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LINDA HENRY v. RENTOKIL INITIAL PLC, CAPTIVE


Submitted: 13 March 2008

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Eassie

Lord Reed

Sir David Edward, Q.C.

[2008] CSIH 24

OPINION OF THE COURT

delivered by SIR DAVID EDWARD, Q.C.

in

APPEAL

From the Sheriffdom of North Strathclyde at Dumbarton

by

LINDA HENRY

Pursuer and Respondent;

against

RENTOKIL INITIAL PLC, CAPTIVE

Defenders and Appellants:

_______

Act: G Clarke; HBM Sayers Giusti Martin (Pursuer and Respondent)

Alt: Weatherston, Solicitor Advocate; Brechin Tindal Oatts (Defenders and Appellants)

13 March 2008

[1] This is an appeal from the Sheriff Court at Dumbarton. It was set down for hearing for four days on the basis of an estimate provided by the appellants. That estimate was repeated when the appeal called By Order on 4 January 2008. Nothing was done before the hearing to inform the Court that the four days allotted would not be required.

[2] In the event, the appellants' submissions took not more than three hours and the hearing was completed by mid-morning on the second day. In consequence, two and a half days of Court time were wasted and other litigants were deprived of the opportunity of an earlier hearing of their case. The explanation - or excuse - offered was that instructions as to the arguments to be advanced were awaited from the appellants' insurers.

[3] Lawyers who conduct litigation before the courts of Scotland owe a duty to the Court as well as the client. The decision whether an appeal may properly be pursued, the preparation of Grounds of Appeal and the furnishing of estimates of the time required are tasks that engage the professional responsibility of the lawyers concerned. Proper and timeous discharge of that professional responsibility is not conditional on instructions from clients or insurers. It is greatly to be regretted that this was not kept in view by those acting for the appellants in the present appeal.

Background

[4] On 12 January 2000, the pursuer and respondent (hereafter "the pursuer") was injured while working as a nurse in the National Health Service at Canniesburn Hospital. She had been employed there since 4 October 1999, having previously been employed both in the NHS and in the private sector.

[5] It is admitted for the purpose of the present action that the pursuer's injuries were caused by the negligence of an employee of the defenders and appellants (hereafter "the defenders") for which they are vicariously liable. The issues at the Proof before the Sheriff and on appeal in this Court were therefore concerned with quantum only.

[6] At the Proof eight witnesses were led for the pursuer. Their evidence was largely unchallenged in cross-examination. No evidence was led for the defenders. After the Proof both parties put in detailed written submissions which were referred to in the course of the appeal. It appears that there was also a hearing on those submissions before the Sheriff but no argument was advanced to us on the basis of what was said there.

[7] The nature and consequences of the pursuer's injuries are set out in the Sheriff's Findings in Fact numbers 4 to 12 as follows:

"4. The pursuer's life has been ruined by the consequences of said accident. Her family life has been disrupted. Her social life has been devalued and her chosen career destroyed.

5. Throughout her suffering the pursuer has been uncomplaining, resolute and determined to make the best of things. She is no malingerer and has always done her best to mitigate her losses.

6. Inter alia the pursuer sustained an injury to her hip. This was painful and treated with analgesics but resolved within six months.

7. The principal injury suffered by the pursuer was to her brachial plexus. This is a complex network of nerves in the area of the neck and shoulder. Injury to it can materially affect the function of the hand and arm.

8. As a result of the injury described in above the pursuer suffered severe pain for about two years.

9. The pursuer received medical and occupational health treatment and guidance from the date of her accident until March 2002 when it was considered that there could be no further improvement in her condition. Included in the said treatment was the application of first a fixed and then an active splint both designed to arrest degenerative changes in the hand and arm. These were unsightly and caused the pursuer some embarrassment.

10. As a result of the injury to the brachial plexus the pursuer has lost the function of her left (non-dominant) hand. She has lost a significant degree of function in her left arm. These conditions are likely to be permanent. She will never again be fit for her previous employment. She is unable to perform any task requiring the use of two hands.

11. As a consequence the pursuer's employers terminated her contract of employment on 7th October 2001.

12. The pursuer is embarrassed to show or to be seen to try to use her left hand. She holds it unnaturally. She has no feeling in her left hand. She has no grip. In cold weather the hand can cause discomfort. She is unable to drive an unadapted motor vehicle. The pursuer is unable to carry out many domestic tasks. The quality of her day to day existence has been materially impaired and she had incurred and will incur costs in respect of modifying a car and purchasing modified articles for every day use all as more fully explained in the report by Allison Beattie 5/2.5 of process."

Mr Weatherston, who appeared for the defenders at both the proof and the hearing of the appeal, did not challenge the terms of any of those Findings in Fact.


[8] The Sheriff awarded a total of £315,306.45 made up as follows:

Head

Amount £

Solatium (past inc. interest)

22146.85

Solatium (future)

12500.00

Loss of Earnings (past inc. interest)

165131.93

Loss of Earnings future to 31/08/2009

76950.00

Loss of Earnings from 01/09/2002

23750.00

Services from others (past inc. interest)

6327.67

Services from others (future)

5000.00

Additional Expenses

3500.00

Total

315306.45

[9] The defenders challenged the award under each and every one of those heads.

Solatium

[10] The Sheriff assessed solatium at £30,000 of which he attributed £17,500 to the past.

[11] In attacking the Sheriff's award, Mr Weatherston referred to two cases of injury to the shoulder: Penny v J Ray McDermott Diving International Inc, 2004 SLT 253, where the award was £25,000, and Doyle v Strathclyde Regional Council, 1994 SLT 524, where the award was £6,500. He submitted that the proper award in the present case would be between those two figures since in Penny there was an element of clinical depression absent in the present case.

[12] Mr Clarke for the pursuer referred us to the table for Orthopaedic Injuries prepared by the Judicial Studies Board (August 2006 edition) which suggests the following range of possible awards:

(A) NECK INJURIES

...........

(a) Severe

...........

(ii) Injuries which give rise to disabilities which fall short of those in (a)(i) above but which are of considerable severity; for example, permanent damage to the brachial plexus.

£38,175 to £76,350

...........

(C) SHOULDER INJURIES

(a) Severe

Often associated with neck injuries and involving damage to the brachial plexus (see A)(a)(ii)) resulting in significant disability.

£11,200 to £28,000

[13] It is not in dispute that the appropriate test to be applied in this case is whether the sum awarded by the Sheriff is "out of all proportion to the true sum which ought in the opinion of the appeal Court to have been awarded" - Purdie v William Allan & Sons, 1949 SC 477, per Lord Justice-Clerk Thomson at page 480.

[14] Standing the range of figures suggested by the Judicial Studies Board for injuries of the type sustained by the pursuer, the suggestion that the sum awarded by the Sheriff was "out of all proportion" to the sum that ought to have been awarded is wholly untenable. The appeal under this head must fail. Since there is no cross-appeal on this point, it is unnecessary for us to make any more detailed assessment of the appropriate award.

Past Loss of Earnings

[15] The Sheriff found in fact as follows:

"14. The pursuer was, until the accident, a career nurse with a special interest, training and enjoyment in paediatric nursing. She entered nursing at 17, was 31 at the date of accident and had every intention of making a lifetime career of it. She was well respected and qualified in her chosen career and would almost certainly have advanced further by way of promotion.

15. The pursuer undertook a course with a view to qualifying as a counsellor. She did not enjoy that. It did not suit her personality and she obtained no job satisfaction from it. She decided not to continue with another two years training because of this.

16. That decision was entirely reasonable.

17. The salary structure of nurses in the pursuer's position and the probability of her progress and promotion was such that a reasonable estimate of her wage loss from the date of the accident to date is £137992. The pursuer received statutory sick pay and payment from the defenders amounting to £7508.03."

Other than the figure of £137,992 in Finding in Fact 17, the defenders' solicitor advocate did not take issue with any of these findings.

[16] In his Note the Sheriff went on to say that

"The pursuer's employment history demonstrates a dedication and enthusiasm for her work and is sufficient to convince me well beyond a balance of probabilities that she could have expected (a) the normal increments associated with her rank at the date of the accident and (b) promotion over the years as she claimed."

He then dealt with points that were not insisted upon by the defenders before us and continued:

"While in principle I can find little fault with Mr Hennessy's [the pursuer's solicitor's] approach to calculating this head of damages as explained at pages 12 to 14 of his [written] submissions it is not an easy exercise to arrive at accurate figures.

As Mr Weatherston submits the pursuer's average earnings at the time of the accident can be calculated with some accuracy at £15,800. Applying the discernible percentage increment of 7.6% one arrives at the following figures [set out in a table bringing out a total of £137,992]. From that must be deducted the statutory sick pay and payment made by the defenders. These amount to £7,508.03, leaving a balance of £130,483.97. Again using the alphalaw calculator the interest on that sum for 2432 days comes to £34,647.96. Total past wage loss therefore amounts to £165,131.93."

[17] Mr Clarke for the pursuer conceded that the calculations put forward by Mr Hennessy were not correct. It is also clear on a close reading of Mr Weatherston's written submissions that he did not say that the pursuer's average earnings at the time of the accident could be calculated at £15,800 per annum. On the contrary, his figure was £13,365, the figure of £15,800 being his calculation of the appropriate net figure as at 14 October 2001 when the pursuer's employment with the NHS was terminated.

[18] In these circumstances, the Sheriff's calculation of past loss of earnings proceeded on an erroneous assumption, and we must approach the problem afresh. As became apparent from the rival submissions before us, it is possible to calculate past loss in such a way as to bring out a figure lower than that found by the Sheriff but also in such a way as to bring out a higher figure.

[19] There is no cross-appeal on this point. Accordingly, if the correct figure is lower than that found by the Sheriff, the appeal must be allowed. But if, on the other hand, the pursuer's past loss was, on the balance of probabilities, at least as high as the figure found by the Sheriff, then it will be sufficient to dismiss the appeal, as respects this head of loss, without making a more precise finding as to what the correct figure would have been.

[20] Mr Weatherston's approach was to take as a starting point the average of the pursuer's net earnings for the three months between October 1999, when she started work at Canniesburn, and January 2000, when the accident occurred. His final submission was that the appropriate figure for past loss inclusive of interest, after deduction of £7508.03 in respect of statutory sick pay and the payment to account, was £134,821.63 - i.e. about £30,000 less than the figure awarded under this head by the Sheriff (after the same deductions and inclusion of interest).

[21] Mr Clarke, on the other hand, started from the information given in a letter dated 7 November 2005 from Glasgow NHS Payroll Services which sets out the basic hourly rate and the monthly gross salary paid to a nurse of a similar grade (Grade F) to the pursuer over the period from 12 January 2000 to the date of the letter. He applied an uplift of 12% to represent the enhancements over and above the basic hourly rate which the pursuer could have expected to earn in respect of overtime, unsocial hours, etc. (The pursuer's expert, Mr Davies had suggested a figure of 15%.)

[22] On that basis Mr Clarke brought out a figure of £122,467.10 before deduction of £7508.03 in respect of statutory sick pay and the payment to account, and before applying interest - i.e. a figure about £15,000 less than the equivalent figure of £137,992 found by the Sheriff.

[23] In our opinion, Mr Clarke's approach to the calculation is to be preferred to that proposed by Mr Weatherston since it is more closely related to the documentary evidence as to basic rates of pay over the period and to the evidence of Mr Davies as to the appropriate enhancement percentage. Mr Davies' evidence on this point was neither contested in cross-examination nor contradicted by other evidence.

[24] Mr Clarke submitted that the shortfall of about £15,000 between the Sheriff's figure and his own calculation could be made up in one or other or both of two ways. First, he pointed to evidence given by Mr Davies that the pursuer would have been earning £24,000 net in 2004-05 - i.e. about £5,000 per annum higher than the figure for that tax year which he (Mr Clarke) had brought out in his calculation.

[25] Second, Mr Clarke pointed out that his calculation took no account of the possibility that, had she remained in NHS employment, the pursuer would have been promoted to a higher grade (Grade G) at some time between the date of the accident and August 2006. Mr Weatherston's position at the proof and before us was that the pursuer had failed to prove a specific time when she would have been promoted and consequently, that no account whatever should be taken of that possibility.

[26] In our opinion, that is to ask the pursuer to prove something that it is impossible for her to prove as a matter of fact, as opposed to reasonable hypothesis. In a case such as this, the question for the Court is whether, on a balance of probabilities, the pursuer would have been promoted to Grade G and if so, approximately when that might have happened.

[27] In this regard, as we have noted above, the Sheriff found as a fact (Finding in Fact 14) that the pursuer would "almost certainly have advanced further by way of promotion" and said in his Note that he was convinced of this "well beyond a balance of probabilities". As already mentioned, the Sheriff's Finding in Fact was not contested before us.

[28] It is not, unfortunately, clear from the Sheriff's Findings in Fact or his Note whether he considered that the pursuer would have been promoted between January 2000 and August 2006, still less when this might have occurred. On the other hand, under the heading of "Future Loss of Earnings", he held that "it is more than likely that she would have progressed to a promoted post and that, had the accident not happened, she would have been earning £27,000 net p.a. at least".

[29] In our opinion, the evidence shows that the pursuer is a lady of above average intelligence who was devoted to her work as a nurse and had a rather wide range of career options open to her. We consider it more probable than not that she would have been promoted to Grade G at some time between January 2000 and August 2006.

[30] We take this into account together with Mr Clarke's first point as to Mr Davies' evidence that the pursuer would have been earning £24,000 in 2004-05. We take into account also the fact that the defenders provided the Court with little or no assistance, whether by way of meaningful cross-examination of the evidence led for the pursuer or by way of evidence to contradict it.

[31] In that state of the evidence, we are satisfied that, on the balance of probabilities, the shortfall of £15,000 between Mr Clarke's calculation and the Sheriff's figure for past loss would at least be equalled, if not exceeded. That is sufficient to dispose of the appeal on this point.

Future loss of earnings
[32] The Sheriff found in fact as follows:

"18. The pursuer is presently studying for a degree at Glasgow University with a view to qualifying as a primary teacher. She will finally qualify for remunerative employment as such in September 2009. She will lose earnings from now until then of £81,000.

19. Once the pursuer qualifies it will take her approximately ten years before her earnings match those she could reasonably have expected to receive in her previous career. The likely loss there is £23,750."

Again, other than the figures, neither of these Findings in Fact was challenged by Mr Weatherston.

[33] The figure of £81,000 in Finding 18 represents 3 years at £27,000, which is then subject to an agreed "early settlement discount" of 5%, bringing out the net figure awarded by the Sheriff of £76,950. The figure of £23,750 in Finding 19 rather confusingly represents a figure of £25,000 after deduction of the early settlement discount.

[34] Mr Weatherston's challenge to these figures proceeded on the basis that the pursuer had failed to prove when she would have been promoted to Grade G and that, therefore, future wage loss should be calculated on the basis that she would have remained at Grade F. For the reasons given above, we consider this to be a wrong approach.

[35] Mr Clarke produced calculations based on the Ogden Tables (6th edition) which showed that a figure considerably higher than that awarded by the Sheriff would have been well within the bounds of possibility. There is, however, no cross-appeal on this point.

[36] Assessment of future loss, where there are as many imponderables as there are here, is not an exact science. In our opinion, it is sufficient to hold that the sums awarded by the Sheriff are well within the range of any reasonable assessment. The appeal therefore fails on this point also.

Past and future services (Sections 8 and 9 of the Administration of Justice Act 1982)

[37] The Sheriff made a single Finding in Fact and a single award without distinguishing between the sums to be awarded under Sections 8 and 9 respectively:

"20. The pursuer has been unable to perform the normal domestic chores a wife and mother would normally carry out. As a result members of her family have had to render services to her and will require to do so in the future. Past and future services can reasonably be assessed at a total of £10,000."

The Sheriff attributed £5,000 to the past and £5,000 to the future.

[38] Mr Weatherston challenged this award, not only on the ground that the Sheriff had failed properly to apply Sections 8 and 9, but also on the ground that the pursuer had failed to prove who had provided what services and when. Again, there was no cross-appeal.

[39] Evidence as to the pursuer's need for assistance in many respects was led from the pursuer herself and from her husband, her aunt and Mrs Alison Beattie, an occupational therapist. Their evidence was not challenged in any significant respect in cross-examination.

[40] Mr Clarke accepted that the Sheriff should have made separate awards under Sections 8 and 9 and that in the case of the Section 8 services it was necessary to identify the individuals who had provided the services and the amount attributable to each of them. He submitted that Finding in Fact 20 should be amended by adding at the end the following words:

"[a total of £10,000] which sum can be attributed half to the past and half to the future with, in respect of the past award, £500 respectively to the pursuer's mother, Agnes Graham, and mother-in-law, Maureen Henry, and £1,000 to her husband, Richard Henry, all in terms of Section 8 of the Administration of Justice Act 1982, the remainder of the award being in respect of Section 9 of the Act."

In our opinion, when the award is so distributed, it can be seen to be very modest. We see no reason whatever to disturb it, but we will allow the appeal to the extent of amending Finding in Fact 20 as proposed by Mr Clarke and apportioning the figure allowed by the Sheriff in respect of interest for past services. These are £132.76 for Agnes Graham and Maureen Henry and £265.52 for Richard Henry, to whom the pursuer must of course account for the Section 8 award.

Additional expenditure

[41] The Sheriff awarded £3,500 in respect of additional expenditure incurred and likely to be incurred by the pursuer in respect of adaptations to a car and various household items. It appears that this figure was based, at least in part, on a report by Mrs Alison Beattie. That report was not produced before us. Mrs Beattie was examined and cross-examined on the contents of her report but the transcript does not reveal the figures to which she spoke.

[42] In his closing submissions, we understood Mr Weatherston to suggest that the appropriate figure under this head would be £3,163.84, but he offered no good reason to disturb the Sheriff's figure of £3,500.

Decision on the appeal

[43] In the result, the appeal fails on all points except as regards apportionment of the sum awarded under the head of past and future services.

Cross-appeal

[44] The pursuer marked a cross-appeal in the following terms:

The Learned Sheriff having erred in failing to award the sum agreed by the parties in the sum of £24,191 as damages for loss of pension, damages should be increased by that sum together with interest at 8% per annum from 28 June 2006 until payment.

In their written submissions to the Sheriff, the defenders stated:

"As an agreed aspect of the case, the defenders concede that in the event that the pursuer had remained a nurse at grade 'F' level but for the accident and in the event that she proceeds with her current planned career path of primary school teaching that [sic] there would be a potential loss of pension as between these two alternatives in the sum of £24,191 at the date of proof. The defenders, however, submit that in the light of the inadequacy of the pursuer's evidence about pension contributions and in the light of the appropriate approach towards quantification suggested by the defenders that [sic] the issue of pension loss does not arise."

[45] We were told that the agreement referred to by the defenders was to avoid the necessity of leading the evidence of an actuary who had produced a report and was certified as a skilled witness in the Sheriff's interlocutor of 30 November 2006.

[46] After the Sheriff issued his Interlocutor and Note of 31 August 2006, the pursuer's agents wrote to the Sheriff Clerk, asking why the award did not include the agreed figure of £24,191. The Sheriff Clerk replied by letter dated 13 September 2006 as follows:

"I refer to your letter dated 11 September in relation to the above case and confirm that this was passed to Sheriff Dunlop for his perusal. The Sheriff has made the following comments:

'While he did not mention pension loss specifically, he had not entirely overlooked it. This was agreed in a Joint Minute as to the amount only. There was an argument about whether it was a loss at all it could only be in certain circumstances, if it was then the quantum was agreed, however the Sheriff can recollect no argument was Mr Hennessy on that specific point [sic]. Mr Weatherstone touched upon it briefly pointing out the difficulty in comparing one pension with another. In the absence of compelling argument and the light of substantial award being made under other heads [sic] he did not feel able to include it'."

In so far as that letter can be treated as having any value in explaining why the Sheriff did not make an award in respect of loss of pension rights, it is both incoherent and illogical. In these circumstances, it is for us to determine de novo whether an award of the agreed amount should be made under this head.

[47] The defenders' grounds set out in their written submissions for contending that no award should be made under this head were (a) "the inadequacy of the pursuer's evidence about pension contributions" and (b) "the appropriate approach to quantification suggested by the defenders".

[48] The pursuer was cross-examined as to an "anomaly" in her evidence about pension contributions. In so far as we are able to understand the purport of the questions put to her, the alleged anomaly appears to consist in the fact that the pursuer had, at an earlier time, stopped making pension contributions but had resumed doing so when she was employed at Canniesburn in October 1999.

[49] In our opinion, the pursuer's evidence on this matter was neither anomalous nor inadequate. It is not in dispute that, as at the date of the accident, she was making pension contributions. No reason was put to her as to why she might have ceased to do so at some time in the future.

[50] The defenders have failed comprehensively in their approach to quantification, both before the Sheriff and before us.

[51] In these circumstances, we find no reason to deny the pursuer an award of the agreed sum for pension loss. We will therefore allow the cross-appeal, make an appropriate Finding in Fact and award the additional sum of £24,191.

Disposal

[52] We will therefore dismiss the appeal subject to amendment of Finding in Fact 20 and allow the cross-appeal with the addition of a further Finding in Fact 21. These Findings will therefore to read as follows:

"20. The Pursuer has been unable to perform the normal domestic chores a wife and mother would normally carry out. As a result members of her family have had to render services to her and will require to do so in the future. Past and future services can reasonably be assessed at a total of £10,000, which sum can be attributed half to the past and half to the future with, in respect of the past award, £632.76 (inclusive of interest) to each of the pursuer's mother, Agnes Graham, and mother-in-law, Maureen Henry, and £1,265.52 (inclusive of interest) to her husband, Richard Henry, all in terms of Section 8 of the Administration of Justice Act 1982, the remainder of the award being in respect of Section 9 of the Act.

"21. The pursuer has lost pension rights valued at £24,191."

[53] Since the adjustments to the services awards do not affect the defenders' ultimate liability under those heads, effect can be given to our decision by increasing the principal sum allowed by the Sheriff by the amount of the agreed pension loss figure, producing a total of £339,497.45, with interest from the date of his interlocutor.