BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLelland (AP) & Anor v Greater Glasgow Health Board [1998] ScotCS 12 (23 September 1998)
URL: http://www.bailii.org/scot/cases/ScotCS/1998/12.html
Cite as: 1999 SC 305, [1998] ScotCS 12, 1998 SCLR 1081, 1999 SLT 543

[New search] [Context] [Printable version] [Help]


 

OPINION OF LORD MACFADYEN

in the cause

MARGARET ANNE McLELLAND (A.P.) and ANOTHER

Pursuers;

against

GREATER GLASGOW HEALTH BOARD

Defenders:

 

________________

 

 

23 September 1998

Introduction

The first and second pursuers are respectively the mother and the father of Gary McLelland ("Gary"), who was born on 5 September 1991. Gary is affected by Down's Syndrome. The pursuers aver that members of the staff of the Glasgow Royal Maternity Hospital who were responsible for the first pursuer's medical care during her pregnancy, and for whom the defenders are vicariously liable, negligently failed to diagnose Gary's condition and advise the pursuers of it at the appropriate stage of the pregnancy. They aver further that had the first pursuer been advised that the expected baby would be affected by Down's Syndrome, she would have had the pregnancy terminated. They claim damages in respect of the loss, injury and damage which they have suffered as a result of the negligence for which the defenders are responsible.

There are three conclusions. The first is in respect of loss allegedly suffered by the first pursuer, the second is in respect of loss allegedly suffered by the second pursuer, and the third is in respect of loss allegedly suffered by the pursuers jointly. At the commencement of the proof, the sums sued for were (1) £50,000, (2) £20,000 and (3) £250,000, with interest in each case at 8% a year from 5 September 1991 until payment. At that stage on the unopposed motion of the pursuers the sum sued for in the third conclusion was increased by amendment to £500,000. Later, in the course of counsel's submissions at the continued diet of proof, a further motion was made to amend the sums sued for in the first and third conclusions, by increasing them to £125,000 and £720,000 respectively. That motion too was unopposed, and was granted.

The defenders have admitted negligence. Paragraph 1 of the Joint Minute of Admissions (No. 22 of process) is in the following terms:

"For the purposes of this action only and without prejudice to their rights and pleas with regard to quantum of damages the defenders admit liability to pay damages to the pursuers for any loss, injury and damage sustained by them as a result of the defenders' negligence referred to on record; and the amount of any damages payable by the defenders to the pursuers will be 95% of the sums assessed as payable by the Court."

The proof which I heard was accordingly concerned with identification and quantification of the recoverable losses which the pursuers have suffered and will suffer as a result of that negligence.

It is thus unnecessary for me to set out in much detail the circumstances relating to the merits of the action. A brief summary will, however, serve to set the context in which the disputed issues as to damages arise.

The first pursuer became pregnant in January 1991. It was her first pregnancy. She had a particular concern that there was a risk that the expected child might be affected by Down's Syndrome. That apprehension arose from her family medical history. The first pursuer has a brother, Ian, who is affected by Down's Syndrome. At the date of the proof he was twenty nine years of age. Following his birth, the pursuer and other female members of the family were tested for a genetic abnormality, translocation of chromosome 21, which carries an increased risk of giving birth to a child affected by Down's Syndrome. The pursuer was at that time found to carry the abnormality. When she consulted her general practitioner in connection with her pregnancy the first pursuer drew to his attention the relevant history, and he in turn made reference to it in his letter of referral when he sent her to the ante-natal clinic at the Royal Maternity Hospital. When seen at the ante-natal clinic, the first pursuer herself referred to her brother's condition, to the fact that she had undergone testing and to the fact that there was a high risk that any child to which she gave birth would be affected by Down's Syndrome. In the event, the first pursuer was subjected only to a test (alphafetaprotein or AFP) which is merely a screening test with a detection rate of 30-35%, and is not diagnostic of Down's Syndrome in the foetus. That test was negative, but the pursuer was not advised that it did not exclude the possibility that the child would be affected by Down's Syndrome. A further test (amniocentesis) which would have diagnosed the presence of Down's Syndrome was not administered. On Gary's birth, it was found that he did indeed suffer from translocation of chromosome 21 and was affected by Down's Syndrome. The case of fault made against the staff of the Royal Maternity Hospital is in brief that, having been informed of the relevant history, they should have advised the first pursuer that the AFP test was not diagnostic, should have referred her for genetic advice, should have established her chromosomal make-up, and should have arranged for her to undergo amniocentesis (or an alternative diagnostic test).

Both pursuers gave clear evidence that, had it been detected at the appropriate stage of the pregnancy that the foetus was affected by Down's Syndrome, their decision would have been to terminate the pregnancy. They explained that, because of the family history and the known fact that the first pursuer carried the genetic abnormality, they had discussed the matter before the first pursuer became pregnant. The first pursuer, in particular, having been brought up in family with her brother Ian, was fully alive to all that would be involved in having a Down's Syndrome child. They had made a definite decision as to the course they would take if tests showed that the child would be so affected, namely the termination of the pregnancy. I have no hesitation at all in accepting that evidence. Mr Hajducki did not submit that I should not do so. I therefore hold it proved that if the hospital staff had duly performed the duties incumbent on them, Gary would not have been born.

The pursuers' claims for damages were advanced under a number of heads, namely (1) solatium for each pursuer; (2) layette, or the expenses incurred by the pursuers in equipping themselves for Gary's birth; (3) the cost of maintenance of Gary, divided into three sub-heads covering the periods (a) from birth to 30 April 1998, (b) from 1 May 1998 until Gary's nineteenth birthday and (c) from then until he reached the age of forty; (4) costs incurred in caring for Gary, divided in the same way; (5) a combined head covering maintenance and care for the remainder of Gary's life after the age of forty; (6) wage loss suffered by the first pursuer, divided between the past and the future; along with interest on certain of those heads of damages.

It will in due course be necessary to consider each of these heads in turn. In presenting the submissions on behalf of the pursuers, Miss Dorrian, in some uncertainty as to how broadly the defenders' submissions would be expressed, began with a review of cases in which a claim for damages arose in consequence of the birth of a child, including both those cases in which the child was affected by some form of handicap and those in which the child was born in normal health. It is sufficient for the present simply to record the cases to which she made reference. The Scottish cases cited were Allan v Greater Glasgow Health Board (1993) 17 BMLR 135, McFarlane v Tayside Health Board 1997 SLT 211 (OH) and 1998 SLT 307 (IH), and Anderson v Forth Valley Health Board 1998 SLT 588, 1998 Rep LR 3. The English cases cited were Thake v Maurice [1986] 1 QB 644, Emeh v Kensington and Chelsea and Westminster Area Health Authority [1985] 1 QB 1012, Allen v Bloomsbury Health Authority [1993] 1 All ER 651, Walkin v South Manchester Health Authority [1995] 1 WLR 1543, Salih v Enfield Health Authority [1990] 1 Med LR (first instance) and [1991] 3 All ER 400 (Court of Appeal), and Fish v Wilcox [1994] 5 Med LR 230.

In the event, the Inner House decision in McFarlane was issued in the interval between the original diet of proof in the present case, when Miss Dorrian began her submissions, and the continued diet, at which she completed her submissions and Mr Hajducki made his for the defenders. Although that case was concerned with the birth of a healthy child following negligent advice as to the effect of a vasectomy, the Inner House decision narrowed the scope for argument in the present case.

(1) Solatium

(a) First Pursuer

On the first pursuer's behalf a claim was advanced for solatium in respect of the effects on her of the defenders' negligence. Three separate categories of effect were identified. The first was the pain and suffering which she experienced as a result of the continuation of the pregnancy beyond the date at which it would have been terminated if the presence of the genetic defect had been detected, and as a result of the birth, which took place by caesarean section. The second was her shock and distress on the discovery, very shortly after Gary's birth, that contrary to the expectation which the defenders' negligence had led her to entertain Gary was in fact affected by Down's Syndrome. The third was the longer term additional mental, physical and emotional stress and wear and tear involved in bringing up a Down's Syndrome child, over and above that involved in bringing up a healthy child.

So far as the first of these elements is concerned, it was accepted on the first pursuer's behalf that it was necessary to bear in mind that, if the defenders had duly performed their duties, she would have undergone amniocentesis which she did not in the event undergo and, more significantly, would have undergone, albeit willingly, the termination of the pregnancy.

The evidence relating to the second element came from both pursuers. The first pursuer herself did not immediately notice that Gary was affected by Down's Syndrome. That was drawn to her attention about an hour after the birth by the anaesthetist in attendance. The pursuer described herself as devastated by the discovery. She had, after the AFP test and having heard nothing adverse from the hospital, been quite relaxed about the pregnancy. It was therefore a great shock to discover that the very eventuality which she had sought to guard against had come about.

In relation to the third element there was evidence about a variety of aspects of Gary's early development, such as jaundice, difficulty with feeding, the diagnosis of and an operation to correct an obstruction of the duodenal web, broken sleep, an operation on his tonsils and adenoids to relieve sleep apnoea, and operations on a tear duct and to correct undescended testes, all of which increased the burden on the first pursuer of caring for him. Some, but not all, of these complications were directly related to the fact that he was affected by Down's Syndrome. As a result of his handicap generally, the first pursuer required, and still requires, to spend much more time and effort in caring for him than would have been required with a healthy child. Once he reached the stage of receiving physiotherapy, speech therapy and the services of a home teacher, the first pursuer had to spend time reinforcing that work by practising with him his exercises and what he was being taught. In 1997 the first pursuer suffered and received treatment for depression, which she attributed mainly to exhaustion resulting from coping constantly with Gary's needs. The increased burden on the first pursuer will continue so long as Gary remains in her care, although the gravity of the burden will in some respects reduce as he grows older.

In attempting to quantify the first pursuer's claim for solatium, Miss Dorrian pointed out that most of the reported cases related to the birth of a healthy child. The awards ranged from £3000 to £18,000. In Emeh, which, although a failed sterilisation case, related to the birth of a child with congenital abnormalities, the total award in respect of pain, suffering and loss of amenities was £13,000. Miss Dorrian suggested £15,000 as the appropriate award in the present case.

Mr Hajducki accepted that in light of the Inner House decision in McFarlane the first pursuer was entitled to recover solatium. He made the point that the pregnancy was a normal one unaffected by any unusual physical or mental factors (except the caesarean delivery). He identified, as a countervailing factor in assessing the harm done to the first pursuer, the fact that in the event she did not undergo (a) amniocentesis or (b) termination of the pregnancy. As I have already recorded, that point is not disputed. He submitted, too, that since the pregnancy had been intended, the case was different from cases which involved an unwanted pregnancy following a failed sterilisation operation. He submitted that if the pregnancy had been terminated, the evidence showed that the pursuers would probably have gone on to have two further children (instead of the one further child - their daughter Lauren - they have in the event had). Thus, the pregnancy which resulted in the birth of Gary should not be regarded as an additional pregnancy.

Mr Hajducki accepted that the first pursuer was greatly distressed to discover that Gary was affected by Down's Syndrome. He submitted, however, that that distress was what any parent would suffer on the birth of a handicapped child. It was not, he submitted, something which the law regarded as compensable. The principle, he said, was that no solatium was awarded for mere emotional distress. That point was made primarily in relation to the second pursuer's claim for solatium, and I shall record it more fully in that context. In relation to the first pursuer, it was relied upon as a point going merely to quantum. Mr Hajducki accepted that the first pursuer's depression would fall to be taken into account in an award of solatium, if it were established that it resulted from coping with Gary, but criticised the evidence as to the cause of the depression as vague.

So far as quantum was concerned, Mr Hajducki submitted that the English cases were not very consistent. In Allen v Bloomsbury Health Authority, a failed sterilisation case in which the plaintiff was apprehensive during the pregnancy that the child might be handicapped, and in the event the child suffered from temper tantrums, a speech defect and slight dyslexia, £2500 was awarded in respect of pain, suffering and loss of amenities (but I note that Brooke J assessed general damages for pain suffering and loss of amenities up to the birth at £1250, and held that nothing should be awarded in respect of the fact that the child had these disabilities, and in fact awarded £2500 because it was the sum which the defendants conceded was proper). In Emeh, as already noted, the award was £13,000. In Salih, where the child suffered from permanent limitation to his hearing and sight as a result of rubella syndrome, the mother was awarded £5000 as general damages for the physical effect on her of the continuing emotional distress. (As I read Butler Sloss LJ's judgment, the extra £1500 awarded in the Court of Appeal was in respect of a separate head of damages.) In the result Mr Hajducki submitted that if all the elements contended for by Miss Dorrian were to be included in the award, the appropriate amount would be of the order of £7500. If only the continued pregnancy and birth were to reflected in the award, £3000 to £4000 would be appropriate.

In my opinion it is clear that the first pursuer is entitled to have reflected in an award of solatium the physical consequences to her of continuing with the pregnancy beyond the date when, if the defenders had performed their duties, it would have been terminated, including the pain and suffering of undergoing the caesarean delivery. Such a claim (there in respect of the whole pregnancy) was held to be relevant in McFarlane, and at least so far as this aspect of the claim is concerned, there is in my opinion no material distinction between that type of case and this, except that here the claim relates only to the part of the pregnancy subsequent to the date at which it would otherwise have been terminated. I accept, as did both parties' counsel, that allowance must be made for the fact that the first pursuer did not in the event undergo the amniocentesis or the termination of pregnancy which she would have undergone if the defenders had performed their duties. I do not accept that this aspect of the claim would be elided if it were proved that the pursuers would, if the pregnancy had been terminated, have had two further children. I shall deal with this aspect of the defenders' submissions in more detail in the context of the claim for patrimonial loss, and at this stage refer to the reasoning which I shall set out there.

I also reject the defenders' submission that no allowance should be made, in computing the award of solatium to be made in favour of the first pursuer, for the shock and distress of the discovery of Gary's handicap, or for the added stress of bringing up a handicapped child. I shall set out my reasons for that conclusion in the context of the second pursuer's claim for solatium. I hold that, on the balance of probabilities, the first pursuer's episode of depression was caused by the strain of caring for Gary.

So far as quantum is concerned, I do not find much assistance in the decided cases. I must simply make a judgment as to the sum which would properly compensate the first pursuer for the three elements of loss, injury and damage relied on by her in advancing her claim for solatium. In my judgment the sum proposed by Miss Dorrian is fair and reasonable in all the circumstances. I accordingly assess this aspect of the first pursuer's claim at £15,000.

(b) Second Pursuer

The second pursuer's claim for solatium differs from the first pursuer's in that he has no claim in respect of the physical effects of the continuing pregnancy and the birth. His claim is confined to the matters which form the second and third aspects of the first pursuer's claim. He shared the first pursuer's shock and distress at the discovery shortly after the birth that Gary was affected by Down's Syndrome. Like the first pursuer, he described himself in evidence as having been devastated by the discovery. He had the particularly difficult task of breaking the news to Gary's grandparents, having, before the discovery, told them that he was normal and healthy. He too is affected by the additional stress and wear and tear of bringing up a Down's Syndrome child, albeit his exposure to that stress has been and will be less constant than the first pursuer's, since he works full-time as an HGV driver.

Miss Dorrian accepted that the second pursuer's claim for solatium was unprecedented. In failed sterilisation cases, the point does not arise. In neither Fish nor Salih was such a claim made. In Anderson, however, such a claim was held to be relevant. So far as quantum was concerned, she suggested an award of £10,000.

Mr Hajducki submitted that the law did not recognise emotional distress as giving rise to a claim for solatium. He referred to Wallace v Kennedy (1908) 16 SLT 485, in which Lord Johnston said:

"I agree that you cannot recover for mere fright. But because you cannot recover for mere fright, it does not follow that you may not recover for the consequences of mere fright. To found a claim for damages for personal injury there must be physical injury of some kind. But actual impact is not necessary to produce physical injury. It may equally be produced by nervous shock producing bodily injury."

In Simpson v Imperial Chemical Industries Ltd 1983 SLT 601, Lord Justice Clerk Wheatley said (at 605):

"It is not enough for a person to say that he received a shock or a fright from an explosion which caused normal emotional reaction with no lasting effect, and to claim on account of this 'shock' alone. He can only claim damages if he proves that he suffered some physical, mental or nervous injury",

and (at 606):

"As a matter of principle, and indeed of common sense, a normal emotional reaction not resulting in any illness, injury or disability is not enough."

In McLoughlin v O'Brien [1983] AC 410, Lord Bridge of Harwich said:

"The first hurdle which each plaintiff claiming damages of the kind in question [i.e. for nervous shock following news of an accident to members of her immediate family, which she had not witnessed] must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness."

Neither the immediate shock and distress suffered by the pursuers on discovery of Gary's condition, nor the long term stress involved in bringing him up, could be regarded as personal injury. They therefore did not satisfy the test variously described in these dicta. The second pursuer's claim for solatium must therefore fail.

Mr Hajducki submitted that if I were against him on his principal submission, the appropriate award would be of the order of £2000.

In response to these submissions, Miss Dorrian sought to distinguish this case from those (such as Wallace and Simpson) in which the pursuer suffered a fright causing only a normal transient emotional reaction. Further, cases such as McLoughlin were concerned with whether a duty of care existed, whereas in the present case the defenders, by their admission of liability, conceded that they owed both pursuers a duty of care, and were arguing merely that the second pursuer suffered no loss which could be reflected in an award of solatium. She cited Fleming v Strathclyde Regional Council 1992 SLT 161, in which the pursuer claimed damages for loss occasioned by flooding of her house allegedly caused by negligence on the part of the defenders. It was averred that as a result of being unable to occupy her house for several days, she suffered distress and inconvenience. Lord Cullen held that these averments would relevantly found a claim for solatium, but that the phrase "personal injuries" in section 17 of the Prescription and Limitation (Scotland) Act 1973 was wide enough to cover various forms of personal suffering not involving a medical condition, including distress and inconvenience, and the claim was therefore time barred. On that basis, Miss Dorrian argued, the second pursuer's claim for solatium should be regarded as one for personal injuries. She also cited Curran v Docherty 1995 SLT 716, in which as a result of her solicitor's negligence a divorced woman suffered anxiety, worry and distress over several years about the possibility of losing occupation of the former matrimonial home, and was awarded damages.

I take as the appropriate starting point in deciding this issue the fact that the defenders have admitted that they owed a duty of care to both pursuers, that they acted in breach of that duty, and that they are therefore liable in damages for any loss, injury and damage suffered by the pursuers or either of them as a result. In McFarlane, reference was made to what Lord Neaves said in Auld v Shairp (1874) 2 R 191 at 199:

"Money is the universal solvent; everything can be turned into money that is either a gain or a loss; money is asked and damages are due for reparation of every possible suffering and injury."

There are no doubt certain categories of case in which liability depends on the pursuer having suffered personal injury. But, in my view, once liability is conceded the question comes to be whether the heads of damage claimed reflect material prejudice suffered by the pursuer to an interest which is recognised by law. I take that test from the opinions of Lord Justice Clerk Cullen and Lord McCluskey in McFarlane at 310F and 313K respectively. Lord McCluskey went on to say (at 314L):

"I prefer to use the word "damnum", which lawyers commonly use to describe some material prejudice to an interest which the law recognises as a legal interest. It is properly used in Scots law to include an event or happening causing loss that does not have the character of physical injury or damage. Such loss flowing from the prejudice may be measurable directly in money terms ...[or] ... may bear no relationship whatsoever to money, but nevertheless a money award may be made to mark the prejudice and afford such redress as the law can for a loss which cannot be remedied by the restoration of what has been lost."

In McFarlane the court did not require to address the question whether a claim such as the second pursuer's claim for solatium was sound, because the father in that case made no claim for solatium. I am of opinion, however, that the second pursuer's claim is sound. The pursuers relied on the defenders' staff to exercise reasonable care to provide them with the information, and the first pursuer with the treatment, necessary to secure them against the eventuality of the birth of a child affected by Down's Syndrome. It seems to me to be clear that it was reasonably foreseeable to the staff concerned that if they failed in their duty of care the very event which the pursuers sought to guard themselves against was liable to occur, and that if it did occur the harmful effects on both pursuers would include (a) severe shock and distress on discovery that the child was affected by Down's Syndrome and (b) in the longer term increased stress and wear and tear in bringing up and caring for the child. If damages were not recoverable in respect of these harmful effects, the law would in my opinion be failing to achieve its recognised aim of putting the parties who have suffered as a result of a wrong as nearly as can be achieved by money compensation in the position in which they would have been if the wrong had not been committed (Livingstone v Rawyards Coal Co. (1880) 7 R (HL) 1, per Lord Blackburn at 7). It seems to me that the validity of the second pursuer's claim is at least as clear as that of the type of claim for solatium for distress which has been recognised as relevant in such cases as Watson v Swift & Co's JF 1986 SLT 217 and Fleming. I am therefore of opinion that the second pursuer is entitled to an award of solatium in respect of the matters focused in his claim. I do not regard the ratio of the Simpson type of case, or the ratio of the McLoughlin type of case, as compelling a different result.

So far as quantum is concerned, I am of opinion that, bearing in mind that the whole continuing pregnancy and childbirth aspect of the first pursuer's claim is absent from the second pursuer's, and that his exposure to stress and wear and tear, while by no means negligible, is less than the first pursuer's, the sum suggested by Miss Dorrian is too high. Mr Hajducki's suggestion is in my view too low. I regard £5000 as the reasonable figure at which to assess the second pursuer's solatium claim.

(2) Layette

The first pursuer spoke to the cost of certain items of equipment, viz. a baby buggy (£150), a car baby seat (£35), a cot (£150) and a high chair (about £50). These items total £385. She also mentioned baby clothes, feeding equipment and sterilising equipment, but was unable to put a cost to them. There must have been other items. Miss Dorrian submitted that a reasonable award would be £1000. In Allan v Greater Glasgow Health Board £950 was awarded.

Mr Hajducki submitted that the expense on layette would have been incurred in any event on the birth of a second child. That was, I think, an aspect of his general submission about the effect of the brief evidence that the pursuers would probably have had two other children if the pregnancy had been terminated. That will be more fully considered in the context of the more substantial patrimonial loss claims. For the reasons which I shall explain at that stage, I do not regard that as a sound answer to this head of loss. If the submission was intended also to suggest that what was bought to meet Gary's needs would have been required in any event to meet Lauren's, I do not consider that the point was sufficiently developed in evidence. There was, however, in my view some force in Mr Hajducki's subordinate submission that the pursuers' evidence did not justify an award of as much as £1000.

Looking at the matter broadly, I consider it reasonable to award the sum of £750 under this head.

(3) Maintenance of Gary

It is convenient, before turning to the detailed calculations put forward on the pursuers' behalf, to deal with a number of general points raised in the course of submissions. It is to be noted at the outset that under this head the pursuers claim the basic cost of Gary's maintenance, on the basis that if the defenders had exercised reasonable care, the pregnancy would have been terminated, Gary would not have been born and that cost would not have been incurred. Under this head are also included certain respects in which the cost of Gary's maintenance is increased by his disability. The cost of providing the additional care which he requires because of his disability is claimed separately under the heading of care costs.

In the first place, Miss Dorrian, pointing out that the claim which she put forward extended over the whole of Gary's life to the age of forty and beyond, submitted that the claim arose out of the natural bond between parents and child and was not limited by the duration of the parents' legal obligation to aliment the child. In support of that proposition she referred to Anderson, where Lord Nimmo Smith said (1998 SLT at 606B), albeit in the context of a claim for care costs rather than basic maintenance costs:

"Nor do I think that care costs should be limited by reference to the pursuers' obligation to aliment their children or by the cessation of that obligation if and when each of them attains the age of majority. The claim for care costs arises, as I see it, from the natural bond between parent and child, an aspect of which is the parents' desire to care for the child. Subject to questions of reasonableness of the consequent expenditure, which must depend on the circumstances, I can see no reason at this stage to suppose that it was not within the parties' contemplation that if the children were born suffering from disabilities the natural response of the pursuers would be to make reasonable provision for their care throughout the children's lives."

I agree with that approach, and am of opinion that it is as applicable to the claim for basic maintenance (which was not made in Anderson) as it was to the claim for care costs which Lord Nimmo Smith was addressing. It seems to me that the questions to be considered are (i) whether the expenditure has been or is likely to be incurred by the pursuers, (ii) whether the incurring of that expenditure by them ought reasonably to have been foreseen by the defenders and (iii) whether the expenditure incurred or to be incurred is reasonable. If these questions can all be answered in the affirmative, I am of opinion that the amount of the expenditure is recoverable, whether it relates to a period during which the pursuers were under a legal obligation to maintain Gary or to a period after the expiry of that obligation. The natural bond to which Lord Nimmo Smith referred seems to me to provide the answer to the question of reasonable foreseeability.

Mr Hajducki's primary submission was that the cost of basic maintenance was not recoverable at all in the circumstances of this case, because Gary was not an "additional" child. On the evidence, he submitted, the likelihood was that if the defenders had fulfilled their duty of care and the pregnancy had been terminated, the pursuers would have gone on to have two children. In the event, they have two children, Gary and Lauren. The basic maintenance costs of two children would therefore have been incurred whether the defenders had been negligent or not. It therefore could not be said that the defenders' negligence had caused the pursuers to incur child maintenance costs which they would not otherwise have incurred. The evidential basis for that submission was a brief passage in the cross-examination of the first pursuer in which she said that, looking at the matter in advance, they would have planned to have two children. She added that it was possible, but not probable, that they would have more children now. The matter was not raised at all with the second pursuer. Precedent for the submission was found in Salih. In that case the parents of a child born suffering from congenital rubella syndrome sued the health authority for negligent failure to diagnose the condition. As in the present case the evidence was that if the condition had been diagnosed, the pregnancy would have been terminated. The parents decided not to have any more children because of the difficulty and strain involved in bringing up a handicapped child, and a further unplanned pregnancy was terminated. The plaintiffs claimed inter alia the basic cost of maintenance of the child. At first instance that claim was successful. Drake J, after setting out the defendants' argument against the award, which was to the same effect as Mr Hajducki's argument in the present case, said (at 403e):

"In my judgment this argument is flawed. Had the defendants not been negligent, the plaintiffs would have willingly incurred the cost of maintaining a normal child. It was a cost they wanted to incur. But due to the negligence, they are now incurring the cost of bringing up a severely handicapped child, and they never wanted, and do not want, a handicapped child. The fact that, as loving and compassionate parents, they have love for Ali and will do everything possible to help him does not alter the fundamental fact that they did not want a handicapped child; and the cost of maintaining him is, therefore, something they never wanted. Put in a different way, the cost of bringing up a normal child would be entirely offset by the fact that the plaintiffs would be paying for something they wanted. As it is, they are paying for something they did not want."

On appeal, that decision was reversed. Butler Sloss LJ, after quoting the above passage from the judgment of Drake J, said (at 403g):

"This issue is difficult to evaluate entirely unemotionally. In a sense, the parents were forced into the decision not to have any more children whom they wanted by virtue of the birth of a child with unwanted physical handicaps. Having for prudent and humane reasons decided to devote extra attention to the needs of Ali and deprive themselves of the joys of further children, that act of selflessness is used against them to deprive them of the basic cost of the upkeep of Ali, which they would have received if they had gone ahead and completed their planned family of four healthy children. [Counsel for the defendants] conceded that if they had done so, the cost of the basic maintenance of Ali would be recoverable. On one level this argument, employed by those who are responsible for the predicament of the plaintiffs, does seem most unjust. ...

There is no authority to which our attention has been drawn which bears directly upon the issue in this appeal. [Emeh and Thake were then referred to and distinguished.] ...

Some argument was pursued before us as to whether the issue as to the cost of the upkeep of a child was a matter of causation or quantification. In my judgment it is clearly the latter. ... The question is whether the saved expenditure arising from the decision not to have more children is properly to be taken into account in that quantification process.

The general proposition in quantifying damages is to place the injured party, so far as possible in financial terms, in as good a position as he would have been in if the negligent act had not occurred, but in no better position. In considering how to apply that general proposition to the facts of this case I derive some assistance from the judgments in Cutler v Vauxhall Motors Ltd [1971] 1 QB 418, a decision on personal injuries where as a consequence of the injury sustained, the plaintiff had an operation for varicose veins which would probably have been necessary in any event at a later date. This court held that the court was not prevented from adverting to future probabilities when considering whether a plaintiff was entitled to recover financial loss already sustained by the date of trial. The plaintiff did not recover the cost of the operation. ... Some distinction has been sought to be drawn between the fact that it was the same operation in the Cutler case and that in this case it would be the strong probability of the birth of a different child. It is said that the costs incurred as a result of the birth relate to this child and cannot be equated with equivalent costs in respect of another child. I do not agree. Unless a child is looked at in isolation without reference to the rest of the family, which I do not believe is the right approach, the costs of a child have to be considered within the family unit. It is not the action of the child with which we are concerned but the action of the parents. In this case the termination of a later pregnancy points to the likelihood of further children being born to the wife and requiring financial support from the parents within the family. The fact is that the parents will now not incur the costs of further children. They have to that extent reduced their future expenditure. They are being compensated for the additional expenditure of Ali's special needs. [Counsel for the plaintiffs] argues that since this was a decision forced upon the parents the defendants ought not to be allowed to take advantage of the plaintiffs' avoidance of loss. In contract the effect of actual diminution of loss suffered may be taken into account even although there was no duty upon the plaintiff to act: see Viscount Haldane LC in British Westinghouse Electric and Manufacturing Co. Ltd v Underground Electric Railway Co of London Ltd [1912] AC 673 at 689-690. 'A wider formulation, which more readily includes tort, is that matter completely collateral and merely res inter alios acta cannot be used in mitigation of damages': see McGregor on Damages (15th edn, 1988) para. 326. The contemplated cost in this case, however, would be spent on an identical purpose, in pari materia with the costs of Ali and cannot be said to be merely collateral. The decision of the parents not to have another child and the consequential saving of likely future expenditure is, in my judgment, a relevant consideration upon which the defendants are entitled to rely and the judge was in error in not taking it into account."

Mr Hajducki pointed out that in Anderson the ratio of Salih appears to have been accepted by the pursuers. Lord Nimmo Smith recorded the pursuers' stated position thus (at 600K):

"They did intend to have a family of two children but healthy ones, whom they would have been happy to bring up. Accordingly there was no claim for the ordinary expenses of the upkeep of the boys, and only the additional costs were sought."

Mr Hajducki's submission was that I should follow the same approach in the present case. The effect was to eliminate wholly the claim for basic maintenance costs.

Miss Dorrian submitted, first, that on its own facts Salih was wrongly decided, and should not be followed. She submitted that the reasoning of Drake J was preferable to that of the Court of Appeal. It offended against the principle of restitutio in integrum to deny the pursuers recovery of the basic cost of bringing up a handicapped child, who would not have been born if the defenders had not been negligent. Even if the evidence showed that the pursuers would probably, following the termination which would have taken place in the absence of negligence, have gone on to have the same number of children as they actually have, the basic cost of maintaining a normal healthy child was not the same thing as the basic cost of maintaining a handicapped child, albeit equal in amount. Nothing could be taken from Anderson on this point, because there the pursuers chose to make no claim for basic maintenance costs. In any event, secondly, Salih was distinguishable on its facts. As is pointed out in Jackson and Powell on Professional Negligence (4th edn, 1997) at para. 6-202, there can be no general rule as to which measure of damage is correct. The decision must turn on the facts of the individual case. In Salih it was clear that, before the birth of the handicapped child the plaintiffs intended to have two further children, making a total of four, but after that birth decided not to do so, and carried that decision into effect by terminating a subsequent unplanned pregnancy. The result was that it could be said not only that if Ali had not been born another child would, but further that as a result of the birth of Ali the plaintiffs' decision to have no further children saved them the cost of a fourth child Here the evidence of the pursuers' intentions was meagre, and came from one only of the pursuers. The birth of Gary had not led them to have no more children. They went on to have Lauren. The defenders' position depended on its being accepted that, if there had been a termination instead of Gary's birth, the pursuers would have had two more children rather than one.

The well-established basic principle, reaffirmed in McFarlane, is that an award of damages should put the pursuers, as nearly as money can, in the position in which they would have been if the negligence had not taken place. If the defenders had not failed to detect that the expected child was affected by the genetic disorder, the pregnancy would have been terminated, and the pursuers would therefore not have incurred the basic cost of maintaining Gary. Prima facie, therefore, the pursuers are entitled to recover that cost from the defenders as part of their claim. If that result is to be displaced, it is for the defenders to displace it. Their basis for doing so must be sound in law and properly supported by evidence.

It is commonplace, in actions of damages for personal injuries, to find that one of the consequences of the wrongful act is that the pursuer comes to suffer from a condition or symptoms, or undergo an operation, which he would have suffered or undergone in any event, but at an earlier date than would otherwise have been the case. In such a case, the pursuer is compensated for any loss resulting from the acceleration of the condition or symptoms, but not for the condition or symptoms from the date when they would otherwise have been suffered, and receives no compensation for undergoing an operation which he would have had to undergo in any event. Similarly, in computing the loss of earnings suffered by a pursuer as a result of a wrongful injury, if it is shown that the pursuer would at some date have become unfit for work for a reason unrelated to that injury, the loss of earnings attributable to the injury will come to an end at that date. Cutler, cited by Butler Sloss LJ in Salih, is an example of that familiar feature of the computation of damages. The question comes to be whether that approach can properly be applied in cases such as Salih and the present case. That, it seems to me, depends on whether the basic cost of bringing up a handicapped child can be equated with the equivalent cost of bringing up a normal healthy child. For sake of argument, the costs may be taken to be identical in amount (although in practice that is unlikely to be the case, because the child who was not born because of the birth of the handicapped child would have been being brought up during a somewhat later period, when costs would have been likely to have increased to some extent). It is not the amount, but the nature of the expenditure, that is in issue. To couch the question in the language used by Butler Sloss LJ at 405d, is the cost of bringing up a healthy child "spent on an identical purpose, in pari materia with the costs of [the handicapped child]"? I find myself unable to accept that that question must be answered in the affirmative. Of course I accept that the extra cost of bringing up the handicapped child are dealt with elsewhere in the claim, and are recoverable. But it does not seem to me to follow from that that spending money on bringing up a handicapped child who has been born as a result of the defenders' negligence is in substance the same thing as spending money on bringing up a healthy child who would have been born at a somewhat later date if the negligent omission had not taken place. I do not adopt Drake J's formulation (at 403g) that the cost of bringing up a normal child would be entirely "offset" by the fact that the parents would be paying for something that they wanted. I do, however, prefer the result he reached to that reached by the Court of Appeal. The cost of bringing up a healthy child would have been incurred willingly by the pursuers. It would have been the cost of doing something they wished to do. The cost of bringing up Gary is something which has been forced on them by the defenders' negligence. It would in my view be wrong to deny the pursuers recovery of the latter forced unwanted expense on the ground that but for the negligence they would probably have spent a similar amount of money in willingly incurring the former expense.

I do not regard Salih as distinguishable. Certainly there was the additional feature in that case that the consequence of the birth of the handicapped child was not only that the plaintiffs did not have the "replacement" third child which they would have had if the pregnancy had been terminated, but also that they decided not to have the fourth child that they would otherwise have had. An examination of the judgements does not, however, lead me to conclude that the result would have been different if that additional feature had been absent.

Nor am I persuaded that the defenders do not have an adequate evidential basis for the submission which they make. Certainly, the evidence is meagre. But I construe the evidence of the first pursuer, whom I regarded as a truthful and candid witness, as indicating that the pursuers' intention was to have a family of two, and that it is unlikely that they will have any further children now. The matter was not raised by either counsel with the second pursuer, who plainly would have had relevant evidence to give on the matter, if asked. The absence of his evidence is not, however, in my view fatal to the defenders' position. I must proceed on the evidence I have before me, and I have no reason to doubt what the first pursuer said.

In the result, therefore, while I find Salih indistinguishable, and hold that the defenders have an adequate evidential basis for a submission based on that case, I decline to follow it. I hold that the pursuers are entitled to recover damages in respect of the expenditure which they have incurred and are likely to incur in the future on Gary's basic maintenance. I therefore turn to the computation of this aspect of the pursuers' claim.

(a) Birth to 30 April 1998

The calculations which the pursuers put forward were set out in two document, a Schedule of Damages Claimed by the Pursuers (No. 23 of process) and a Pursuers' Schedule of Maintenance and Care Costs (No. 24 of process). So far as basic maintenance costs were concerned, the calculations were based on figures derived from a document published by the National Foster Care Association (No. 16/6 of process). In paragraph 5 of the Joint Minute of Admission (No. 22 of process) the parties agree that that document:

"contains a true and accurate account of the assessment by the National Foster Care Association of the cost of maintaining a normal child from ages 0 to 18 for the period 1982 to 1997. The assessment is based on the Family Expenditure Survey and Equivalence Income Scales as recorded in the said document. It is the basis of the recommendations by the National Foster Care Association to Local Authorities of appropriate minimum Foster Care Allowances."

That document was used in Allen v Bloomsbury Health Authority as the basis for calculation of future basic maintenance costs. In that case the award for basic maintenance costs to the date of trial was based on actual costs, but Miss Dorrian submitted that, having regard to the practical impossibility of identifying accurately the actual costs incurred over a six year period, it was reasonable to use the NFCA document for that period, as well as for the future. Mr Hajducki did not dispute that submission.

For this period, parties were agreed that the basic care costs, after deduction in respect of child benefit, fell to be assessed at £16,109.

In No. 24 of process, the pursuers included certain extra maintenance costs arising from Gary's special needs. These were (i) expenditure on chemist's items at £364 a year, (ii) heating, laundry and wear and tear at £520 a year, and (iii) transport at £520 a year from September 1993 onwards. For the period, these figures produced a total of £8302. The defenders put forward more conservative figures, namely (i) £208 a year, (ii) £468 a year and (iii) £250 a year from September 1993, bringing out a total of £5661. So far as item (i) is concerned, the defenders' expert witness, Mr Talbot, accepted the pursuers' figures. The difference in relation to item (ii) is in my view de minimis. I shall proceed on an annual figure of £500. Two views were expressed on item (iii). I have no reason to prefer one to the other, and therefore follow counsel's suggestion that I split the difference. In the result I shall assess the total of these extra costs for this period in round terms at £7500.

The aggregate of the basic care costs and the extra costs for this period is therefore £23,609.

(b) 1 May 1998 to age 19

The average annual basic maintenance cost for this period after deduction of child benefit was agreed at £4127.

The dispute over the detail of the extra costs was carried over into this period. Again I accept the pursuer's figure for chemist's costs (which carried into this period for only 16 months), and assess heating, laundry etc at £500 a year, and transport costs at £390 a year. It was agreed that a lump sum of £100 should be allowed for physical aids. The pursuers also claimed the cost of annual reviews by an occupational therapist and a physiotherapist, at the cost of £47.50 and £35 a year respectively. On the basis of the evidence of Miss Cossar, the pursuers' expert witness, I accept these items as reasonable. I calculate the resultant total at £12,628 for the period, which reduces to an annual average of £1024.

The aggregate of the average annual basic maintenance cost and the average annual cost of extras is thus £5151. The pursuers contended for a multiplier of 9, whereas the defenders contended for 7. In my view the former would be appropriate in respect of the whole period in question. For the reasons discussed in the next section of this opinion, however, I have come to the conclusion that the claim for the cost of basic maintenance ceases when Gary attains the age of eighteen. I shall therefore apply a multiplier of 8. The result is a total assessment in respect of the period from 1 May 1998 to 5 September 2009 of £41,200.

(c) Age 19 to age 40

The pursuers' calculation in respect of this period was based on two years at £1634, plus nineteen years at £7275, giving an average annual figure of £6738, to which a multiplier of 8 was applied, bringing out a total of £53,902. The two years at the lower figure are the years in respect of which a claim is made under the Care Costs heading for the cost of Gary attending a residential college. The annual figures include extra maintenance costs attributable to Gary's special needs, comprising the cost of annual reviews by occupational therapist, physiotherapist, and speech and language therapist; heating, laundry etc as before; and transport as before.

In respect of this period, Mr Hajducki's submission was that there should be no award, because the basic cost of Gary's maintenance would be borne by the state in the form of benefit payable to Gary in his own right. The cost of his basic maintenance would thus cease to fall on the pursuers. Some evidence to that effect was given by Mr Talbot, but it was not very specific.

Miss Dorrian submitted, first, that it was for the defenders to prove that the state would shoulder the burden of the cost of Gary's basic maintenance as an adult, and that they had failed to do so. It was highly speculative what provision would be made by the state for the maintenance of adults with disability at the date when Gary reached the age of 18 in 2009. In any event, there was no justification for holding that the state rather than the wrongdoer should bear that burden. Secondly, Miss Dorrian relied on section 10(c) of the Administration of Justice Act 1982 as precluding Mr Hajducki's argument. That section provides:

"Subject to any agreement to the contrary, in assessing the amount of damages payable to the injured person in respect of personal injuries there shall not be taken into account so as to reduce that amount -

 

(c)

any benefit payable from public funds, in respect of any period after the date of the award of damages, designed to secure to the injured person or any relative of his a minimum level of subsistence".

Albeit made under different legislation, Lord Cullen's decision in Fleming justified the conclusion that the pursuers were injured persons suing for damages in respect of personal injuries.

Miss Dorrian's argument based on section 10(c) is in my opinion misconceived. In Fleming Lord Cullen (at 163E) held in the context of the law of limitation of actions that:

"the expression 'personal injuries' is ... wide enough to cover various forms of personal suffering, including distress and inconvenience. It is not necessary that 'personal injuries' should be such as to involve a medical condition".

But in McFarlane his Lordship (at 311E) said of the pursuers' claims in respect of the cost of rearing their additional child:

"... this is presented as a claim in respect of the adverse effect on an interest of both pursuers which is distinct from the second pursuer's interest in regard to her bodily integrity, but has this in common with it in the sense that both represent the realisation of damnum occurring at the point of conception. The distinct nature of the pursuers' claim is plain in the case of the first pursuer. In the case of the second pursuer I do not regard her claim as in some way representing the consequences of the pain and suffering experienced in pregnancy and childbirth."

It follows, in my view, that whether or not the pursuers' claims for solatium are properly to be regarded as claims in respect of personal injury, any damages payable to them in respect of the cost of maintaining Gary are not "damages payable to the injured person in respect of personal injuries". Section 10(c) therefore, in my opinion, does not operate to preclude Mr Hajducki from making the submission that the cost of Gary's basic maintenance once he reaches adulthood will not in fact be borne by the pursuers.

It remains for consideration whether there is a sufficient evidential basis for that submission. In my opinion there is. I regard it as within my judicial knowledge that at present the state does make provision by way of payment of benefits for the maintenance of adults with disabilities. It is not in my view speculation to suppose that that state of affairs will remain when Gary reaches majority. On the contrary, it would be speculative to suppose that the situation will change. It is not a question of whether the wrongdoer or the state should bear the burden of maintenance. The question is whether as a matter of fact the pursuers are likely to have to bear that burden. In my opinion they are not. I am therefore of opinion that no award should be made in respect of the cost of Gary's basic maintenance after he reaches the age of eighteen.

I am not satisfied, however, that the likelihood of state provision for basic maintenance excludes the pursuers' claim for this period in respect of the extra maintenance costs arising from Gary's special needs. It may be that the state provision will cover those extra costs, but that has not been clearly established. I am therefore of opinion that it is appropriate to make an award in respect of those items in respect of the period between Gary's eighteenth and fortieth birthdays. The amount claimed is £1207 a year, but making the same adjustments as I have done in respect of the earlier periods, I reduce that to £1050. Miss Dorrian suggested a multiplier of 8. Mr Hajducki suggested 3 or 4. In my opinion 8 is appropriate. I therefore assess this item at £8400.

(4) Care Costs

(a) Birth to 30 April 1998

As background to this aspect of the claim Miss Dorrian presented a document (No. 25 of process) which set out in schedule form a summary of Gary's health and development. The document was based on the evidence of the pursuers, Miss Cossar and Mr Talbot, and its substantial accuracy was not disputed by Mr Hajducki. I accept it, and do not find it necessary to reiterate its contents.

The pursuers' computation of this aspect of the claim is set out in the third column of No. 24 of process, which is based on Miss Cossar's report (No. 30/3 of process) at pages 6 to 12. It proceeded on the basis that two additional hours of care per day by the pursuers were made necessary by Gary's handicap, together with evening and weekend respite care by the first pursuer's mother, Mrs Cranmore. The care was costed by reference to the rates payable by a charitable body, the Crossroads organisation, to care workers, discounted by 33% to allow for income tax and national insurance contributions. The calculation also included additional periods of care representing the periods when the first pursuer accompanied Gary when he was an in-patient in hospital. Apart from disputing the appropriateness of the last-mentioned aspect of the calculation, Mr Talbot did not quarrel either with the assessment of the amount of care or the rates of remuneration used. The computation also involved, as a matter of concession on the pursuers' part, a deduction in respect of Disability Living Allowance ("DLA") received. In the result, the amount claimed was £21,378. Notwithstanding Mr Talbot's acceptance of the pursuers' calculations, Mr Hajducki put forward alternative round figures, rising from £3500 to £4500 a year, and bringing out a total after deduction of DLA of £11033, which represented the pursuers' calculations discounted to take account of weekends which might in any event have been spent by a normal healthy child with his grandmother, a profit and overhead element in the Crossroads rates, the fact that the care was being provided by family members, not professionals, the exclusion of the hospital periods, and other contingencies.

Mr Hajducki's primary position, however, was that since no expense had actually been incurred in providing the care in question, there was no recoverable loss. He referred to Robertson v Turnbull 1982 SC (HL)1 for the common law rule that the dependants and relatives of an injured party had no right of action in respect of loss which they have suffered. It was to alleviate the effect of that rule that section 8 of the Administration of Justice Act 1982 was enacted. It provided for recovery of reasonable remuneration for necessary services provided to the injured person by a relative. Here, however, the services provided by the pursuers and Mrs Cranmore were provided to Gary, and he was not the injured person within the meaning of section 7 of the 1982 Act. The statutory remedy was thus not available.

Miss Dorrian sought to justify only part of the claim by reference to section 8 of the 1982 Act, namely the part that related to respite care provided by Mrs Cranmore. That care, she submitted, was a necessary service provided by Mrs Cranmore to the pursuers, who were the injured persons. So far as the care provided by the pursuers themselves was concerned, neither the common law rule in Robertson nor the statutory remedy had any application, because the pursuers were the persons with the right of action in respect of the defenders' negligence. It did not matter that no care costs had in fact been incurred. The calculations put forward were simply a means of reducing to money terms the increased commitment of time required of the pursuers over and above that which would have been required in the case of a normal healthy child. They were a means of valuing the restriction on the pursuers' freedom of action. Without putting a money value on this aspect of the impact of the defenders' negligence on the pursuers' lives, it was impossible to effect restitutio in integrum. Reference was made to the quotations from Livingstone and Auld v Shairp in McFarlane at 311K and 315A respectively. An analogy could be drawn with claims for loss of earning capacity or loss of congenial employment. The latter was usually included in solatium (e.g. Stark v Lothian and Borders Fire Board 1993 SLT 652), but it has been recognised that in exceptional circumstances it might form a separate head of claim (Lenaghan v Ayrshire and Arran Health Board 1994 SLT 765 at 769G).

In my opinion the pursuers cannot base their claim, so far as it relates to respite care provided by Mrs Cranmore, on section 8 of the 1982 Act. My reasons for so holding are similar to those already set out in relation to the argument under section 10(c) of the 1982 Act. A claim under section 8 is available to "the injured person" as defined in section 7, i.e. a person who has sustained personal injuries, and the necessary services must be rendered "in consequence of the injuries in question". Even if Mrs Cranmore's services can properly be regarded as rendered to the pursuers rather than to Gary, which seems to me at least doubtful, they are not services rendered in consequence of any personal injuries suffered by the pursuers.

I have some sympathy with the proposition that the impact of the additional care which Gary requires because of his handicap on the pursuers' ability to deploy their time as they choose is something which ought to be reflected in money terms as part of effecting restitutio in integrum. It seems to me, however, that reference to the cost which would have been incurred if that additional care had been provided on a commercial basis by a third party is not the appropriate way of doing so. It seems to me that the increased invasion of their free time is appropriately reflected in a general way in the awards of solatium which I have made. I bear in mind, too, that the first pursuer has a claim for loss of earnings. There would, in my view, be an element of double counting if she recovered that loss of earnings and also damages involving remuneration for the care which she had given up employment in order to be able to provide for Gary.

I am therefore not persuaded that any separate award should be made in respect of this aspect of the claim.

(b) 1 May 1998 to age 19

This period runs to Gary's nineteenth birthday because it is then that it is expected that his attendance at Glencryan Special School will come to an end. The calculation of the claim is set out in the third column of No. 24 of process at pages 5 and 6, and is based on pages 12 to 15 of Miss Cossar's report. It includes a continuation of the provision of two hours care a day by the pursuers. The defenders take the same objection to that aspect of the claim as has already been discussed in the context of the period to the date of proof, namely that the care is expected to be provided by the pursuers without any actual expenditure, and for the same reasons as I have already expressed I regard that objection as well founded. The larger part of the claim, however, relates to the provision of respite care. It is not likely, on the evidence, that Mrs Cranmore will be able to continue to provide such care. Mr Talbot gave evidence about the possibility of the provision of respite care by the local authority, but there was also reference to the fact that there were only limited resources available to provide such care. Miss Dorrian submitted that the general policy of the law was that the wrongdoer should not be relieved of liability for expense on the ground that it would be likely to be borne by some manifestation of the welfare state. She pointed to section 2(4) of the Law Reform (Personal Injuries) Act 1948 as illustrating the point. That section provides that in an action of damages for personal injuries in determining the reasonableness of any expense the possibility of avoiding it by taking advantage of the facilities available under the National Health Service is to be disregarded. She did not argue that that section was applicable, but said that it illustrated the proper approach. I am not persuaded that it is appropriate to draw any analogy from section 2(4) in the context of this claim, but I take the view on the evidence that, while some respite care provision may be available from the local authority, the position is uncertain and it would be reasonable for the pursuers to make private provision for the measure of respite care which Miss Cossar has assessed as reasonable. If put in a position of being able to afford such private provision of respite care, I am satisfied that the pursuers would procure it.

I am therefore of opinion that an award should be made in respect of the cost of respite care, but not in respect of the care which the pursuers will themselves provide on a daily basis. Miss Dorrian accepted that DLA should be deducted from the care costs. Mr Talbot did not dispute the appropriateness of the rates used in the pursuers' calculations. Abstracting the respite care figures from No. 24 of process, the annual cost is £8568 until Gary is 12, and £9864 thereafter. The annual amount of DLA is £2574. The net average is therefore £6730 a year. Applying the multiplier of 9 suggested by Miss Dorrian, which I accept as appropriate, yields £60570.

(c) Age 19 to age 40

Miss Cossar proceeded in her calculations on the hypothesis that Gary would attend a residential college for two years when he was nineteen and twenty (see para. 11.15 of No. 20/3 of process, and the details of various colleges set out in Appendix 5 thereof). Mr Talbot, on the other hand, said that in his experience people affected by Down's Syndrome attended local colleges on a non-residential basis, typically for one morning a week. The first pursuer gave evidence that she anticipated that Gary would attend college, but it was clear that she had in mind the sort of non-residential attendance referred to by Mr Talbot. Indeed she said that that was what her brother Ian had done, for one morning a week. I therefore take the view that the likelihood is that Gary will attend a local college on a similar basis, and will not attend a residential college. I therefore do not require to assess the cost of the latter course.

Apart from the question of college attendance, the care costs claimed for this period comprised (i) fees for attendance at an adult training centre, (ii) care by the pursuers as before, (iii) respite care by others and (iv) case management costs.

The claim for adult training centre fees was based on Miss Cossar's evidence that the cost of attendance at such a scheme run for victims of brain injury by Rehab Scotland was £250 a week. Her evidence, however, was that placements at adult training centres were ordinarily funded by the local authority social work department, but she said that it could not be guaranteed that such funding would still be available in 2010 when Gary was 19. Mr Talbot's evidence was that such provision was ordinarily free. In these circumstances I take the view that, although not guaranteed, the probability is that attendance at such a centre will be available free for Gary.

For the reasons already discussed, I do not consider that any award should be made in respect of the care to be provided by the pursuers.

For the reasons already discussed I regard the claim for the cost of respite care as well founded. The annual cost has been put at £9054, less DLA of £2574, i.e. £6480. Miss Dorrian proposed a multiplier of 8, which I regard as appropriate. That yields a total of £51,840.

Miss Cossar's evidence was that many individuals with special needs have difficulty in obtaining the support they need, and require the assistance of a case manager or "key worker". She assessed the set-up costs at £2937 and the annual costs thereafter at £3055, based on one hour a week. Mr Talbot said he did not see the need for such assistance at present, but of course it is in respect of Gary's adulthood that the claim is made. My view, however, is that since in respect of this period the claim proceeds on the hypothesis that Gary will be living at home with the pursuers, such provision will not be required, given the experience which the pursuers will by then have in procuring the services that Gary needs.

(5) Care and Maintenance after age 40

By the time Gary reaches the age of forty, both pursuers will be over sixty-five, and it is unlikely that they will still be able to bear the burden of looking after Gary. According to the agreed report by Dr Galea (No. 20/8 of process), by that stage Gary will have a higher chance of pre-senile dementia than is present in the general population. In these circumstances, Miss Cossar assessed the likely cost of Gary's care after the age of forty under two scenarios. One was his residence in some form of supported accommodation. The other was residence in his own home with various carers providing 24 hour supervision. The cost of the latter was assessed as being higher than the former. Mr Talbot said that social security benefit would be available to pay for residential care. I take the view that, if they were able and it was necessary to do so, the pursuers would wish to pay to make provision for Gary to be in supported accommodation once they are no longer able to look after him at home. The cost of various forms of accommodation is set out in Appendix 3 to Miss Cossar's report. Her calculation is based on accommodation provided by Key Housing with a medium level of support, at £557 a week. That seems to me, by reference to the level of support, and by comparison with the other charges cited, to be reasonable. It is plain that for the period in question a modest multiplier is appropriate. Miss Dorrian suggested 5, but I think 4 is more appropriate. The result is that I would assess this head of claim in round terms at £115,000, if I were ignoring the prospect of social security funding. I do not feel able to ignore that prospect completely, but in view of the uncertainties that attach to looking over thirty years into the future, I do not consider that it would be appropriate to make no award at all. I shall discount the original assessment to £50,000 to reflect the probability of some state-funded support.

(6) Wage Loss

(a) To date

Since returning to work after Gary's birth, the first pursuer has worked part-time, for approximately half the number of hours per week that she would work if working full-time, which she said she would otherwise have continued to do. Her actual earnings from November 1991 to April 1998 were calculated at £31,585, and it was contended that her loss was therefore of roughly the same amount, but Miss Dorrian rounded the claim down to £25,000 to allow for a number of factors, including maternity leave in connection with Lauren's birth. Mr Hajducki suggested that the loss should be taken at £4000 a year. He also suggested that after Lauren's birth, it was not clear that the fact that the first pursuer worked part-time was attributable to Gary's handicap. I have no hesitation in accepting that with one or two normal healthy children the first pursuer would have been able to organise her life and theirs in such a way as to enable her to continue working full-time. I therefore accept that her wage loss to date is attributable to the defenders' negligence. I assess it at £25,000.

(b) Future

The claim for future wage loss is calculated on the basis of an annual loss of £4,800 and a multiplier of 17. I accept that assessment of the annual loss. Mr Hajducki suggested that for someone of the first pursuer's age a multiplier of 12 would ordinarily be appropriate, but that in this case it should be further discounted. The reason for the latter submission was the evidence that the pursuers had decided that, if anything happened to Mr and Mrs Cranmore, they would take Ian to live with them. If that eventuated, it would be likely to afford a separate reason for the first pursuer's inability to work full-time. In all the circumstances of the case I think that the suggested multiplier of 17 is slightly too high; I prefer 15. The result is that I assess the first pursuer's future loss of earnings at £72,000.

Interest

There was no real dispute as to the proper approach to interest. It was submitted and accepted that it should be awarded on past elements of loss at half the court rate prevailing from time to time. At the date of the proof, both parties, for ease of calculation, reduced that to the application of the rates of 7.5% for 1.5 years and 4% for 5 years. Since by the date of decree a little over seven years will have passed since Gary's birth, I shall apply 7.5% for 1.5 years as suggested, but 4% for 5.5 years. For the purpose of the interest calculation, I shall, accepting Miss Dorrian's submission, treat 60% of the solatium awards as relating to the past. No submission was made in respect of interest on the layette costs. The amount is trivial, but in respect of that item I am of opinion that the full court rate should be applied since the whole expense was incurred at or about the date of Gary's birth.

Summary

My assessment of the value of the pursuers' valid claims may therefore be summarised as follows:

Item 1(a) Solatium for the first pursuer £15000.00

Interest on 60% thereof 2992.00 £17992.00

Item 1(b) Solatium for the second pursuer 5000.00

Interest on 60% thereof 997.00 5997.00

Item 2 Layette 750.00

Interest thereon 334.00 1084.00

Item 3(a) Maintenance - birth to 30 April 1998 23,609.00

Interest thereon 7850.00 31459.00

Item 3(b) Maintenance - 1 May 1998 to age 19 41200.00

Item 3(c) Maintenance - age 19 to age 40 8400.00

Item 4(b) Care - 1 May 1998 to age 19 60570.00

Item 4(c) Care - age 19 to age 40 51840.00

Item 5 Care and maintenance after age 40 50000.00

Item 6(a) First pursuer's past wage loss 25000.00

Interest thereon 8312.00 33312.00

Item 6(b) First pursuer's future wage loss 72000.00

All that remains is the allocate each of these sums to the appropriate conclusion, and to apply the 5% discount provided for in terms of paragraph 1 of the Joint Minute of Admissions (No. 22 of process). I shall accordingly sustain the pursuers' first plea-in-law, repel the defenders' first, second and third pleas-in-law, and grant decree (1) in respect of the first conclusion for 95% of the aggregate of items 1(a) and 6(a) and (b), i.e. for the sum of £117,139, (2) in respect of the second conclusion for 95% of item 1(b), i.e. for the sum of £5697, and (3) in respect of the third conclusion for 95% of the aggregate of items 2, 3(a), (b) and (c), 4(b) and (c) and (5), i.e. for the sum of £213,325.

 

OPINION OF LORD MACFADYEN

in the cause

MARGARET ANNE McLELLAND (A.P.) and ANOTHER

Pursuers;

against

GREATER GLASGOW HEALTH BOARD

Defenders:

 

________________

 

 

 

 

 

Act: Dorrian Q.C., Illius

Digby Brown

 

 

 

 

 

Alt: Hajducki Q.C., Gibson

R F Macdonald

 

 

 

 

 

 

 

 

 

 

23 September 1998


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1998/12.html