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FRANK WILLIAM FLETCHER as guardian of LISA SMART v. CHRISTOPHER LUNAN


OUTER HOUSE, COURT OF SESSION

[2008] CSOH 55

PD187/07

OPINION OF LORD CARLOWAY

in the cause

FRANK WILLIAM FLETCHER as Guardian of LISA SMART

Pursuer;

against

CHRISTOPHER LUNAN

Defender:

­­­­­­­­­­­­­­­­­________________

Pursuer : Mackay QC, RG Milligan; Bonnar & Co,

Defender : Stephenson; The Anderson Partnership

20 March 2008

(a) General

[1] On 27 October 2002 at about 1 am, Lisa Smart, then aged twenty one, was walking with a friend along Main Street, Saline. They had been at a social function at the local golf club. They had reached a point on the road with no pavement on the side along which they were walking. As they continued, they were both hit by a car driven by the defender, who was well over the legal limit for alcohol when driving. The defender was convicted of a contravention of section 2 of the Road Traffic Act 1998 (dangerous driving) and sentenced to two years imprisonment. Miss Smart suffered a serious head injury.

[2] In May 2007, on the pursuer's motion, a four day proof restricted to liability was allowed. This was fixed for 15 January 2008. However, not long before it was due to commence, the defender admitted liability and the parties agreed that the degree of contributory negligence would be assessed at fifteen per cent. An eight day proof on quantum was then requested and this has been allocated in March 2009. The defender has made two interim payments to the pursuer, one of £150,000 and one of £100,000. The pursuer now seeks interim damages of an additional £500,000.

[3] The terms of the Rule of Court (43.11) are familiar. They permit the court to ordain a defender to make an interim payment of:

"such amount as it thinks fit, not exceeding a reasonable proportion of the damages which...are likely to be recovered by the pursuer".

The court must accordingly determine the amount of damages which are "likely to be recovered" before it can order the payment of the "reasonable proportion". Although this exercise will, in part, involve the court estimating what it might award after a proof, the rule instructs a broader approach. The proportion is to be of the amount which the pursuer is "likely to recover". Most (but certainly not all) cases, especially those involving catastrophic injuries such as the present one where liability is not in dispute, settle in advance (or on the day) of the diet of proof. That settlement will, for a variety of reasons, be for less (sometimes substantially less) than a pursuer's often optimistic valuation but more (sometimes substantially more) than a defender's parsimonious assessment. Settlements tend not to depend upon precise arithmetical calculation but on broad estimates of the strengths and weaknesses of each side's figures. The court ought to take a similar broad axe with a blunt blade approach to its estimate of likely damages recovery, before fixing the "reasonable proportion" on a relatively conservative basis (see my remarks in D's Parent & Guardian v Argyll and Clyde Hospitals 2003 SLT 511 para [5]; Lord Hodge in Lennox v Bishop 2005 SCLR 1107 at paras [13-14]; and Lady Dorrian in Taylor v Sands [2006] CSOH 186).

(b) Miss Smart's Condition and Care

[4] In support of the application, the pursuer presented a schedule of damages totalling over six million pounds. The defender countered with one amounting to less than £450,000. It is not in dispute that Miss Smart is presently resident in the Bandrum Nursing Home, Saline. She is functionally tetraplegic, with movement only in her fingers and the toes of one foot. She is conscious and communicates mainly by using a hand held buzzer. She has a tracheostomy in situ and is fed through a tube. There are two major areas of dispute. The first is the level of Miss Smart's cognitive function, notably her ability to express a desire on where she is to live. The second is her life expectancy.

[5] The pursuer referred to a report (6/2 of process) from Dr Alan Carson, consultant in neuropsychiatry, who examined Miss Smart on 23 December 2006. This states (p 14):

"I would consider it as absolutely inevitable given the severity of her initial injuries that a significant and highly limiting degree of cognitive impairment will be present, and this will be the major rate limiting step on her future function. This will now have reached a static level and will not improve further...[E]even allowing for more sophisticated communication techniques, I do not believe that she has the capacity to make all but the most basic of choices".

Dr Carson notes that, nevertheless, one choice that she has made is to be cared for at home. He continues:

"There is nothing about her current care needs that could not be done on a home basis, and I cannot detect any medical reason to contradict home management. In particular, her current placement is a nursing home without direct medical cover, and indeed for any medical emergencies it would be the same general practitioner who would deal with both. It is, however, clear that she would need input from qualified nursing staff on a 24 hour basis if homecare were to be attempted".

Having examined various other aspects of Miss Smart's situation, Dr Carson concludes (p 16):

"Thus, although there will be a number of practical considerations which will need to be overcome, I would in this case enthusiastically endorse the idea of home care, and I felt that her parents had made mature and sensible decisions in this regard".

[6] The pursuer also founded upon a report (6/24) from Michael Barnes, Professor of Neurological Rehabilitation, who saw Miss Smart on 30 August 2007, and writes (p 8):

"...it is very likely...that she will have significant impairment of cognitive and intellectual functioning. However, it is equally clear that she has a significant level of awareness of her immediate environment and can interact at a reasonable, but simple, level with her environment and with her family and carers".

Dr Carson refers to Miss Smart having a "slightly reduced life expectancy" (p 17) but Professor Barnes concludes (p 14) that her life expectancy is reduced by around 50%, that is to say from 61 years to 30.5 years (per the Ogden Tables), on the basis that she continues to have high quality care, therapy and appropriate equipment.

[7] The defender relied upon a report (7/5) from Dr WJK Cumming, consultant neurologist, who saw Miss Smart on 28 July 2004 and 12 April 2006. Dr Cumming did not consider that she was understanding speech, processing information or replying appropriately to questions (paras 9.11-12). He gained the impression that her cognitive function was lower than those around her might think. Although he accepted that an independent (home) care regime might be set up for her (para 9.70), he considered that to be extremely difficult in practical terms. He regarded her present environment in the nursing home as "safest" and the "best" facility for her needs (paras 9.71-79). Dr Cumming originally gave her life expectancy at between four and seven years (para 9.83), assuming a satisfactory continuing care program. However, having reviewed certain medical records dealing with a chest infection suffered by Miss Smart, he reduced this to between three and five years in December 2006 (7/6).

[8] There is then a wide discrepancy in the assessment of life expectancy. The defender suggested that it must now be less than two years, but that is perhaps to misinterpret the exercise, presumably partly statistically based, which requires to be carried out from a given date. For present purposes, having regard to the terms of the medical reports, it appears that Dr Carson is being very optimistic given Miss Smart's condition. Perhaps, without wishing to seem callous, Professor Barnes may too be erring on that side. However, Miss Smart survived her chest infection and measures are in place to ensure that it will not readily recur. Dr Cumming's more recent assessment does seem excessively gloomy in that light. It is appropriate to take a figure well below the pursuer's experts' estimates but one in line with the higher end of the defender's expert's original figure; that is to say seven years.

[9] In relation to Miss Smart's cognitive functioning, I will also proceed upon a relatively pessimistic view. Nevertheless, she has been able to express a preference to be cared for at home. The pursuer has expert advice that she can be cared for at home. Whether the defender has to pay for that care depends upon the application of common law principles of damages. The pursuer is entitled to such damages as will put Miss Smart into the same position, or as near to it as practically possible, as if she had not been injured. If a pursuer proposes a particular care regime, which seeks to achieve that result, then the defender will have to pay for it in damages unless that regime is unreasonable. In that regard, the pursuer is under no obligation to mitigate loss by keeping Miss Smart in a nursing home just because it is funded by central or local government and is regarded as adequate for her needs. If it is reasonable to have her cared for in her own home, where she would have been but for the accident, then the cost of that will be a legitimate head of damage even if it involves additional or exclusive private cost. However, if all that is required to put Miss Smart into that same pre accident position is already, or may be, provided for from a publicly funded source, it may be unreasonable to instruct a more expensive and unnecessary private scheme. Equally, if a pursuer can secure public funding, in whole or in part, for her care, he might reasonably be expected to apply for it so as to reduce his expenditure. But it is not for the Court to decide what is "best" for Miss Smart or to stipulate an acceptable minimum level of care. It is for the pursuer to put forward a regime and the defender will require to fund that, unless that regime is an unreasonable or impractical one. Quantum valeat, that appears to have been the conclusion reached by the English Court of Appeal in Sowden v Lodge [2005] 1 WLR 2129 (see also Crofton v NHS Litigation Authority [2007] 1WLR 923), to which both parties made reference (see eg Pill LJ at paras [10]-[14], [38]-[41]; cf medical expenses in terms of Law Reform (Personal Injuries) Act 1948 (c 41) section 2(4)).

[10] There is no material at present upon which it could be concluded that attempting to achieve home care is an unreasonable course for the pursuer to adopt. It may ultimately fail, but there can be little criticism of the pursuer for trying to achieve such a regime in the near future (if funds are in place). There also is a great deal to be said for attempting this in advance of any proof date, so that the court can be in a far better position to assess its ultimate reasonableness and practicability at that time.

(c) Solatium

[11] The pursuer suggested that solatium was reasonably estimated at £230,000, with half attributable to the past and on which annual interest at 4% would run. He referred to the English Judicial Studies Board Guidelines for "Very Severe Brain Damage" which gave a range of £165,500 to £235,000. The defender, founding on the same Guidelines ("Moderately Severe Brain Injury"), proposed £150,000 because of the reduced life expectancy. The defender's original statement of valuation proposed £180,000 as solatium, with £80,000 of that attributable to the future. That is a reasonable estimate for present purposes and produces just over £200,000, once interest is added.

(d) Loss of Earnings

[12] At the time of the accident, Miss Smart was earning about £250 net week as a bank clerk. There was no substantial dispute that lost earnings to date, inclusive of interest, are about £85,000. So far as the future is concerned, the defender suggested a multiplicand of £14,500 on the assumption that there must have been some increase in wages paid by the Bank of Scotland over the last five years. Miss Smart is now aged 27. There was a dispute about exactly what initial multiplier should be used. The pursuer proposed 24.28, which applies to a 27 year old using Ogden Table 10 (Multipliers for loss of earnings to pension age 65 (females)). The defender proposed 21.40 which, presumably in error, is for a 29 year old using Table 8 (pension age 60). For present purposes 22.32 (Table 8 for a 27 year old) will be taken as a starting point. Both parties accepted that there would have to be some small reduction (Table C) to take into account illness and unemployment. It will be sufficient in these circumstances to take a multiplier of 20. On that basis, loss of future earnings would normally be £290,000.

[13] However, the defender submitted that, first, account ought to be taken of the likelihood that the pursuer would take a "career break" in order to have a family. Secondly, he submitted that, in terms of section 9 of the Damages (Scotland) Act 1976 (c 13), the Court had to deduct the proportion of earnings which the pursuer would have used in living expenses for the period after her predicted early date of death.

[14] Since I am already making a broad estimate of the pursuer's life expectancy and setting it at a conservative figure, I will take that figure (seven) for loss of earnings while in life, rather than attempt to apply any further discount to it (as may be required after proof). This produces an initial £101,500. In the absence of any statistical information, there will be no deduction for a "career break". Miss Smart was in a relatively stable occupation with a major corporate employer and there is no basis for assuming that she would require or desire to leave her employment were she to have a family.

[15] For the years from her predicted date of death to her otherwise retirement age of, say, sixty, her notional earnings require, in terms of section 9, to be discounted by the amount of her likely personal living expenses. It is difficult to make an assessment of this where a young employed woman is concerned. No doubt, when single, even when living with her parents, perhaps two thirds of her earnings might go on her own living expenses. This level would be likely to drop with marriage and even further with the arrival of children. Taking a very conservative approach, and assuming that sixty per cent were to be spent on her own living expenses, there would be £5,800 per annum left subject to the balance of the multiplier (ie thirteen years) to produce £75,400. Total loss of earnings recoverable will therefore be around £261,900.

(e) Services

[16] The pursuer produced a report (6/25) from Maggie Sargent RGN relative to the care regime for Miss Smart. This outlined Miss Smart's history to date. She was initially taken to Queen Margaret Hospital, Dunfermline, and from there to the Western General Infirmary, Edinburgh, for three weeks. She returned to hospital in Dunfermline for a year before being in long term care in Glenrothes. She moved to her present residence at the Barnum Nursery Home in December 2005. Miss Smart's parents have now sold their own house and have bought a two storey dwelling intended to be suitable, at ground floor level, for Miss Smart. This house was purchased for £310,000, being funded in part from the first interim damages payment of £150,000.

[17] After the accident, Mrs Smart (now aged 57) took a year off her work with the Bank of Scotland in order to look after her daughter. Mr Smart (61) did the same from his employment as a senior community health officer. He has now retired, although he had not planned to do that before the accident. Ms Sargent has produced schedules of the value of services to date using 70 hours for the initial days in hospital and 21 hours per week (three hours per day) thereafter, the latter figure being the actual time Mr and Mrs Smart spent and now spend with their daughter. This could produce just under £50,000 (and more than that if interest is added), based on hourly rates ranging from £7.49 at first to £8.43 at present. However, the pursuer originally sought a round figure of £5,000 per annum in his valuation for services to date together with £14,000 in travelling expenses. This is, for present purposes, not unreasonable and produces about £40,000, inclusive of interest. If it were continued into the future for the next seven years, as again is not unreasonable, it would have a value of in excess of £35,000.

(f) Care

[18] At present, Miss Smart's care needs are met in the nursery home, which is a locally authority funded eight bed unit for young disabled people. She requires two carers for all transfers and when re-positioned in her wheel chair every three to four hours. She is turned every two hours at night. She is bathed every other day. She is fed every three hours. She receives very little therapy at present other than passive exercises and chest physiotherapy from members of her family. All of her care is funded by Fife Council. If she were to be cared for at home, this would not be the case.

[19] Ms Sargent assesses her needs as involving two carers for 14 hours each per day (including a team leader), plus one "waking night" and one "sleep in" carer. Once other contingencies are catered for, including a case manager at £10-12,000 per annum, the annual cost is estimated as approaching £250,000. However, it is simply not known at this stage just what the net cost of the care regime might be (i.e. the part not publicly funded). Ms Sargent records that the local Health Board and Social Services will fund one 24 hour carer, but just exactly what else will be needed, how it might interlink with the services claim, and at what cost, is uncertain on the present material. For present purposes, I will proceed only on the basis that case management and guardianship will be needed for the next seven years at a total cost of at least £15,000 per annum (i.e. £105,000). The cost of future care will require greater specification and costing in due course. It may form the basis for a further motion for interim damages.

(g) Accommodation and Equipment

[20] There are, of course, many other potential expenses which may require to be taken into account. The pursuer has mentioned some of these specifically. First there is £50,000 for the adaptation of accommodation. This does not seem too unreasonable. Then there is the adaptation of a vehicle at £33,503. There is also a specially designed computer system to be bought at a cost of £32,000. There will be recurring elements to these but, again for present purposes, taking a round figure of £100,000 under this head seems relatively modest.

(h) Conclusion

[21] On the above assessment, damages on the basis of full liability will comfortably exceed £750,000. Once the 15 per cent is deducted, there will be a minimum of £637,500. In this case, a reasonable proportion of that would be £478,125 (three quarters), of which the pursuer has had £250,000, leaving a balance for present purposes of just under £230,000. I will grant the motion for interim damages in that sum.