 4% from 5 March 2013 to 1 August 2013. Interest will be at 8% on £2,500 from 1 August 2013 and at 4% from 1 August 2013 on £1,000.
Conclusion
[20] I shall accordingly adhere to the sheriff’s interlocutor apart from the adjustment which I have made regarding the rate of interest. The appeal accordingly fails. Expenses will be awarded to the pursuer. I was asked by counsel for the pursuer to certify the appeal as suitable for the employment of junior counsel. I have given this matter careful consideration and I have reached the view that, in light of the sum involved, the employment of counsel cannot be justified. Although the case included an interesting point namely, whether, because Dr Livingston considered that as at 1 August 2013 the pursuer no longer fulfilled the criteria for an adjustment disorder, the pursuer was entitled to claim solatium for residual difficulties. Having reviewed the cases of Page v Smith and Simmons v British Steel plc (supra), I came to the conclusion that the pursuer was so entitled. I do not think it reasonable, when the sum awarded was £3,500, that the defenders might have to pay, if found liable for the expenses of the appeal, the cost of the pursuer having the benefit of counsel’s assistance. I accordingly shall not sanction the employment of junior counsel.
[21] I was advised that there was a tender and in these circumstances it was not appropriate to consider the question of expenses of the appeal on 9 December. It was agreed that parties would submit written submissions when my judgment was issued. I shall accordingly now invite parties to lodge written submissions with my secretary by 16 January 2015.