RUTH HEATHER WALLACE v. KEVIN MICHAEL PATERSON
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LADY PATON in the cause RUTH HEATHER WALLACE Pursuer; against KEVIN MICHAEL PATERSON Defender: ________________ |
Pursuer: MacAulay, Q.C., A.R.W. Young; Balfour & Manson
Defender: Smith Q.C.; Hennessy Bowie & Co. Glasgow
4 January 2001
Introduction
[1]The pursuer was born on 4 June 1976. In October 1996 she was a 20-year-old second year student at Northumbria University, Newcastle. On Friday 11 October 1996, she was a front seat passenger in a car being driven north on the A68 by her boyfriend, Kevin Paterson. She was seriously injured when he took a bend too fast and the car left the road near Hexham. She now seeks damages. Liability is admitted, and the sole issue is quantum of damages.
[2]At a proof before answer, the pursuer gave evidence. The following witnesses were led on her behalf: Mr. and Mrs. Wallace (51 and 50); a flat-mate/companion Jacqueline Anderson (23); the pursuer's younger sister, Gill Wallace (21), a third year student of Management Studies at Aberdeen University; the pursuer's current employer Angus Tod (50), Chairman of Greig Middleton, stockbrokers in Edinburgh; Mrs. Eileen Davis (50), deputy head of the pursuer's former school St. George's, Edinburgh; Dr. Brian Pentland (51), Consultant Neurologist; David Johnson (47), Consultant Neuropsychologist; Professor John Newall (55) of Northumbria University; Paul Melia (32), co-owner and trainer in a sports and fitness centre; Jane Kunkler (44), clinical psychologist; Reginald Talbott (64), Joint Director of Personal Medical Claims Service; and Keith Carter (51), employment consultant. A Joint Minute number 6/1 of process completed the pursuer's case. No evidence was led on behalf of the defender.
The pursuer's life prior to the accident
[3]The pursuer's family home is in Seton Mains, Longniddry. Her mother is a receptionist in Greig Middleton, stockbrokers, Edinburgh. Her father is the managing director of a paper-mill near Penicuik.
[4]Before her accident, the pursuer was apparently a cheerful, attractive girl with many friends. She enjoyed sport, including hockey, tennis, skiing, and lacrosse. She was a pupil at St. George's School, Edinburgh. She did not enjoy school initially, and experienced some difficulty with school-work. She appeared to suffer from dyslexia and had to repeat a year. But, as her mother said, "When she had to work, she worked", and as a result of applying herself, she managed to obtain Highers, namely one B, four Cs, and one D. She was offered a place at Northumbria University, Newcastle, in a B.Sc. Urban Property Surveying course. After one year, the pursuer had to re-sit two examinations. She passed one, but was unable to pass Valuation of Property. For her second year at University she had to transfer to a parallel course, the Housing Development degree course, which involved less maths.
[5]Mrs. Davis, the deputy head at St. George's school, described the pursuer as popular and keen on sport. She had been a late developer, and her self-confidence and self-esteem had improved during her last few years at school. Mrs. Davis agreed that the pursuer was not a "high-flyer", but was nevertheless confident that she would have obtained a degree from Northumbria University, and would have done well. Mrs. Davis described the pursuer as "a worker".
[6]Professor Newall thought that the pursuer would have been likely to achieve a lower second class honours degree, and to have obtained employment in the housing industry, perhaps with a property development company.
[7]In relation to general independence, social and recreational activities, and ability to deal with life generally, it was established that the pursuer had been living away from home. She had friends, an active social life, and a boyfriend, namely the defender in this case. She participated in many social and extra-curricular activities, such as typing for a student newspaper. She continued to enjoy sport. She was in short a well-balanced young woman with everything to look forward to.
[8]On the day of the accident, the pursuer had been invited to dinner at her parents' home at 4 The Paddock, Seton Mains, by Longniddry. Her boyfriend was driving her north on the A68 when the accident occurred. The pursuer's mother, noting that the pursuer was late, telephoned the pursuer's mobile phone. A policeman who was attending the scene of the accident answered. Mr. and Mrs. Wallace immediately drove to join their daughter.
The pursuer's head injury and period in hospital
[9]The pursuer suffered a severe head injury, a fractured left clavicle, abrasions and a disruption of the sacro-iliac joint. The head injury comprised a fractured skull, diffuse brain damage, intraventricular haemorrhage, and damage to her hearing.
[10]The pursuer was taken by helicopter to Newcastle General Hospital. She was in a coma, registering seven on the Glasgow Coma Scale. She required intensive care, including artificial ventilation and monitoring of intracranial pressure. Her recovery was complicated by a chest infection. For the twenty days during which the pursuer remained in Newcastle General Hospital, her parents provided necessary services. They visited her daily. In particular, Mrs. Wallace took time off work, stayed in Newcastle, and kept a constant vigil from 7.30 a.m. until 8 p.m. each day. Mr. Wallace had to return to work in Scotland, but he came to the hospital two nights a week, and at weekends. The pursuer remained on a ventilator, unconscious and speechless, for about five days. When she came out of her coma, she did not recognise anyone or remember what had happened. Her parents had to re-introduce themselves, and try to help her understand what had happened. They also helped her to remain in bed attached to her catheters, as she had a tendency to keep moving restlessly and fall out of bed, disconnecting her tubes. They helped her to recognise people, readjust, and communicate. They gave her love, attention and support. Mr. and Mrs. Wallace incurred travelling and other expenses during this period, all as detailed in a document number 6/23 of process.
[11]On 30 October 1996, the pursuer was transferred to the Astley Ainslie Hospital, Edinburgh. At that stage, she was confused, agitated and restless. She did not obey commands. She spoke in incomprehensible whispers. She was bed- or chair- bound and was entirely dependent on others. She required a urinary catheter. The hospital records number 6/29 of process, at p.10, summarised her condition as follows:
" ... the main problems were agitation, confusion, inability to obey commands, no verbal communication, deafness, inco-ordination, pain over left clavicle, and need for constant supervision because of risk of falling out of bed. She also had primitive reflexes ..."
[12]The pursuer began to make some progress. She began to speak, and to co-operate with therapy. She graduated from a chair to a wheeled walking aid. She began to be able to feed herself to some extent, with help and supervision. She became able to attend to personal hygiene and to dress herself, although she needed supervision when bathing and carrying out certain other activities. Post-traumatic amnesia was estimated at about 11/2 months. She expressed suicidal thoughts and was treated for depression. In this context, one consequence of the accident was that she found that she was no longer able to cry, which increased her misery and frustration.
[13]The pursuer's parents continued to provide services. In particular, Mrs. Wallace visited the pursuer each day, from about 1 p.m. until 6 p.m. She fed the pursuer, gave her drinks, and helped with other aspects of her general care. She described the pursuer at this stage as being like a 5-year-old. Mr. Wallace visited in the evenings. He helped the pursuer to eat her evening meal, and supervised her going to bed. Both Mr. and Mrs. Wallace tried to encourage the pursuer to watch TV, play games, and read (for example, hospital notices), but progress was slow. They took her home to Seton Mains for weekends and during the Christmas period. When they took her out, they used a wheel chair, as the pursuer was still walking with a walking aid, and could not attempt any distance.
[14]Despite making progress in the Astley Ainslie, the pursuer was left with severe deficits affecting her functioning in every area of life. Dr. Pentland, Consultant Neurologist, in a report dated 9 April 1997 number 6/2 of process, summarised his views as follows:
"Miss Wallace has suffered a severe diffuse brain injury by all the conventional criteria of depth and duration of coma and duration of post-traumatic amnesia. Although she has made a remarkable degree of recovery she has persisting physical disabilities such as deafness, ataxia or co-ordination difficulties and weakness of the left upper limb. In addition, again despite considerable progress, there were very significant cognitive impairments at the time of discharge.
... it is too early to make any realistic prognosis of her eventual outcome but I believe she will have persisting physical and psychological impairments in the long term. There is a risk of post-traumatic epilepsy of the order of 5% compared to about 1% in the general population. One would estimate her life expectancy to be normal or near-normal.
She is fortunate in having sensible and supportive parents and needs [their] supervision of affairs. It appears unlikely that she will be capable of resuming her university studies in housing management and psychology review is planned. There are clearly considerable vocational and social implications and attempts are in progress to direct her to appropriate resources for assistance ..."
[15]The Astley Ainslie discharge summary number 6/29 of process at p.9 listed the pursuer's "active problems" as "impaired mobility - walking with Delta frame; dysarthria [confusion with words]; cognitive impairment [explained in evidence as including memory difficulties, inability to concentrate, and impaired social inter-reaction]; poor writing". At p.10 there is also a perceptive comment that "her parents are sensible and supportive, but one suspects some problems may arise as [the pursuer] becomes more self-assertive."
[16]The pursuer's deafness, unsteadiness, and difficulties with co-ordination resulted in a referral to Dr. A. I. G. Kerr, Consultant Otolaryngologist, who gave an opinion number 6/38 of process that the pursuer had:
"sustained a bilateral hearing loss following a road traffic accident. This has resulted in a mild middle frequency hearing loss in her left ear and a moderate to moderately severe mixed hearing loss on the right side. She has been left with a disability of her hearing. She has difficulty in localising where sounds are coming from and this is likely to persist. In view of the fact that she had no hearing problems or ear problems prior to the accident, I think the road traffic accident has caused this girl's hearing disability and it is very unlikely to improve.
I also think it very likely that she has suffered vestibular damage and this is contributing towards her imbalance. This is unlikely to improve at this stage."
The pursuer's discharge from hospital and continuing rehabilitation: Mrs. Wallace on unpaid leave (period 24 January 1997 to August 1997)
[17]On 24 January 1997, the pursuer was allowed to leave hospital, although she continued to attend the Astley Ainslie as an outpatient. She lived with her parents in their home at 4 The Paddock, Seton Mains, Longniddry. Her parents provided further care and attention. Mrs. Wallace took six months unpaid leave, and cooked, cleaned, washed, ironed, and shopped for the pursuer. Initially, for a period of about three or four weeks, Mrs. Wallace helped the pursuer with bathing, toileting, and washing her hair. She tried to make the pursuer do as much for herself as possible, but had to supervise her to some extent. Mrs. Wallace also drove the pursuer out and about - to her medical appointments, to physiotherapy, including a virtual reality exercise bike in the Astley Ainslie hospital, to the Stevenson College, Edinburgh, where the pursuer attended a Special Needs Course for half a day each week, and on outings - for example, walking and swimming (the pursuer had to re-learn how to swim following the accident). Mr. Wallace assisted on his return home from work, by helping with the pursuer's evening meal, sitting with the pursuer, and helping her to bed. The Wallaces also employed a girl, Gayle Watson, to sit with the pursuer on several occasions when the Wallaces went out.
[18]Dr. David Johnson, Consultant Neuropsychologist, worked with the pursuer as an inpatient and as an outpatient at the Astley Ainslie hospital, and supervised her therapies. In a report dated 30 May 1997 number 6/3 of process, he noted at paragraph 5.5:
"Miss Wallace continues to show significant impairments in cognition: attention is characterised by slowness in responding and difficulties in controlling and sustaining attention; memory shows an average short-term capacity, but with slow assimilation of new information, difficulties in consistently recalling the same information over time and in preventing interference from competing or incorrect information. Simple visual perception is severely impaired in left hemisphere processing. Logical reasoning remains impaired. Verbal fluency remains impaired."
Dr. Johnson also noted continuing problems with speech, for example, slowness and slurring, especially when the pursuer was tired; limited concentration and difficulty dealing with more than one thing at a time; loss of motivation; fatigue; continuing hearing difficulties; some sleep difficulties; and a general need for prompting and supervision. Her primary social and leisure activities were undertaken with her mother and her sister. Dr. Johnson acknowledged the improvement which the pursuer had made since the accident, but noted that further improvement became more limited as time went on "because [the pursuer] will reach the threshold imposed by the damage to her brain". As he put it in his report dated 30 May 1997 number 6/3 of process:
"[7.3] The brain has a finite capacity and structural damage is irrecoverable. The effects of the material accident therefore will prevent Miss Wallace from ever achieving the same degree of success, satisfaction, or enjoyment as she would otherwise have accomplished in any aspect of her life. [7.4] The brain damage has increased Miss Wallace's vulnerability to any further brain insult, irrespective of cause ... [and in evidence, Dr. Johnson commented that it was accordingly vital that the pursuer should not go skiing] ...Any further insult will cause disproportionately severe impairments because of already reduced structural and functional capacity. [7.6] Miss Wallace's cognitive and behavioural impairments are sufficient to prevent her from resuming her academic studies. I doubt that she will be able to manage in the future, even with support. [7.7] I think it unlikely that Miss Wallace will be capable of anything other than sheltered or supported employment, at best ... [7.8] Miss Wallace has clearly identifiable needs in care and assistance. ... Provision of a companion-minder, for example, would alleviate the stress and demands on mother, and increase the range and frequency of opportunities for Ruth Wallace to undertake. In turn, this would facilitate her better adjustment and outlook in the longer term."
The pursuer's continuing rehabilitation after Mrs. Wallace's return to work (period August 1997 to April 1998)
[19]In August 1997, Mrs. Wallace returned to her part-time employment as a receptionist with Greig Middleton. The pursuer continued living in her parents' home. She began attending another course at Stevenson College, Edinburgh, requiring attendance on two days each week. Her course included computing, investigations, keyboarding and supported open learning. Students were permitted to work at their own pace. Miss Anne Chirnside, Imprint Coordinator at Stevenson College, in a report dated 30 March 2000 number 6/31 of process pointed out that "it is important to note that all of this work was approximately National Certificate level i.e. far below the level Ruth had been operating at before her accident".
[20]In December 1997 the pursuer underwent an exploratory operation on her right middle ear, but no improvement in her hearing was achieved.
[21]As the months passed, the pursuer began to show signs of increasing frustration and unhappiness because she was not leading the life of a normal 21-year-old. She appreciated that she was not living independently, nor was she socialising much, or doing what people of her own age normally did. Yet, as the evidence of the Wallaces and the professional witnesses made clear, the pursuer continued to suffer significant physical, cognitive, and emotional deficits such that both parents and professionals were anxious about her setting up on her own.
[22]Mr. and Mrs. Wallace ultimately provided a "sheltered" solution to the pursuer's problems. Mrs. Wallace approached an employee of Greig Middleton, Jacqueline Anderson (then aged 21), and suggested that she might like to share a flat with the pursuer, at a modest rent. The pursuer and Miss Anderson exchanged curriculum vitae. They then had a meeting, and found that they liked each other. As a result of Mrs. Wallace's enterprise, her ingenious suggestion and organisational powers, and the considerable goodwill and sympathy felt towards her and towards the pursuer, the pursuer was able to move out into a flat purchased for her by her parents, with Miss Anderson as her flat-mate and also her companion-helper.
The pursuer in her own flat: April 1998 onwards
[23]In April 1998, the pursuer moved into the flat at 24/3 Roseburn Maltings, Heriot Square, Edinburgh. Miss Anderson was not available to move in until the end of May 1998, so the pursuer's sister Gill Wallace lived with the pursuer for the first few weeks. The pursuer continued attending Stevenson College.
[24]Miss Anderson said in evidence that the flat was a luxury 2-bedroomed flat. She occupied the second bedroom. She estimated that the rent charged by the pursuer was probably about one third of the market rent. She had reached an understanding with Mrs. Wallace that, as a result of the car accident, the pursuer was no longer an average person, and Miss Anderson was not merely to be a flat-mate, but was to some extent to fulfil an additional role.
[25]Miss Anderson described assisting the pursuer in a variety of ways, for example peeling vegetables, carrying out tasks which required fine movement, lifting heavy things (including the kitchen kettle), standing on chairs, changing light-bulbs, deciphering messages on the ansaphone, phoning up the theatre to book tickets, and generally providing companionship for the pursuer. The pursuer could become easily upset, and suffered mood swings. Her inability to cry made things difficult. Miss Anderson had to be patient and take time to listen and provide a sympathetic presence for the pursuer. The pursuer's defective hearing was also quite limiting. It meant that she had some trouble using the telephone, dealing with strangers on the telephone, and conversing in restaurants and crowded areas. The pursuer also became tired very easily, and sometimes had to lie down after working two hours at Greig Middleton (see paragraph [43] below) or after a visit to the gym. Miss Anderson clearly appreciated that her role was not merely that of flat-mate, but also to some extent that of a companion-helper. Nevertheless she agreed that the pursuer could cook to some extent, shop, and do some light house-work. Miss Anderson had left Greig Middleton to work at Standard Life. She was out working full-time each day, from 8 a.m. until 6 p.m. Sometimes she went away at week-ends, whereupon the pursuer either remained on her own, or went to stay with her parents.
[26]A further report by Dr. Johnson dated 4 May 2000 number 6/30 of process stated:
"Miss Wallace is now 23 years old. It is 3 years 6 months since she suffered widespread and extremely severe brain damage as a direct result of head injury sustained in the material accident. It is inconceivable that she would show any further recovery or improvement at this time since injury.
In direct interview on 25 April Miss Wallace described her continuing problems in cognition, behaviour, physical function and social activity. She is slow and has difficulty in focusing and sustaining attention. Memory is unreliable and she has difficulty in dealing with more than one thing at a time. Mood remains a major problem. I was struck by her sense of despair, and of hopelessness and helplessness. Physically she continues to tire very easily and this restricts her activity levels. Activity is focused upon a few hours' work daily in her mother's office. This is her lifeline in many respects, giving her the reason to get up in the mornings, offering some social contact and providing a limited sense of self-worth. Other social contact is fairly limited and often involves her mother or sister. I note Ruth's description of time spent sitting in her flat staring at the walls because she is too tired to do anything else. I understand that Ruth continues to live in her flat but that she spends a considerable amount of time with her parents at their house. Ruth said that she would readily live with her parents if they were in the city.
Ruth has no plans for the future. She does not see anything ever changing. Whilst she would dearly love to get married and have children she is sufficiently aware of her mental and physical disabilities that she doubts her ability to successfully pursue these otherwise normal life events. She tries not to think of the future because it increases her feelings of depression, low self-esteem and so on.
It was during these discussions that I became concerned by Ruth's emotional state. She was really quite desperate and despondent. I decided that it would not be in her best interests to continue the examination by formally testing her cognitive functioning. The court should be in no doubt that the extremely severe and widespread brain damage sustained by Ruth Wallace would lead to substantial impairments in fundamental cognitive functions, such as attention, memory, reasoning and perception. There is no rational basis for anyone to assume that such functions would have recovered completely.
In summary, very little has changed for the better in this unfortunate young woman's life. She has suffered permanent and irreversible brain damage, with consequent losses in all WHO areas for quality of life - physical, psychological and social. She is at a very significant risk of emotional or psychological disorder secondary to those losses. I would not rule out suicidal risk. There is very little quality of life for her because she is capable of doing so little..."
[27]Dr. Johnson explained in evidence that the pursuer's continuing cognitive problems stemmed from the fact that her damaged brain took longer to "take things in". If someone spoke, her brain would be able to process about two-thirds of what was being said, but would lose the last bit. There was difficulty learning anything new. She was slow, and had difficulty focusing and sustaining her attention. She was unable to be efficient, or to plan ahead. Her memory was unreliable. She had difficulty dealing with more than one thing at a time. Her mood was often low, and she experienced feelings of despair, hopelessness and helplessness. She continued to tire very easily, with consequential restrictions on her activities. Dr. Johnson explained that the tiredness was a reflection of the limited capacity of the damaged brain. After about one year, a patient's recovery tended to plateau and little further improvement could be expected. The pursuer's feelings of fatigue would not improve. For the pursuer, a superficial social situation was like a concentrated spring: she was unable to sustain it, she literally had to sit back and take a rest. The pursuer spent considerable periods of time sitting in her flat staring at the walls because she was too tired to do anything else. She had sufficient insight to appreciate that she was unlikely to get married or have children. The pursuer was aware of her disablement and limitations, and suicide could be a real risk.
[28]In relation to the defender's rehabilitation report by Personal Injury Services Limited dated 16 December 1998, number 7/1 of process, Dr. Johnson confirmed that it was quite acceptable to work with a patient in their home, trying strategies to improve memory. However bearing in mind the pursuer's brain damage and limited brain capacity, he did not consider that such endeavours would make the pursuer employable or capable of doing things she currently found difficult. Dr. Johnson was also of the view that if the pursuer were to be given further rehabilitation, she might react unfavourably.
[29]Mrs. Wallace's evidence tended to support the views given by Miss Anderson and Dr. Johnson. Mrs. Wallace generally telephoned the pursuer two or three times a day. For a period she felt she had to telephone the pursuer each morning in order to ensure that she had got up. Mrs. Wallace also made a point of meeting the pursuer regularly for lunch or coffee. She spent time with the pursuer at weekends, and had the pursuer to stay at 4 The Paddock when Miss Anderson was going to be away from the flat. Mrs. Wallace also helped the pursuer with her affairs. For example, the completion of DSS forms which required details about the pursuer's disabilities tended to upset the pursuer, and she needed help to fill them in. Telephone-calls to electricity or telephone departments about malfunctioning equipment were beyond the pursuer's capability. The pursuer generally had difficulty maintaining her concentration. She could not watch and understand a TV programme (although oddly enough she was able to sit through a film in the cinema). Mrs. Wallace felt that the pursuer's recovery had plateaued at the level of a ten-year-old. She said: "I feel I always have to be there for her". The pursuer relied on her, using her as an emotional crutch when she was depressed or despairing, and yet sometimes could be quite unpleasant to her. When Mrs. Wallace asked her whether she treated her friends that way, she replied that if she were to do so, she would have no friends at all. On occasions Mrs. Wallace received despairing or panicky telephone calls from the pursuer late at night, which she had to deal with.
[30]Mr. Wallace stated that the pursuer viewed staying at 4 The Paddock as an admission of failure. She tended to remain in her flat at weekends, having little contact with people outside. He described her as suffering from depression and loss of self-confidence, someone requiring enormous support from her mother in order to keep her in a steady state. There had been a huge change in the pursuer, from a popular attractive girl to a rather isolated individual lacking in confidence. At one period he had taken to calling at the pursuer's flat on his way home from work every evening, to ensure that she was coping.
[31]Gill Wallace said that she usually spoke to the pursuer on the telephone every day. She also spent time with the pursuer during university holidays, because the pursuer became bored and lonely. The pursuer could become agitated when she sat at home. She was unable to watch simple TV programmes. However she could also become confused and frustrated when in noisy environments. Gill usually took her for a coffee or to the cinema. The pursuer could become very tired. She suffered mood swings, often becoming quite depressed. Gill made sure that if Mr. and Mrs. Wallace were on holiday, she was available if the pursuer wanted to see her, which she usually did. On the social side, Gill had noticed that the pursuer tended to put up a façade for friends, but was exhausted afterwards.
[32]The pursuer described her predicament with a considerable degree of insight. She said words to the effect that "things become too much for me some days ... I don't like to be in my flat. Time's passing me by. School friends are doing their University finals. I'm disabled, but not that disabled. I'm a `fine line' between the two, which is difficult to deal with. Meeting new people is very hard. In restaurants and pubs ... I don't know what people are saying. I'm scared to say anything in case it's wrong ...I feel so left out and different from everyone else ... I feel so isolated and alone". She confirmed that she had had no boyfriend since the accident. She felt that she and Miss Anderson were not getting on as well as they had at the beginning of their flat-sharing. The pursuer had managed to keep in touch with two girls who had also been at Northumbria University and who would have been her flat-mates but for the accident. Otherwise the pursuer had made only one new friend since the accident. She received "a lot of support" from her mother, whom she spoke to two or three times a day, and met with regularly. She had also had two sessions with a clinical psychologist, focusing on anxiety management and planning her day. She had found these sessions helpful.
[33]Jane Kunkler, the clinical psychologist, confirmed that the pursuer had been referred to her in May 2000 by Dr. Johnson as she seemed to be clinically depressed and suicidal. Two sessions had taken place, at a cost of £62 each. The pursuer had requested a further session once the court case was over. Miss Kunkler thought that the pursuer might benefit from further sessions in the future, if disturbing developments arose such as friends or colleagues moving away and making progress, while the pursuer was left behind, more and more isolated. Miss Kunkler thought that the pursuer would remain vulnerable, and that she would require support from persons outside the family.
[34]Mr. Talbott had interviewed the pursuer for a second time on 21 January 2000, about one and a half years after her move to her new flat. The pursuer had insisted on speaking to him alone. When Mr. Talbott asked her whether she had enjoyed moving to her own flat, and whether she had found the move helpful and encouraging, the pursuer said that she had, but that she had not realised how lonely she would be. She was beginning to realise how dependent she was on others. Mr. Talbott described the pursuer as being very demanding on her family's time, with telephone calls, requests for physical help or advice, companionship, and so on.
[35]In my view, while the pursuer might appear prima facie to have regained some degree of independence, that appearance is misleading. In reality, the pursuer requires regular assistance and monitoring because of her continuing physical, cognitive, behavioural, social and emotional problems.
[36]In particular, the evidence disclosed that her continuing physical problems include weakness in the left arm and leg with a tendency to shake or go into spasm when tired or placed under stress; resultant difficulty carrying certain things in her left hand, or going down stairs; difficulty with fine movements; poor balance; an inability to run; deafness, particularly when in company or in a noisy environment; a slightly unusual speaking voice (which Mrs. Wallace described as "like a deaf person's"); a tendency to choke when drinking liquids; a complete lack of menstrual cycle since the accident, which suggests that she is not at present capable of having children even if she felt that she could realistically look after a family; a lack of stamina and a tendency to become exhausted after working for an hour or two, or after exercise; poor sleep; and an inability to cry. She is no longer able to lead the active life, including the social and sporting life, which she led before the accident.
[37]The evidence also disclosed significant continuing cognitive and behavioural problems as described by Dr. Johnson, and social and emotional problems including feelings of panic, depression and suicidal thoughts - for example late at night, often arising from sudden insights into the fact that her friends were graduating, moving away, and making something of their lives, whereas she felt isolated, different, limited in what she could do, and no longer on an equal footing with her contemporaries.
Continuing further education and employment: September 1998 to date
[38]The evidence of Professor Newall and Keith Carter indicated that, had the pursuer completed her university course with a lower second class honours degree, she would have graduated in the summer of 1999, and would have been eligible for a variety of employments in the housing, property and building construction sector. In his report number 6/33 of process, Keith Carter outlined salary levels which could be anticipated.
[39]The pursuer tried to return to university in September 1998, following upon her regaining her driving licence after several attempts to pass the test. She began a business course at Napier University, Edinburgh. However she found it impossible to cope with the high-rise building, the lifts, the hustle and bustle, and the need to hear what people were saying. She could not sustain her concentration. She left Napier after a month.
[40]Miss Chirnside, the Imprint Coordinator at Stevenson College, had had reservations about the pursuer's attempt to re-enter mainstream further education. In her report dated 30 March 2000 number 6/31 of process, she stated:
"Understandably, Ruth was looking to the future, and she wished to apply to Napier University to do a Higher National Diploma in Business starting in September 1998. Ruth felt she had `missed out on things' and desperately wanted to have a university experience with all that entails. In November 1997 she completed a UCAS form for university entrance. ...
The most relevant comments from [reports on the pursuer's progress in Stevenson College for the period January to June 1998, before her attempt at Napier University] came from the two Business Studies lecturers. The lecturer for Introduction to the Nature of Business (National Certificate level) was aware that Ruth had started a university degree before her accident, and he expressed surprise at Ruth's written work which he described as being quite basic, with unsophisticated arguments. He also remarked that the work on his course seemed to be below Ruth's level, and yet she did not express any dissatisfaction with that. The lecturer for Working with People in Teams (Higher National Level) pointed out that Ruth worked slowly. This lecturer strongly recommended that Ruth stay at Stevenson as she felt Ruth needed the support systems in place here. She expressed serious concerns about Ruth being able to `survive' the speed, the volume and the level of work required on the HND at Napier.
These concerns confirmed my own anxieties. In my report at that time I wrote `I have reservations, mainly connected to speed of information processing, both receptive and productive" i.e. that Ruth's ability both to absorb and produce information seemed reduced, and this could prove an impediment to success in a demanding Higher Education environment ...
At the beginning of November 1998, I was contacted by David Johnson, Department of Neuropsychology, Astley Ainslie Hospital. He told me that things had not gone well at Napier University, and asked if I might meet with Ruth to discuss a programme.
When Ruth and I met it was clear that she had experienced a very difficult few months. Her description of the enormity of her disappointment and painful realisation of limitations was distressing to hear. I felt upset, but full of admiration for Ruth who had worked through this, and was now looking for a way forward ...
We ... devised a programme which included two mainstream classes: one with the Health and Recreation Section and the other in Photography, as well as two technology groups (Computing and Word Processing) under IMPRINT, i.e. supported ..."
[41]In January 1999, the pursuer was given a new blue VW polo automatic car. She used the car to visit family and friends. In February 1999 she began another course at Stevenson College, concentrating on photography. However in June 1999 she stopped attending, feeling that she was limited by her physical problems and that she was not managing to keep up with the other students. Miss Chirnside's summary of events in her report number 6/31 of process noted:
"By March 1999 Ruth had completed a National Certificate course in Personal Wellbeing and Exercise, as well as an introductory Photography module. She had enjoyed both. Unfortunately, she felt unable to continue with the Photography as it was becoming too detailed, and it required too much fine motor control...
At our final review in May 1999, Ruth said that she felt she had come to the end of her time at College. It was `time to move on'. She seemed to have acquired a good level of insight into her situation, and was accepting of the limitations it placed on her ..."
[42]Miss Chirnside summarised her view of the pursuer's situation in the final paragraph of her report dated 10 April 2000 number 6/31 of process as follows:
"Throughout the time she was with us, Ruth showed herself to be a gentle, unassuming, quiet girl. She was popular with the other students, and very much liked and respected by staff. She made great progress in terms of increased independence and mobility - Ruth was delighted to move into a flat and to start driving again. However, it is clear that Ruth is not able to function at the level in which she did before her accident. This is most clearly observable in the `slowness' which has been mentioned several times in this report. It reduces her capacity to deal with information, both in terms of intake and output, and is an obstacle to the kind of environment and aspirations Ruth had hoped for, not only academically, but also socially."
[43]Following upon these developments, Mrs. Wallace approached Angus Tod, the chairman of Greig Middleton, and asked whether there might be some work available for the pursuer in the firm. Again Mrs. Wallace's ingenuity and enterprise, together with the goodwill and sympathy felt towards her and towards the pursuer, achieved results. Mr. Tod arranged that the pursuer should commence certain fairly restricted work as a clerk for two hours a day at the office of Greig Middleton.
[44]The pursuer started work in February 2000. Her main duties comprise photocopying, faxing, and what she described as the carrying out of a repetitive exercise involving comparing two figures and obtaining the percentage change (Mr. Tod subsequently gave a clearer picture of the task which the pursuer was attempting to describe: he stated that the task was the measuring of increases in the values of stocks). The pursuer's pay is £215 per month or £2,580 per annum, with no deductions in respect of National Insurance or tax.
[45]The pursuer explained that when she first began at Greig Middleton, she had been unsure how to do the repetitive exercise, and had to have written instructions in front of her. However she could now do it without the instructions. According to Mrs. Wallace, the pursuer's ability to concentrate on the exercise is limited: she is only able to handle a certain number at a time.
[46]The pursuer demonstrated considerable insight into her position at Greig Middleton. She stated that she loved her job, but that it had brought home to her how disabled she was. She described the job as "more a sort of social thing, to be honest." She was aware that her limited concentration and stamina, her unreliable balance, and her shaky left arm and leg, were problems both for her and her employers. She also stated that she could easily become flustered, and that things could "get on top of her". When this happened, her employers allowed her to go out of the office building, and have a quiet wander, until she felt able to come in again. On some days, she worked far less than two hours.
[47]The evidence of Mr. Tod confirmed the pursuer's assessment of her situation. It was quite clear that special efforts were being made to accommodate the pursuer, and considerable allowances were being made for her. Mr. Tod said that it was his responsibility to find work for the pursuer. Frankly, he had been disappointed by her progress. He had known the pursuer socially prior to the accident, and had considered her a bright, intelligent girl. However after the accident, once she took up her post as clerk, she had seemed to find routine tasks something of a challenge. She had difficulty moving around the three floors of the office building. She moved erratically, particularly on the stairs, and was regarded by other employees as a hazard. There was concern that she would fall on the stairs, especially if she was carrying files. The pursuer also seemed to suffer high levels of stress and anxiety, and felt the pressure of having to put files away, although she seemed to manage to put them in the correct place. Mr. Tod said that the office did not really need her. They had created a post for her because they were sympathetic to her and because they had known Mrs. Wallace for a long time. It was unlikely that any more working hours would become available for the pursuer. She was tired doing the hours she did. The merest suggestion of pressure was highly stressful for her. The pay was about £2,600 per annum, with no deductions. The pursuer was touchingly grateful for the post, which was the most junior in the office.
[48]Dr. Johnson stated that in his view, the pursuer is not employable in the practical sense. She is unable to cope with time pressures. She cannot be flexible. Dr. Johnson thought that she would be unable to do more than about two hours per day. Any employment would have to be very structured, sheltered, and therapeutic. Her current job had proved a life-line for her. If it were to terminate, her mood and adjustment would suffer. Prior to her being allowed to work at Greig Middleton, Dr. Johnson had been so worried about the pursuer's mood that he had made a special and rather artificial arrangement whereby she could do some voluntary work for him, in his office, photocopying and doing menial tasks. The job at Greig Middleton gave the pursuer "the reason to get up in the mornings, offering some social contact and providing a limited sense of self-worth".
[49]Miss Anderson also confirmed that there had been a noticeable improvement in the pursuer since starting at Greig Middleton. The pursuer enjoyed having contact with people. The job helped her self-esteem.
[50]Mr. Talbott, at p.6 of his report dated 25 April 2000 number 6/34 of process, stated:
"...I do not see [the pursuer] working productively in the foreseeable future, or holding down any particular job that requires memory, concentration or initiative. She might be able to undertake routine tasks, but her physical limitations will limit her choices."
[51]On the evidence, I am satisfied that: (1) but for the connection between Greig Middleton and the pursuer's mother, it is highly unlikely that Greig Middleton would have taken the trouble to create what is in effect a form of sheltered employment for the pursuer. (2) The pursuer is unlikely to be able to work for more than about two hours a day. (3) The pursuer is only able to retain her position at Greig Middleton because of their wish to help Mrs. Wallace and the pursuer. (4) If the pursuer were to try to obtain a job through ordinary channels, she would be unable to find or to keep any employment. (5) Prior to the accident the pursuer had reasonable prospects of obtaining and retaining some sort of remunerative employment in the housing, property, and building construction sector, or elsewhere, but now she is virtually unemployable.
Therapies
[52]The pursuer stated that, at the suggestion of Kevin Paterson's mother, she had in late 1999 begun to attend a sports and fitness centre, Next Generation, Newhaven, Edinburgh. She had a personal trainer, Paul Melia, who worked out what exercises she should do. At present they were working on improving her co-ordination, and they were trying to enable her to run again. The pursuer spoke with enthusiasm about her gym sessions.
[53]Dr. Johnson confirmed that it was beneficial for the pursuer to have a personal trainer in the gym. It was well-established that both brain and mood benefited from exercise. The pursuer needed someone to give her a structure, and to help her work within her capabilities.
[54]Mrs. Wallace confirmed that, although the sessions often quite exhausted the pursuer, such that she had to lie down after them, they were good for her, and the pursuer was trying very hard at the tasks set for her - for example, to learn to run again (although progress seemed slow).
[55]Paul Melia, the personal trainer, confirmed that he prescribed certain exercises for the pursuer. They were working on improving her posture, co-ordination and movement. There had been considerable improvement, both physical and psychological. Before the gym training, the pursuer's body posture had been "like a banana, with all the weight on the right side, using the left leg like a stick". Mr. Melia had given the pursuer two sessions a week. The normal cost of a session was £35, but he had charged £25 because he understood that her finances were restricted. He considered that she would benefit from three sessions a week.
[56]I am satisfied that a personal trainer who encourages and motivates the pursuer to perform exercises in the gym is indeed important for her physical and mental well-being. In my view, without such a trainer, the pursuer would have difficulty motivating herself either to attend the gym or to carry out exercises there.
Continuing need for a companion-helper
[57]Dr. Johnson in his report dated 4 May 2000 number 6/30 of process commented:
"It would be beneficial if [the pursuer] would accept help from an enabler or companion-minder to increase the range and level of engagement. As time goes on and her peers become ever more distant in their lifestyles, so it becomes increasingly important to maintain a comprehensive care structure".
In evidence, he confirmed the need for such a companion or enabler. As the pursuer's brain capacity was limited, it was important that she used her capacity for enjoyable things such as the gym. It was not appropriate for her to use up her capacity in cleaning, washing and so on. Also she needed a companion to encourage her to undertake a wider range of activities, and to help her to come to terms with the fact that she would not be able to retain old friends. In cross-examination, Dr. Johnson agreed that someone such as the pursuer might not wish to have a support companion. Sometimes a paid companion made a person feel disabled.
[58]Mr. Talbott, the Joint Director of Personal Medical Claims Services, had considerable experience of the needs and difficulties encountered by people with head injuries. In 1979 he was a co-founder of Headway, a national association for people who had suffered traumatic head injury. He also had experience as a loss adjuster, probation officer, and social work training officer. Mr. Talbott stated that in his experience people who had suffered a head injury could have an unrealistic perception of what they could achieve without help. So far as the pursuer was concerned, his opinion was recorded at p.7 of his report dated 24 September 1997 number 6/27 of process: " ... I do not feel that she is as independent as she likes to believe for herself, and she has a great deal of subtle support from her family ...". He stated that in his view the pursuer needed someone, a companion, or supervisor, or helper, or enabler, to monitor and assist her. On a practical level, she needed help with two-handed tasks such as opening parcels, replacing light-bulbs, and sweeping and cleaning. On another level, the pursuer had difficulty initiating activities. Her previous daily life had been spontaneous, busy, and unmonitored. Now however she had to have everything carefully planned and supervised. It was difficult for her to initiate activities or contacts. She would not be able to rely on former friends, with whom she would gradually lose contact as they found that they were no longer on the same wave-length.
[59]Prior to the pursuer's move into an independent flat, Mr. Talbott dealt with the question of a companion-helper at p.8 of his report dated 24 September 1997 number 6/27 of process as follows:
" ... As regards her long-term future, [the pursuer] was prepared to admit that she should have a flatmate for help, but insisted that this was not for any form of supervision ... Bearing in mind Ruth's speedy but limited improvement, I see no reason why she should not have an independent home ... She will need to have adult help and supervision for the foreseeable future, but this help will need to be unintrusive, and her view of a flatmate seems to me to sum up what she might be willing to accept.
The job description/employment contract of a carer would have to be carefully drawn up and if Ruth felt that the other person was in charge of her, or reporting on her to others (including her parents) then I have no doubt she would be resentful and/or distressed."
After the pursuer had moved to her own flat, Mr. Talbott commented at p.6 of his Supplementary Report dated 25 April 2000 number 6/34 of process as follows:
"Without going into great detail, [the pursuer] admits that she is disappointed in herself for not being able to undertake and sustain the various courses that she has attempted.
She still has limited speech problems, some physical disabilities and problems of memory and concentration.
Whilst she would agree that she has a certain amount of independence (inasmuch as she lives now away from her parents' home in her flat), she has to admit that she is still dependent on other people, family and friends, for some daily activities and her social and intellectual life. She does not have the initial ability to initiate activities and whilst the activities that have been suggested to her have been acceptable, even those activities as described have been terminated early, due to her continuing problems.
...I am of the opinion that she will always need an outside voice to advise, support and guide and to this end I have included with my report figures representing the value of care, past, present and future, so that she can remain active in the community without having to face the possibility of returning to her parents' home. Her parents would most willingly look after her again, but she is a generation apart from her parents and even with their support, the carer should be someone of Ruth's generation or perhaps a little older. I do not see the amount of care lessening sufficiently over the next few years to indicate that there will be less care in the year 2005 or 2010, and I have indicated the level of care at 4 hours per day, since I believe that this is a reasonable level of input to sustain her in the community."
[60]I accept that the pursuer's ability to cope with day-to-day life has been seriously impaired by her head injury. Obvious deficits include her deafness, lack of balance and co-ordination, limited strength and stamina, inability to cope with stress and conflicting demands, and decreased powers of concentration and problem-solving. Less obvious deficits exist: she is now, in an indefinable but immediately recognisable way, "different" from her peers. Whereas before the accident she could actively seek work, interests, and opportunities, socialise with ease, pursue recreations, and create and maintain personal relationships, she is now (whether she fully understands it or not) lacking in motivation, stamina, ability to sustain personal relationships and to solve day-to-day problems. But for the efforts and patience of her parents, sister, and flat-mate Miss Anderson, she would in all probability become a lonely isolated individual.
[61]I am satisfied that the pursuer requires and will continue to require the services of some sort of companion-helper throughout her life, to ensure that she manages to maintain a reasonable lifestyle involving some social life, some exercise, some general motivation, and some nominal employment, albeit largely therapeutic. Counsel for the defender suggested that the pursuer would not accept a paid companion or minder. However I was impressed by the ingenuity with which the pursuer's parents managed to achieve that goal in a rather indirect way which proved acceptable to the pursuer. I am of the view that the pursuer's family, friends, and professional advisors will in the future provide either their own necessary services and/or the services of someone acceptable to the pursuer albeit paid - for example, a regular house-keeper, or a private tutor or mentor, or a holiday companion. It is impossible to predict the precise arrangements which will be reached in the future, but I am of the view that Mr. Talbott was correct in his opinion that a companion will not always be obtainable by offering accommodation at a reduced rent. As he put it at p. 9 of report number 6/34 of process:
"There needs to be understanding, empathy and consistency of approach by someone whom Ruth comes to trust and with whom she shares her problems. The carer does not need to live on the premises at all times, but should be employed on the understanding that in periods of illness or depression, she will have to work greater hours, sometimes staying overnight, and have some time off in lieu when there are more settled periods."
Mr. Talbott estimated an annual figure of about £6,000 if necessary services were rendered by relatives; and £11,460 if it proved necessary to obtain a paid carer-companion. In relation to that latter figure, he conceded that if the Wallaces were to obtain the services of a companion-helper by direct advertisement, or in some other way avoiding the use of an agency which charged a commission, a substantial percentage representing the commission would fall to be deducted, resulting in an annual multiplicand of about £8,000. I consider that a broad view has to be taken in relation to this head of damage, but Mr. Talbott's evidence was of assistance in evaluating the potential annual value or cost of future services.
Quantum of damages
Solatium
[62]Counsel for the pursuer referred to McDonald v. Chambers, 2000 S.L.T. 454, O'Connor v. Matthews, 1996 S.L.T. 408, Heil v. Rankin [2000] 2 W.L.R. 1173, and Allan v. Scott, 1972 S.C. 59, and invited me to value solatium at £102,000, with one half allocated to the past.
[63]Counsel for the defender referred to Fullemann v. McInnes' Exrs., 1993 S.L.T. 259, O'Connor v. Matthews cit. sup., the Judicial Studies Board Guidelines, and Khan v. Jones, Kemp and Kemp C2-015. She submitted that the Scottish courts should not follow the guidance in Heil v. Rankin, which was a decision of the English Court of Appeal, and was not binding on Scottish courts. Heil was a peculiarly English decision, influenced by a report from the English Law Commission on Damages for Personal Injury: Non-Pecuniary Loss (1999, Law Com. No.257). The case reflected English views about appropriate levels of damages for personal injuries. Standards of living were not the same in Scotland and England. In particular, one had to bear in mind London-weighting, and the fact that the pound had a lesser purchasing power in London. Counsel submitted that solatium should be valued at £65,000, with one third allocated to the past.
[64]With reference to Heil v. Rankin, the decision of the Court of Appeal is in my view highly persuasive. I consider that Scottish courts can and should find assistance in the guidelines set out in Heil. Damages to compensate a victim for pain and suffering are measured by reference to the injuries suffered, not by reference to the area in which the victim lives. It would be unfortunate if levels of awards for personal injuries in Scotland were to be significantly different from levels for such awards in England: cf. dicta in Allan v. Scott, cit. sup.
[65]In relation to the pursuer's injuries, I am satisfied that her head injury has severely impaired her physical, mental and emotional functioning. Her life has been significantly restricted and altered. She has a degree of insight into her condition which makes her situation all the more frustrating and depressing. I award damages for solatium of £95,000, one third of which is attributable to the past.
Loss of earnings
[66]Past loss of earnings: Counsel for the pursuer submitted that, had the accident not occurred, the pursuer would have graduated in June 1999, and would have found employment. An award should be made for past loss of earnings. Keith Carter's report number 6/26 of process provided a range of likely salaries. An annual salary of £10,800 net might be appropriate.
[67]Counsel for the defender submitted that the evidence did not come up to establishing that the pursuer was likely to graduate in the summer of 1999. She was someone with learning difficulties, who had not found university easy. In any event, she might well have taken a gap year and would not therefore have begun working until some time in 2000.
[68]I was satisfied on the evidence that the pursuer, prior to her accident, had sufficient capacity and tenacity to achieve a degree at Northumbria University by summer 1999. However in my view, she might well have taken a year or so to find suitable employment - for a variety of reasons, not necessarily because she would have taken a gap year. Accordingly I make no award in respect of past loss of earnings.
[69]Future loss of earnings: The pursuer is currently aged 24. Counsel for the pursuer submitted that, but for the accident, the pursuer would have obtained a lower second class honours degree, and would have obtained employment in the property development field. However, as a result of the accident, she is virtually unemployable. Damages for future loss of earnings should be assessed by means of a multiplier and multiplicand. It was not appropriate to make any reduction in the multiplier to reflect the possibility that the pursuer might marry and have children. Reference was made to Hughes v. McKeown [1985] 1 W.L.R. 963; McDonald v. Chambers, 2000 S.L.T. 454; Gerrard v. Swanson's Exrs., 1980 S.L.T. (Notes) 43; Moriarty v. McCarthy [1978] 1 W.L.R. 155; and Kemp and Kemp paragraph 5-114 et seq. Counsel submitted that the appropriate multiplier should be selected from Table 14 of the Ogden Tables (3rd ed.), and should be 22.5, being 23.38 adjusted for contingencies other than mortality. Counsel referred to Section B of the Explanatory Notes to the Ogden Tables, headed "Contingencies other than mortality", and pointed out that Tables A and B make provision for adjustments for males aged 25, but Table C relating to females had no similar provision, the youngest female age given being 35. Counsel submitted that an average adjustment factor of 0.97 could be extrapolated from Tables A, B, and C as the appropriate factor for the pursuer aged 24. It was further submitted that the adjustment factor of 0.97 should be reduced by 0.01 to reflect the pursuer's residence in Scotland (paragraph 40 of the Explanatory Notes) but then increased by 0.01 to reflect the fact that the pursuer would have been engaged in a less risky occupation (paragraph 37 of the Explanatory Notes). In the result, the correct multiplier was 22.5, being 0.97(23.38) = 22.67, rounded down.
[70]In relation to the multiplicand, on the basis of Keith Carter's report number 6/33 of process and making a deduction of 6% of gross annual figures to reflect pension contributions, it was suggested that the pursuer would have been expected to earn net annual salaries of about £9,950 for 21/2 years; £12,598 for 2 years; £18,157 for 16 years; and £21,685 for 2 years. The pursuer's average annual earnings of £2,580 from Greig Middleton should of course be deducted, although counsel for the pursuer contended for a multiplier of eight years in respect of those earnings, bearing in mind that her job had been created for her, that Mr. Tod was already disappointed with certain aspects of her work, and that the pursuer might become even less employable as she grew older. Applying the approach suggested, the damages in respect of future loss of earnings totalled £363,313.
[71]Counsel for the defender, on the other hand, submitted that the pursuer was not unemployable. She was able to do something: she was currently working. Further there had been so many imponderables and uncertainties in the pursuer's employment future even before the accident that it was not appropriate to adopt the multiplier-multiplicand approach. The pursuer had learning difficulties. She had experienced difficulty both at school and at university. It had not been established that she was likely to graduate in summer 1999 with a lower second class honours degree. In any event, even with such a degree, there was no evidence about the sorts of jobs and salaries which graduates of the pursuer's course at Northumbria University could hope to achieve. There was a further imponderable: the pursuer might have married and had children, and might have taken time off work. Reference was made to McDonald v. Chambers, 2000 S.L.T. 454; Blackhall v. McInnes, 1997 S.L.T. 649 at p.652E. A lump sum of approximately £100,000 would be an appropriate way of acknowledging the pursuer's loss while taking into account the imponderables. However if a multiplier-multiplicand approach were to be adopted, the multiplicand should reflect the deduction for the Greig Middleton earnings, and should be kept in the region of £10,000 because the pursuer's future had been so unclear. The multiplier should be obtained from Table 4 of the Ogden Tables, not Table 14. Tables 11 to 20 relied upon elements of speculation, and had been disapproved by the insurance industry in Appendix C to the Tables (Comments by the Association of British Insurers). The multiplier obtained from Table 4 should be further discounted to 18 to reflect all the imponderables in the pursuer's case. In other words, the maximum damages awarded under this head would be £180,000.
[72]In relation to the multiplier, I do not accept the defender's contention that Table 4 is the appropriate Table. I agree with Lord Reed in Wilson v. Pyeroy Ltd., 2000 S.L.T. 1087; 2000 S.C.L.R. 448, that Tables 11 to 20 should be applied in preference to Tables 1 to 10; see too Worrall v. Powergen plc [1999] P.I.Q.R. Q103. Accordingly Table 14 is in my view the appropriate source for the multiplier. However without actuarial guidance, I am unwilling to accept the pursuer's counsel's suggestion that an adjustment factor of 0.97 can be gleaned from Tables A, B and C. In my opinion, the court should be guided by Table C alone, and the adjustment factor most appropriate to the pursuer is 0.95. I accept the pursuer's counsel's submissions in relation to paragraphs 37 and 40 of the Explanatory Notes. Accordingly the multiplier to be applied is in my view 0.95(23.38) = 22.21.
[73]In a situation such as the present, where a pursuer has commenced a course at University, but has suffered an accident before completing her further education and demonstrating a determination and capacity to earn an income of a certain level with prospective future increases, there is inevitably a degree of uncertainty when assessing damages for future loss of earnings. However as indicated above, I am satisfied on the evidence that prior to the accident the pursuer would have obtained a degree at Northumbria University, probably a lower second class honours degree. I was also satisfied on the evidence that she would have sought and obtained employment, possibly in property development, but not necessarily restricted to that employment sector. Whether or not the pursuer might have taken some time off work to bring up children is in my view simply one of the many unknowns and imponderables in a case such as the present. Deriving assistance from both counsel's submissions and from inter alia Keith Carter's reports numbers 6/25 and 6/33 of process, I consider that the many unknowns and uncertainties are best reflected by adopting a net multiplicand (already reduced to reflect continuing modest earnings from Greig Middleton) of £10,500 per annum, to which should be applied the full multiplier of 22.21. Damages in respect of future loss of earnings accordingly amount to £233,205.
Loss of pension rights
[74]Damages in respect of loss of pension rights were agreed at £40,000. I shall accordingly award £40,000 under this head.
Necessary services and companion-helper
[75]In the course of the proof counsel for the defender objected to a line of evidence directed to recovering damages in respect of services rendered by Miss Anderson, on the ground that there was no record. Miss Anderson was not a "relative" within the meaning of s.13 of the Administration of Justice Act 1982. Nor were there any averments about the appropriate market rent for a flat such as 24/3 Roseburn Maltings, coupled with averments about rent lost or services rendered in lieu of rent. During the proof, I allowed counsel for the pursuer to continue leading evidence, under reservation as to the competency and relevancy of such evidence. I now rule that that the pursuer's pleadings are not sufficiently focused, clear, or detailed in this regard to give fair notice to the defender of such a head of claim. I should add that I also concluded that insufficient evidence was ultimately led by the pursuer to enable an informed view to be taken about what, if anything, the pursuer was paying for Miss Anderson's services. For example, there was no evidence about the market rent for the flat. I therefore sustain the defender's objection to the line of evidence insofar as attempting to recover damages specifically for Miss Anderson's past services. That is not to say that I cannot take her services into account as part of the overall picture. Indeed, as becomes clear below, I consider Miss Anderson's contribution essential to the pursuer's general welfare and ability to live in her own flat.
[76]Past services: section 8 of the Administration of Justice Act 1982: Counsel for the pursuer submitted that Mr. Talbott's valuation of the necessary services rendered to date by the Wallace family should be accepted. Mr. Talbott's reports numbers 6/29, 6/34, and 6/45 were referred to. Mr. Talbott had used rates set by a national charity, Crossroads Care, which did not charge an agency commission or profit. The value of the services rendered during the period prior to and just after the pursuer's move into her flat (i.e. the period 11 October 1996 to about 31 May 1998) added up to £30,273, which had to be discounted by 25% to reflect the absence of tax or National Insurance contributions where services were rendered by relatives: cf. Fairhurst v. St. Helens and Knowsley Health Authority, 1995 P.I.Q.R. Q1; O'Connor v. Matthews, 1996 S.L.T. 408. From May 1998, Mr. Talbott had estimated services on the basis of 6 hours per day in 1998, and 4 hours per day in 1999 and 2000, on the view that in 1998 the pursuer had to settle down in her new flat, and therefore initially required a higher level of help and assistance. He had used BNA agency rates, on the view that once the pursuer was in her own flat, a paid companion would ultimately be required: see p.8 of his report dated 25 April 2000 number 6/34 of process: "From the date of move to flat and appointment on 1.6.98 of companion-carer, I have included commercial rates (which would be payable if an agency were to be used for recruiting and providing staff)." The gross annual cost for a 6-hour-per-day service in 1998 was £14,750; for a 4-hour-per-day service in 1999 was £10,917; and for a 4-hour-per-day service in 2000 was £11,460. Mr. Talbott agreed that, as these rates incorporated an element for agency commission, tax, and National Insurance contributions, they had to be substantially discounted where relatives in fact rendered the services. In the result, counsel contended for total past care costs, duly discounted and adjusted, of £30,669, to which he submitted should be added the expenses incurred in rendering the necessary services, viz. £1,070 as set out in number 6/23 of process.
[77]Counsel for the defender submitted that the pursuer was able to look after herself. She could drive, shop, and cook. She could photocopy, file, fax, and check figures. She could live in her flat on her own, resting on her bed, or listening to music, and so on. With the exception of the first six months following upon her leaving hospital, the pursuer had not required care or supervision. Mrs. Wallace had returned to work, at which time the level of services being rendered had reduced considerably. There had been a further reduction in the services required and rendered in April 1998, when the pursuer moved into her own flat. Mr. Talbott's figures for services during the year 1998 were based upon a 42-hour week (6 hours necessary services per day), but the evidence had not established such a level of care. For the years 1999, 2000 and future years, Mr. Talbott adopted an assumption of 4 hours care or necessary services per day: again that was excessive, on the evidence. It was further submitted that it was not appropriate to assess damages for services rendered by relatives using commercial hourly rates. Even with discounted rates for services rendered by relatives, the hourly rates were too high. In conclusion, in relation to past services, a total lump sum award of £15,000 would be appropriate.
[78]I was satisfied on the evidence that, as a direct result of the accident, the Wallace family (and in particular Mrs. Wallace) provided, and continue to provide, substantial and significant services. The services rendered were particularly intensive during the first nine months following upon the accident, but I am satisfied that fairly substantial services continued to be rendered after Mrs. Wallace's return to work in August 1997, for so long as the pursuer remained resident in the family home (i.e. until April 1998, when the pursuer moved into her own flat). I am also satisfied that for the first few weeks after the pursuer moved into her new flat (i.e. during May 1998), she required the services of her sister Gill Wallace, as Miss Anderson was not yet available. Further I do not accept that use of Crossroads Care rates or BNA rates duly discounted are too high a valuation for services such as those rendered by the relatives in this case. Each case depends on its own facts, and I am satisfied in the present case that the pursuer's injuries and their effects were such that the services which she required merit the valuation suggested by Mr. Talbott.
[79]Accordingly I accept Mr. Talbott's valuation of the necessary services rendered during the period 11 October 1996 to May 1998, all as detailed in his reports numbers 6/27, 6/34, and 6/45 of process. Bearing in mind the 25% reduction necessary to reflect the absence of tax and National Insurance contributions, I award damages in respect of past necessary services for the period 11 October 1996 to May 1998 as follows:
| Period | at Crossroads Care rates | |
| 11.10.96 - 31.10.96 (No 6/45 of process) | £2,312 | |
| 31.10.96 - 24.1.97 (No 6/45 of process) | £5,441 | |
| 24.1.97 - 31.3.97 (No 6/27 of process) | £2,264 | |
| 1.4.97 - 31.8.97 (No 6/27 of process) | £7,250 | |
| 1.9.97 - 31.3.98 (No 6/27 of process) | £10,024 | |
| 1.4.98 - 31.5.98 (No 6/34 of process) | £2,982 | |
| | | £30,273 |
| Less 25% reflecting absence of tax, NIC | | £ 7,568 |
| | | £22,705 |
[80]Pursuer in her own flat: I accept as reasonable Mr. Talbott's estimate of the hours of care required by the pursuer once established in her own flat, because the term "care" in the pursuer's case covers a myriad of tasks, some small, some large, some of which can prove time-consuming (for example, counselling an anxious or panicky pursuer on the telephone) and some of which could be difficult to provide unless someone were physically present in the flat. I accept as necessary for the pursuer services such as physical assistance with cooking pots, or light bulbs; help with form-filling; help with telephoning tradesmen; supervision or a comforting presence or someone to talk to and from whom to receive sympathy and advice; someone taking time to give ideas, advice or help in initiating activities or organising tasks; and similar services.
[81]However on the evidence I consider that once the pursuer had settled down with her flatmate Miss Anderson, the level of services actually rendered by the Wallace family decreased to some extent. I am satisfied that Miss Anderson's physical presence, and her general competence and helpfulness in the flat, lessened the burden on the relatives. I estimate that Miss Anderson relieved the Wallaces of about 50 per cent of the burden of care. For the reasons already given, no damages can be awarded in respect of Miss Anderson's services; but when valuing the necessary services rendered by the Wallace family, I have to take into account the fact that the family rendered approximately one half of the 6 hours per day required in the latter part of 1998 and (in my view) in the early part of 1999, and one half of the 4 hours per day required from about April 1999 onwards.
[82]In relation to the BNA rates adopted in respect of the period after the pursuer's move to an independent flat, Mr. Talbott accepted that, whenever the services were in fact rendered by a member of family and not by an agency worker, the rates should be substantially reduced to reflect that absence of tax, National Insurance contributions, and agency commission.
[83]Accordingly I value past necessary services rendered during the period following the pursuer's move to a flat in April 1998 to date (late January 2001) as follows:
| Period | Rates based on BNA rates but substantially discounted to reflect services by relatives | Amount |
| 1.6.98 - 1.4.99 (10 month period) | £14,750 p.a. (for 6 hours per day) discounted to £7,000 p.a. as services rendered by relatives: but only 3 hours per day in fact rendered by family, so annual rate of £3,500 adopted | £2,916 |
| 1.4.99 - 31.3.2000 | £10,917 p.a. (for 4 hours per day) discounted to £5,000 p.a. as services rendered by relatives: but only 2 hours per day in fact rendered by family, so annual rate of £2,500 adopted | £2,500 |
| 1.4.2000 - late January 2001 | £11,460 p.a. (for 4 hours per day) discounted to £6,000 p.a. as services rendered by relatives: but only 2 hours per day in fact rendered by family, so annual rate of £3,000 adopted | £2,439 |
| | | £7,855 |
[84]Total damages in respect of necessary services rendered to date are accordingly £22,705 representing the period before the pursuer's move to her own flat, and £7, 855 representing the period after her move, bring out a total of £30,560. I apportion these damages as follows: 80% to Mrs. Wallace; 10% to Mr. Wallace; and 10% to Gill Wallace.
[85]Past expenses incurred in connection with necessary services rendered amount to £1,070, representing £1,005 and £65, all as set out in document number 6/23 of process, together with £181.50 paid to Gayle Watson.
[86]Future services: family, and companion-helper: Counsel for the pursuer submitted that it was likely that the Wallace family would continue to provide most of the necessary services which the pursuer would require over the next few years. The issue of paid assistance was most likely to arise when Miss Anderson moved out of the flat. Paid assistance rather than family services became increasingly likely in future years as the parents and sister grew older. Both Dr. Johnson and Mr. Talbott strongly recommended that a companion-enabler should be employed to improve the pursuer's quality of life. It was submitted that the correct approach was to assume one hour per day family help and three hours per day paid assistance for the rest of the pursuer's life. The multiplicand should be £10,505, comprising two parts: £1,910 for family services (representing £2,865 or approximately one quarter of the BNA gross annual rate of £11,460, adjusted to reflect absence of tax, National Insurance contributions, and agency commission) and £8,595 for paid assistance (representing approximately three quarters of the BNA annual rate of £11,640). Counsel invited me to adopt a multiplier of 27.59, derived from Table 12 of the Ogden Tables (multipliers for pecuniary loss for life: females). Future necessary services in terms of section 8 of the Administration of Justice Act 1982 would therefore total £52,697. Future paid care would be £237,136 together with an additional sum of £10,760 representing expenses of £7.50 per week which would be likely to have to be paid to the person appointed, bringing out a total for paid care of £247,896.
[87]Counsel for the defender submitted that the evidence had not established the need for assistance amounting to four hours per day. As long as the pursuer had a flatmate, it was difficult to see how a paid helper would fit in. In any event, the figure of £11,460 per annum quoted by Mr. Talbott was too high. If services were provided by family members, the annual value was much less, possibly about £6,000. Even if services were to be provided by someone paid for their services, that person could be obtained by direct advertisement, thus avoiding substantial agency commission, which might on the evidence be as high as 30%. The annual figure would thus be reduced to £8,000. On one view, direct advertising was a better option for the pursuer, as it was more likely to provide consistency of personnel and allow a rapport to develop between the helper and the pursuer. In any event, there was no evidence that the pursuer would accept the services of a paid helper. Mr. Talbott agreed that there was a fairly common perception that having a paid assistance carried a stigma. If the pursuer were to be resentful about paid helpers, there was no evidence illustrating how the concept was to be explained in such a way as to make it acceptable to her. That important question had not been explored with the pursuer, her parents, her sister, or her flatmate. All the evidence suggested that the pursuer would not accept such a person, and that she would continue to confide in her mother and to find in her the necessary support that she required. Mrs. Wallace was aged 50. Her services could be valued at about £1,000 per year. It was not appropriate to use Table 12 of the Ogden Tables, bearing in mind the criticisms made of Tables 11 to 20 in the Appendix C to the Tables (Comments by the Association of British Insurers). Table 2 was the appropriate Table, and the multiplier should be selected, not by considering the pursuer's age, but by considering Mrs. Wallace's age for which Table 2 gave a multiplier of 19.48. Thus a lump sum of £20,000 would be appropriate in respect of future services.
[88]I am satisfied on the evidence that (1) the pursuer will continue to require significant services which go beyond any normal contact or support which might be expected between an adult woman and her parents or other relative. (2) Miss Anderson currently provides 50% of the help which the pursuer needs; the Wallace family provide the other 50%. (3) Mr. Talbott's estimates of the hours of assistance required by the pursuer are reasonable. I do not envisage the services being rendered rigidly each day for four hours: rather it is a method of expressing the overall time required. For example, it may be that Mr. and Mrs. Wallace take the pursuer back to their home one weekend when she feels particularly low, or there might be a half-day of services one day, followed by twenty minutes the next day. (4) It cannot be assumed that Miss Anderson or an equivalent will be a permanent feature in the pursuer's household. It is likely that Miss Anderson will move out. It may not be easy to find another person willing to share a flat with someone with the pursuer's problems, particularly when the pursuer is older and perhaps more set in her ways. (6) If no replacement flatmate can be found, it is likely that some paid services will have to be obtained. On the basis of past performance, the Wallace family will be sufficiently adept and ingenious to arrange something which will be acceptable to the pursuer. (7) There is no justification for restricting the pursuer or others acting on her behalf to obtaining paid assistance by means of direct advertising. Someone in the pursuer's position should have the option of applying to an established and reputable agency when seeking paid help. (8) There may come a time when the Wallace family, particularly Mr. and Mrs. Wallace, as they grow older, become unwilling or unable to provide necessary services for the pursuer.
[89]I am not however satisfied on the evidence that a paid helper would necessarily incur additional expenses of £7.50 per week, and I make no award in that regard.
[90]Accordingly I assess damages for future services and paid assistance in three broad periods:
(1) The period during which Miss Anderson or an equivalent unpaid flatmate continues to provide essential assistance and a physical presence in the flat. The family nevertheless continue to provide necessary services at a rate of 2 hours per day or 14 hours per week. The multiplicand for the family's necessary services would be about £3,000 per annum, being one half of £6,000.
(2) The period after Miss Anderson or an equivalent person ceases to be the pursuer's flat-mate. In that event, paid assistance is likely to have to be obtained. The Wallace family nevertheless continue to provide 50% of the necessary services.
(3) A final period when family care is minimal or has ceased altogether. The pursuer would in my view require paid assistance of 4 hours per day.
[91]In relation to the multiplier, I do not accept the defender's counsel's contention that Table 2 is the appropriate Table. As indicated above, I agree with Lord Reed in Wilson v. Pyeroy Ltd. cit. sup. that Tables 11 to 20 should be applied in preference to Tables 1 to10. Accordingly Table 12 is the appropriate source for the multiplier. Nor do I accept the defender's counsel's contention that the correct approach is to base the multiplier upon Mrs. Wallace's age. It is the pursuer who will continue to need services, for the rest of her life, and it is the pursuer's age which matters. Accordingly I agree with counsel for the pursuer that the correct multiplier to apply is 27.59.
[92]Future necessary services in terms of section 8 of the Administration of Justice Act 1982: In the result, I award damages in respect of future necessary services as follows:
| Period | Rates based on BNA rates but substantially discounted to reflect services by relatives | Amount |
| First 5 years of multiplier: family and unpaid flatmate continuing to provide services | £11,460 p.a. (for 4 hours per day) discounted to £6,000 p.a. as services rendered by relatives: but only 2 hours per day of family services, so annual rate of £3,000 adopted | £15,000 |
| 17.59 years of multiplier: family continuing to provide services, assisted by paid help | £11,460 p.a. (for 4 hours per day) discounted to £6,000 p.a. as services rendered by relatives: but only 2 hours per day of family services, so annual rate of £3,000 adopted | £52,770 |
| Final 5 years of multiplier: family no longer able or willing to provide services | Paid help only | Nil |
| | | £67,770 |
[93]Future paid assistance: I award damages in respect of future paid assistance as follows:
| Period | BNA rates | Amount |
| First 5 years of multiplier: family and unpaid flatmate continuing to provide services | | Nil |
| 17.59 years of multiplier: family continuing to provide services, assisted by paid help | £11,460 p.a. (for 4 hours per day): but only 2 hours per day of paid care, so annual rate of £5,730 adopted | £100,790 |
| Final 5 years of multiplier: family no longer able or willing to provide services: thus paid help of 4 hours per day | £11,460 p.a. | £ 57,300 |
| | | £158,090 |
[94]Thus I award damages of £67,770 in respect of future necessary services in terms of the Administration of Justice Act. I award damages of £158,090 in respect of future paid care.
[95]I apportion the damages for necessary services, past and future, as follows: 80% to Mrs. Wallace; 10% to Mr. Wallace; and 10% to Gill Wallace.
Therapies
[96]Personal trainer: I shall award damages in respect of the past cost of the personal trainer (from commencement in about December 1999 to date) of £50 per week, namely £2,600. In relation to future costs, counsel for the pursuer invited me to adopt a rate of £75 per week, representing either three sessions at £25 per session, or approximately two sessions at £35 per session. A moderate multiplier of ten was suggested to reflect the fact that the pursuer might not always continue with training in the gym, bringing out a total of £39,000. The defender's counsel submitted that the pursuer would not continue indefinitely with a personal trainer. In any event, had the accident not occurred, the pursuer would have spent considerable sums on fitness and sports such as skiing. A broad approach should be adopted, and a lump sum of £5,000 awarded.
[97]In my view, the pursuer's visit to the gym and her contact with her personal trainer are primarily therapeutic, whereas pre-accident activities such as skiing were primarily recreational although incidentally resulting in greater fitness. Whether she continues at the Next Generation sports centre, or whether she takes up some other form of exercise or therapy involving a personal trainer, I am satisfied that damages under this head should be granted, and should be awarded on the basis of a multiplier and multiplicand. I consider that an appropriate multiplicand would be £70 per week (or £3,640 per year), and adopting the suggested multiplier of ten, I shall award £36,400 under this head.
[98]Clinical psychologist: In relation to treatment to date, I shall award damages reflecting the cost of the two sessions already undergone, namely £124. In relation to the future, the pursuer's counsel submitted that it would be reasonable to assume two sessions per annum, at a cost of £62 per session, and to apply a multiplier of 12, bringing out a total of £1,488. The defender's counsel contended that it was not clear how many further sessions the pursuer would undergo. Allowance should be made for a further ten sessions only (£620).
[99]In my view, the pursuer will continue to be vulnerable to depression, frustration, and feelings of despair and hopelessness. It is likely that she will require the services of a psychologist over the years. I consider that this aspect of the claim is best valued by awarding 12 years at £124 per year totalling £1,488.
Total damages and recovery of benefits
[100]The relevant period in terms of section 3 of the Social Security (Recovery of Benefits) Act 1997 is the five year period ending on 11 October 2001. Damages affected by the 1997 Act are damages for loss of earnings, loss of mobility, and cost of care (but not necessary services as defined in section 8 of the Administration of Justice Act 1982: Duffy v. Lanarkshire Health Board, 1999 S.L.T. 906; 1998 S.C.L.R.1142; McManus's Exrx. v. Babcock Energy Ltd., 1999 S.C. 569; 2000 S.L.T. 569).
[101]I shall award damages as follows:
| Solatium (one third to past) | | £ 95,000 |
| Past loss of earnings | | Nil |
| Future loss of earnings - to 11 Oct. 2001
- subsequent to 11 Oct. 2001
| | £233,205 |
| Loss of pension rights (agreed) | | £ 40,000 |
| Section 8: necessary services: past (to late-January 2001) Related expenses | £30,560 £ 1,070 £ 181 | £ 31,811 |
| Necessary services: future | | £ 67,770 |
| Future paid assistance | | £158,090 |
| Personal trainer: past | | £ 2,600 |
| Personal trainer: future | | £ 36,400 |
| Clinical psychologist: past | | £ 124 |
| Clinical psychologist: future | | £ 1,488 |
| TOTAL | | £666,488 |
[102]The case will be put out By Order to enable parties to address me on inter alia interest, the up-to-date figure for which decree should be granted, any specification required in terms of s.15 of the Social Security (Recovery of Benefits) Act 1997, and finally, any motions relating to witnesses and expenses.