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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrison v. Whiteinch Demolition Ltd [2006] ScotCS CSOH_67 (04 May 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_67.html
Cite as: [2006] CSOH 67, [2006] ScotCS CSOH_67

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OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH 67

 

A2931/02

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MACPHAIL

 

in the cause

 

DAVID FLEMING MORRISON

 

Pursuer;

 

against

 

WHITEINCH DEMOLITION LIMITED

 

Defenders:

 

 

ннннннннннннннннн________________

 

 

 

Pursuer: Ennis; Drummond Miller, W.S.

Defenders: Shand, Q.C.; Simpson & Marwick, W.S.

 

 

21 February 2006

 

Introduction

 

[1] This is an action of damages for personal injuries which was settled by joint minute. On 21 February 2006 I heard counsel on a motion by the pursuer to interpone authority to the joint minute, certify certain persons as skilled witnesses and grant an additional fee in terms of rule 42.14(a), (b) and (e) of the Rules of the Court of Session 1994. The defenders opposed the granting of an additional fee and the certification of one of the named persons. The pursuer did not insist on the certification of that person. I interponed authority to the joint minute and granted decree of absolvitor, found the defenders liable to the pursuer in the expenses of process and certified the other named persons as skilled witnesses for the pursuer, but I refused to grant an additional fee. The pursuer has now reclaimed.

 

The parties' averments

[2] The pursuer, who is now 48 years of age, was injured in the course of his employment with the defenders as a labourer on 10 May 2002. He was working near the large beam section of a crane which toppled over on to him and caused many injuries. The sum sued for was г500,000. The defenders admitted liability on record. The parties' extensive averments relative to quantum may be very briefly summarised as follows. The pursuer averred that he had a fractured pelvis, a shattered sacrum, a fractured rib, a ruptured bladder and a deep laceration to his perineum. He was in hospital until 7 June 2000 and again from 29 November to 4 December 2000. He required considerable medical and nursing care at home. He has a reduced range of movement in both hips and continues to suffer pain and discomfort in both hips. In addition, he averred that following the accident he became depressed, irritable, bad-tempered and difficult, and was diagnosed as having post-traumatic stress disorder and major depressive disorder. His physical disabilities and depression mean that he is unlikely to obtain employment in the future. He required many services from his family. He stated claims for wage loss, solatium and damages in respect of services in terms of sections 8 and 9 of the Administration of Justice Act 1982.

[3] The defenders averred that the pursuer had a long pre-accident history of back pain and persistent somatoform pain disorder. They specified his pre-accident complaints in detail. They averred that he had made a good recovery from his injuries. Any "psychiatric/psychological symptoms" attributable to the accident significantly diminished within a short period of time. He was regularly out of work before the accident.

 

Submissions for the pursuer

[4] At the hearing of the motion, counsel for the pursuer stated that the pursuer had left school at the age of 16 and had no formal qualifications. He could not be retrained for any suitable occupation. Counsel emphasised the severity of his injuries. In 2004 a tender had been lodged but had been withdrawn, apparently because it had been lodged without instructions from the defenders' insurers. A further tender had been lodged a week before the diet of proof.

[5] Addressing me on each of the heads under which an additional fee was claimed, counsel explained that as to head (a), "the complexity of the cause and the number, difficulty or novelty of the questions raised", the issue of complexity was centred on the medical consequences of the accident. Counsel pointed to the extensiveness and severity of the pursuer's skeletal and internal injuries. The pursuer's averments did not do justice to the traumatic nature of the injuries in this case: it was not a run-of-the-mill crushing injury. There was a question whether he would need one or two hip replacements in the future. His mobility had been impaired by the severity of his injuries. In general, such complex injuries were not exceptional. But the defenders claimed that the consequences of the accident were not as severe as the pursuer claimed them to be: the defenders said that other factors came into play and that the pursuer's very extensive medical records showed a range of complaints which impacted on his mobility and his ability to work. The pursuer, on the other hand, said that it was his physical injuries alone which prevented him from working. The defenders' position had to be examined. The pursuer had significant psychological problems: post-traumatic stress disorder, depressive illness and loss of self-esteem. It had been difficult to investigate these because of the pursuer's low mood and his reluctance to engage with the experts. There was a range of complex and difficult issues. It was necessary to work out how each medical condition could be related to the accident. Also, the pursuer had suffered a heart attack and a small stroke. He was in chronic pain. The causation and inter-relation of each symptom had to be looked at. This had an effect on the question of future wage loss. The pursuer had had "a job for life" with the defenders. His claim for future wage loss was very substantial. If the defenders were correct in saying that his symptoms were not due to the accident and that he would not have worked beyond the age of 50 anyway, the damages for future wage loss would be small. A range of medical experts had been involved: psychiatrists, psychologists and a pain consultant.

[6] As to head (b), "the skill, time and labour, and specialised knowledge required, of the solicitor, or the exceptional urgency of the steps taken by him," there was no claim on the ground of exceptional urgency. However, the skill, time, labour and specialised knowledge required were beyond the norm. The pursuer lived in Greenock and had very limited mobility. All meetings with him had had to be in Greenock, and the Edinburgh agents had had to travel there. The pursuer also had a very limited ability to understand the complex issues in the case. That condition was made worse by his post-traumatic stress disorder, his depression and his medication. In March 2003 he had attempted suicide by overdosing on his medication. A high level of skill was required in acting on behalf of and managing a client who was very depressed and not very intelligent, and who continued to be a suicide risk. Instructions had to be taken when he was very anxious about the case and did not want to engage with anyone. This increased the time and labour required. The pursuer's wife had played a considerable role in maintaining day-to-day contact but she herself had had to go to hospital because she had attacks of asthma.

[7] As to head (e), "the importance of the cause or the subject-matter to the client," he was a relatively young man from whom much had been taken. He lived at present in an unsuitable local authority house which had been little adapted for his needs. He would need finance to adapt a house and to get out and about. The damages would also facilitate his paying for a pain management programme at an establishment in Liverpool which dealt with people with chronic pain. This prospect had arisen late in the day. The pursuer could potentially recover some quality of life. The motion should be granted. Alternatively, there should be a remit to the Auditor.

 

Submissions for the defenders

[8] The grounds of opposition to the motion were stated as follows in Form 23.4:

"This is an action in which liability was admitted from an early stage. The only issues arising were essentially medical, or flowed from the medical position. Those issues were dealt with in the normal way by the instruction of the appropriate expert. There are not circumstances arising in the present case warranting the award of an additional fee under heads (a), (b) or (e) of Rule 42.14."

[9] Counsel for the defenders moved me to refuse the motion. Alternatively, if I considered that it might be appropriate to allow an additional fee, the question should be remitted to the Auditor for determination. Counsel submitted that the considerations said to favour the allowance of an additional fee must be detailed and adequately vouched. The Court had not been referred to any medical reports or records. It had not been said that there had been any difficulty in finding medical experts. The pursuer must point to concrete factors in support of the various heads founded on. Counsel cited Zyszkiewicz v University of Glasgow 1995 SCLR 1124. On the course of remitting to the Auditor counsel cited Kennedy v British Coal Corporation 1997 SLT 151 and Young v Blue Star Line Ltd 1998 SLT 109.

[10] Turning to head (a), counsel pointed out that liability had been admitted from an early stage. The principal issue was the extent to which the physical injuries sustained by the pursuer caused him greater disability than he had suffered before the accident. That was essentially a medical issue, which had been dealt with in the normal way by instructing orthopaedic reports which dealt with his ability to resume his pre-accident work. The pursuer had had a poor pre-accident employment history, and the issue of his future wage loss was not complex. There was a dispute between the psychiatrists as to whether he would have continued to work but for the accident, but that was not unusual. As to his claim for services, a care costs expert had been instructed in the normal way. His claim in relation to loss of pension was not large and an actuary had been instructed. All these investigations were not out of the ordinary for a case of this type.

[11] As to head (b), no degree of skill beyond the norm had been identified. There had been no detailed, vouched submissions. This was a factual issue which could not be considered. Alternatively, there should be a remit to the Auditor.

[12] As to head (e), the prospect of attendance at a pain management programme was news to the defenders. The records showed that the pursuer had been non-compliant with psychiatric treatment. There was a factual issue as to whether the pursuer would be likely to undergo such treatment.

[13] Counsel advised me that the case had settled for г200,000, and observed that the pursuer might have done well out of the settlement. He had not worked from 1993 to 2000, and he would not have had "a job for life" with the defenders. His problems had been primarily psychiatric, and he had had a substantial pre-accident psychiatric history. His son received a carer's allowance. The motion should be refused.

 

Decision

[14] In reaching my decision I considered the case as a whole and each of the factors founded on by the pursuer. I took into account, first, the fact that the defenders had admitted liability at an early stage. That in itself had reduced the burden on the pursuer's solicitors. Secondly, the sum sued for and the figure at which the case had settled were not, in my view, unusual in the Court of Session.

[15] Thirdly, as to head (a), the medical consequences of the accident, while they were not only serious but also both physical and psychiatric in nature, did not appear to me to be so complex as to take the case out of the range of personal injuries actions normally dealt with in this Court. There was no suggestion that it had been difficult to find appropriate medical experts and obtain advice from them. Differences between medical experts instructed on either side are not unusual. Nor is it unusual for such differences to be relevant to the calculation of future wage loss.

[16] Fourthly, as to head (b), the fact that the solicitors had had to deal with a rather difficult client who could only be seen in Greenock no doubt made demands on their skill, time and labour but not, in my judgment, to such an extent as to justify the allowance of an additional fee.

[17] Finally, as to head (e), I accepted without hesitation that the case must be important to the pursuer; but the question of how the damages should be applied did not appear to me to be more anxious than in other cases where a substantial award is made to a disabled pursuer.

[18] Having reviewed the whole matter, I concluded that the case was not so different from other substantial actions of damages for personal injuries brought in this Court as to justify the allowance of an additional fee. I therefore refused that part of the motion.

 

 

 


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