DAVID PAGAN (AP) v. THE MILLER GROUP LTD
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD CARLOWAY in the cause DAVID PAGAN (AP) Pursuer; against THE MILLER GROUP LIMITED Defenders: ________________ |
Pursuer: K. Campbell; Thompsons
Defenders: Stacey Q.C.; Simpson & Marwick W.S.
8 November 2001
[1]The pursuer was aged 37 at the date of the proof, married with two young children. His wife worked part time as a dental nurse. The pursuer was injured in an accident at his work on 2nd December 1997 when he became engulfed in fire whilst driving an 85 ton dump truck. He described the accident as like being in the middle of an orange and had to leap over twenty feet from his cab. He suffered burns to his face and hands. Throughout his working life the pursuer had a solid, uninterrupted work record, mainly in outdoor manual labour. At the time of his accident he had been earning almost £350 net per week and had regarded work and supporting his family as a very important part of his life. However, he had been unable to return to any form of employment as at the date of the proof. By that date, most of his psychological sequelae had moderated but he was still not fit for work because of his physical state. Nevertheless, it was thought that he would become fit for some work in the future, albeit at much smaller wages, and much of the argument at the proof, had it proceeded to a conclusion, would doubtless have been the future wage loss element.
[2]The action was raised towards the end of 2000. At least by the time the record closed on 7th February 2001, liability had been admitted. A four day proof on quantum was set down for Tuesday 6th November 2001. On Thursday 1st November, the defenders tendered £250,000. This was the first tender in the case. It was not accepted. The case called for proof at around 11 a.m. on the Tuesday. At about 2.30 p.m. on the Tuesday, the pursuer ran out of witnesses, his own and his wife's evidence having been completed. The defenders then tendered £275,000. The proof proceeded on Wednesday with the evidence of doctors and an employment expert. The evidence that day concluded about 4 p.m. Thereafter, the pursuer decided to accept the revised tender. Counsel for the pursuer contacted counsel for the defenders that evening and arrangements were put in hand to cancel the pursuer's witnesses scheduled for the next day (Thursday). When the proof called on the Thursday morning, I was advised that the pursuer had lodged a Minute of Acceptance and counsel for the pursuer moved me for decree in terms of the Minute of Tender and Acceptance together with expenses to the date of the tender.
[3]Counsel for the defenders did not oppose that motion but moved for expenses from the date of the tender (i.e. the date when it ought to have been accepted). Counsel for the pursuer did not oppose that. Where there was a dispute was in relation to when the pursuer ought reasonably to have accepted the tender. Both counsel were agreed that it was best for me to decide this rather than await a determination by the auditor (see the course taken by Lord Ross in Morton v O'Donnell 1979 SLT (notes) 26). The defenders argued that the pursuer should have had a good notion of the value of his claim and a potential settlement figure at least by the time the proof called. He ought therefore to have been in a position to accept the tender on Tuesday afternoon when both he and his counsel were free to discuss it. Counsel for the defenders submitted that where a trial or proof was imminent, the Court had always regarded the consideration of and decision upon a tender by a pursuer to be one of urgency (Morton v O'Donnell (supra), Lord Ross at 27 under reference to Wood v Miller 1960 SC 86)). Counsel for the pursuer maintained that in all the circumstances, it was reasonable for the tender to have been accepted when it was.
[4]Each case must of course depend on its own facts. Here, for example, there was no problem about arranging an immediate consultation since everyone was in Parliament House when the revised tender was made and no doubt everyone would be returning the next morning. However, the case involved sums of money the amount of which would be likely to govern the quality of life of the pursuer and his family for years to come. Whether or not to accept the tender or to fight on in the hope of gaining more, with the potential consequence of losing at least a portion of the expenses, was a decision of considerable importance and gravity for the pursuer to take. Indeed, it may have been one of the most important he had ever been required to take. In such circumstances, not only does time have to be allowed for consulting with counsel but also to reflect on the offer and the consequences of acceptance and rejection. It is not, I think, reasonable for a pursuer whose future depends to such an extent on the amount of damages he secures to be forced into making an instant decision at a consultation. This is particularly so where the first formal offer in the case has only occurred a few days previously. As the Lord Justice Clerk said in Wood v Miller 1960 SC 86 (at 98) :
"Defenders who delay making tenders until a late date do not deserve much sympathy, and are not to be allowed to hustle pursuers into what may be hurried and hasty decisions."
I think here that the pursuer was entitled to consider the matter overnight and to delay making a final decision until after Court on the following day. Since the first opportunity to lodge the Minute of Acceptance was the following morning, I hold that that was the time at which it was reasonable for the tender to be accepted.