[2006] CSOH 186



in the cause








Pursuer: Maguire Q.C. et Henderson; Digby Brown

Defenders: R Milligan; DLA Piper Scotland LLP (Party Minuters)

5 December 2006

[1] This case came before me on a motion by the pursuer as guardian of her daughter Clare who was seriously injured in a road traffic accident on 4 February 2002. Liability is admitted. The motion was for interim damages of £250,000. A previous voluntary payment of £250,000 was made by the defenders on 11 May 2004.

[2] In the accident Clare sustained a severe acquired brain injury with diffuse anoxal damage and frontal contusions. As a result there is said to be major impairment to her cognitive functioning. Her communication is severely impaired, she suffers from global and profound acquired dementia and profound retroamnesia. It is unlikely there will be any significant improvement. She is unable to return to any form of gainful employment.

[3] Clare currently lives in a property in East Lothian purchased by her prior to the accident, where she has a 24-hour care package, organised and managed by the pursuer. With the voluntary payment, the pursuer was able to purchase a nearby property in which she resides. It is averred that Clare attends weekly art therapy and physiotherapy and fortnightly reflexology sessions at a total cost of £64 per week. East Lothian Council currently fund a community care package and day services for Clare. The pursuer avers that the cost of these has recently increased, but payments from the Council have remained static and there is therefore a shortfall in what requires to be paid. The amount of that shortfall is not averred but at the bar counsel stated that it amounts to £800 per month. This shortfall and the weekly payments are met by the pursuer. It is averred that Clare will need 24-hour care for the rest of her life, that the current regime meets only her basic care needs, and that it will be necessary to employ a care manager.

[4] The situation in this case is complicated by the fact that Clare was previously involved in a road traffic accident on 26 July 2000 in which she sustained what the pursuer avers was a moderate brain injury, causing her to suffer minor cognitive difficulties. She avers that at the time of the present action, Clare was still in the recuperative phase of her earlier injury. At the time of the earlier accident, she was setting up a recruitment consultancy business.

[5] A further complicating factor is that in response to averments from the defender, the pursuer admits that in 1999 and 2000 Clare suffered from work related stress, which prevented her from working, having suffered panic attacks and agoraphobia in 1997.

[6] The pursuer's position is that but for the present accident, it is likely that she would have recovered from her earlier head injury, would have been independent for all activities of daily living and enjoying a relatively normal social life. All her current disabilities are attributed to the injuries sustained.

[7] The defenders aver that the earlier head injury was a severe one and that as a result of her previous physical and psychological history, her employment prospects were limited. They further aver that a care regime in her own home is inappropriate and that the most reasonable and appropriate option for her is residential accommodation. They aver that by statutory provision the local authority is required to provide such residential accommodation, and that, as a result of other legislative provisions, any damages payable will be placed in trust to prevent recoupment of the costs of such residential accommodation. The defenders therefore advance an argument that the claim for future residential accommodation is irrelevant.

[8] In advancing the motion, counsel for the pursuer indicated that there was no dispute over the general approach to be taken to a motion under Rule of Court 43.9. That rule gave the Court a wide discretion. The approach should be conservative and moderate but was not restricted to loss to date. It was not necessary for a pursuer to establish hardship although that can be taken into account. The damages to be awarded were those not exceeding a reasonable proportion of the likely award, a sum which in previous cases has varied between fifty and seventy per cent.

[9] Miss McGuire referred to the medical reports from Professor Whittle (6/4) and Dr Carson (6/5) for vouching of (i) the severity of Clare's condition; (ii) the need for 24-hour care; and (iii) the claim that the current level of disability results from the accident on 4 February 2002 and not the previous one. She referred to Dr Carson's comments that, given the severity of the injury caused on 4 February 2002, her previous history, the previous accident and its effect on her employment prospects were irrelevant. He states that

"previous acquired brain injuries do worsen the cognitive outcome of future acquired brain injury, but, given the nature and extent of her coma in the second accident, this is irrelevant and all her current disability is wholly attributable to the second accident".

[10] Miss McGuire then referred to a schedule of damages for the pursuer which brought out the sum of £4,107,664. She recognised that a substantial element of this was for future care, but submitted that, even if the claim might be said only to be worth a million pounds, the sum sought, even taking into account the voluntary payment, remained a reasonable proportion of the damages likely to be awarded.

[11] In opposing the motion, Mr Milligan submitted that the motion was premature as the Record does not close for nearly 2 months and parties are still adjusting. Dr Carson's reference to the irrelevance of the previous accident may be appropriate for treatment purposes, but for the purposes of litigation, the question was whether she would have been prejudiced by the previous accident, to which the answer is clearly yes.

[12] In addition, Mr Milligan pointed out that the defenders' argument is that Clare should be in residential care and they have set out what he described as a complicated legal argument to the effect that the local authority would be required to provide suitable and adequate residential accommodation for Clare, in which case the cost would not be met by the defenders. Reference was made to Crookdale v Drury [2004] EWCA 1370 at paragraph 41.

[13] In relation to the schedule of damages he submitted that it was not on any view a moderate approach. From the assessment of solatium at £200,000 onwards, the pleadings in respect of wage loss are sketchy and would at best, given her history, justify a lump sum. He submitted that the future care figures were difficult to understand but in any event, on the defenders' argument all future care elements including case management and so on, would be removed from the equation. There is no basis in the pleadings for the claim of £151,268 for "social activities". He pointed out that all elements of future care were based on a full life expectancy, whereas the defenders averred that life expectancy had been reduced by about 9 years. He submitted that it was not possible at this stage to say that the pursuer would be awarded more than £500,000, in which case the sum paid already represents a reasonable proportion.

[14] It is clear that there are major areas of dispute between the parties in relation to quantum. The whole issue of her employment prospects is complicated by her history of being unable to work for 2 years for psychiatric reasons, and by the effect of the previous accident. The effects of that accident may impinge on other aspects of the claim also. Although Professor Whittle indicated that life expectancy was not foreshortened, Dr Carson lent support for the defenders' contention by noting that available evidence suggests a reduction by about 10 years. Moreover the nature of the appropriate care for Clare, and the funding of it, is a very significant area of dispute capable of having an enormous impact on her claim. On the schedule for the pursuer, the sums representing solatium, past wage loss, past care and past therapies amounts to a total of £263,892. The sum included for future care is £2,397,218 with an additional £332,789 being included for day services and £648,968 in respect of case management. These sums alone amount to £3,378,975. Also capable of being affected by the defenders' argument in respect of the appropriate form of care are the figures for future therapies, additional lighting, transport and home maintenance costs and so on. These amount to an additional £349,063. The total sum capable of being affected by the defenders' primary argument is therefore £3,728,038. Past wage loss and future wage loss, both items significantly in dispute, are estimated at the sums of £45,147 and £164,800 respectively.

[15] Taking account of the nature and extent of the dispute on all these matters I do not think it can be said, as submitted for the pursuer, that on any view the claim was bound to be worth even a million pounds. If the defenders were successful in their arguments the claim might well be worth no more than £600,000 or £700,000. In those circumstances, the sum sought by way of interim damages would represent an excessive proportion of the award. I do, however, consider that a small additional sum is justified and I propose to make an award of interim damages of £50,000.

[16] For the sake of completeness, I record that in addition to the items mentioned, counsel referred to Lennox v Bishop [2005] SCLR 1107; D's Parent and Guardian v Argyll and Clyde Acute Hospitals NHS Trust [2003] SLT 511; Nisbet v Marley Roof Tiles Co Ltd [1988] SC 29; McNicol v Buko Ltd [1986] SLT 12; The Judicial Studies Board Guidelines and Productions 6/16, 6/17, 6/20 and 6/21.