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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nicoll v Guild Homes (Tayside) Ltd [2008] ScotCS CSOH_156 (13 November 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_156.html
Cite as: 2008 GWD 38-572, [2008] ScotCS CSOH_156, 2009 SLT 486, [2008] CSOH 156

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OUTER HOUSE, COURT OF SESSION

 

 

 

 

 

 

 

[2008] CSOH 156

 

 

OPINION OF MORAG WISE, Q.C.

Sitting as a Temporary Judge

 

in the cause

 

LEE MACFARLAN NICOLL

Pursuer;

 

against

 

GUILD HOMES (TAYSIDE) LIMITED

Defender:

 

_______

 

 

Pursuer: G Clarke; Harper Macleod, LLP

Defender: J.G. Thomson; Simpson & Marwick

 

13 November 2008

 

Introduction


[1] The Pursuer ("Mr Nicoll") sues for damages for personal injuries sustained in a road traffic accident on
4 June 2001. Liability is admitted and no question of contributory negligence was pursued. The proof was accordingly restricted to the issue of quantum, with the level of solatium for Mr Nicoll's injuries and his future employment prospects being the main issues in contention.


[2]
In addition to the Pursuer himself, evidence was led in his case from Professor David Rowley (a consultant orthopaedic surgeon), Penelope Fraser (a consultant clinical psychologist), two leading academics in the field of textile design, Professor John Miles and Professor Clare Johnston and from Peter Davies (an employment and vocational and rehabilitation consultant). On behalf of the Defenders evidence was led from one witness, Andrew Nicoll (an employment consultant).

 

Facts

(i) Background


[3]
Mr Nicoll was born on 12 November 1947 and was accordingly 53 at the time of the accident that gave rise to this litigation. In the mid to late 1960's he graduated with a Diploma in Textile Design from the Scottish College of Textiles at Galashiels, after which he undertook a post graduate course at Birmingham College of Art (Aston University), obtaining his post graduate qualification in 1969. He left with an ambition to work as a textile designer in industry. After gaining experience within the United Kingdom, he took his first job in mainland Europe in 1973. He became involved in computer aided design techniques and in 1976 he became a Manager with "Almer", a service company for Cantoni, Bassetti and Ratti, three Italian companies involved in textile printing and based in Northern Italy. He was using technology that was very advanced for the time. Ultimately Ratti took over Almer as one of its on divisions and accordingly Mr Nicoll became employed by that company. In the 1980's Ratti was still being run by its founder, Antonio Ratti. The company was involved in the production of luxury goods, particularly in silk, for the "haute couture" market. Mr Ratti was interested in the technological advances that could be achieved in silk printing. He set up a Centre for Study and Research within the company and from about 1987 Mr Nicoll was Director of that Centre. He had a team of designers working for him, who he persuaded, gradually, to use computer assisted design. His particular research interest was how technology was changing the fashion market. His work involved some travelling to international trade fairs in Paris and Cologne. His annual salary in 1997/98 was about 96,332,000 Lira. This translates into approximately 22,000, although differences in the cost of living and average salaries as between the two countries makes direct comparison unsatisfactory.


[4]
Mr Nicoll began to give lectures in the United Kingdom while living and working in Italy. The Royal College of Art in London invited him to give a lecture for post graduate students. He lectured also at Brighton College of Art and for the Design Council in Northern Ireland. He delivered a lecture once every eighteen months or so. He was also involved over a period of about four years with students who would undertake a two month "stage" at Ratti's Centre for Study and Research. Other involvement with students included his association with an organisation known as "Textprint", which ran an annual competition for the best design student of the year in a variety of disciplines. Textprint had a stand each year at the largest international trade fair for textile designers "Premier Vision" and Mr Nicoll was part of that for about 8 or 9 years. In 1994 he acted as judge for the Liberty print prize at Premier Vision.


[5]
By 1998, digital textile printing technology was starting to develop and Ratti were negotiating the acquisition of such a printer. But Mr Ratti had died and those who took over decided that they no longer needed a Centre for Study and Research. Mr Nicoll was offered a post in production but not in research, which effectively ceased within the company. He reached agreement with Ratti to part company on something akin to a redundancy basis. He received a generous payment of 22 months salary, which he used to finance a career break. During that break he considered his options. He took time to learn the new software being used in textile printing, he visited design studios and the Jacquard Museum at Lyon and he undertook a piece of work for Liberty through a contact there, Clare Johnston (who subsequently became Professor Johnston). He did apply for a job in Germany, but it turned out to be a strictly technical job, which didn't interest him in light of his commitment to being involved in using computer generated design creatively. During 1999, he dedicated much of his time to playing music, a hobby that developed into a number of performing commitments and ultimately the chance of a recording contract. He was paid in cash for performing. Mr Nicoll never intended to pursue a full time career in the music industry. He was able to spend more time on this interest during a period when he had the financial cushion of the money received on the termination of his employment with Ratti. Eventually, in about the Spring of 2000, he decided to leave Italy and return to the United Kingdom. His intention was to produce his own collections and to teach. He discussed that intention with others in the field of textile design, including Professor John Miles. He considered it likely that he would require to teach full time when he no longer had funds to supplement his income. Mr Nicoll sold his house in Italy over the Summer of 2000 and returned to this country in the October, basing himself near Forfar in Angus, where he still had family.


[6]
Shortly after he returned to the UK, he applied for a full time position at Glasgow School of Art. Although he still had some savings together with the proceeds of sale of his house in Italy, he was at the stage where he required to look for jobs. The post for which he applied was to head up a research centre, which was to focus particularly on digital imaging and prototyping in printed textiles. This was the area in which Mr Nicoll had extensive experience and contacts. In the field of textiles, the relationship between design schools and industry is a particularly important one. Mr Nicoll attended an interview for the Glasgow post. He prepared and delivered a power point presentation at interview. He was a strong candidate. Ultimately the job was filled internally by an employee whose tenure in the new post was short lived and who was subsequently involved in an employment dispute with the College. Mr Nicoll was surprised and disappointed not to have been offered the position.


[7]
Between applying for the Glasgow job and the date of the accident, Mr Nicoll purchased a computer and started to use it for his own design work. In May 2001 he was asked to undertake some consultancy work for the John Miles Partnership, travelling to Italy with a view to selling their designs. The trip was quite successful and was expected to be the first in a series of trips. He received payment of a flat fee of about 200 for the trip, plus 15% of every sale, together with payment of his expenses. He earned about 600 - 700 during the four day trip, having sold about 22 designs. During this period he also undertook some part time work as a tour guide for Strathmore Estates at Glamis Castle, which is very close to his home. His fluent Italian rendered this part time employment suitable while he was looking for work in his chosen field. His earnings from Strathmore Estates were modest, insufficient for his financial support, being only about 80.50 per week.

 

(ii) Accident on 4 June 2001


[8]
On 4 June 2001 (it was acknowledged during the Proof that the date of 3 June 2001 averred on record was an error) Mr Nicoll had been to visit his sister at Guthrie. He was driving a Volkswagen camper van and was driving to the beach. As he was driving through Redford village, a tractor towing a trailer and driven by an employee of the Defenders in the course of his employment with them passed him on the other side of the road. As it did so, the trailer became detached from the tractor and swung into Mr Nicoll's path, colliding directly with his van. After the collision Mr Nicoll was trapped in his vehicle for at least 2 hours until he was freed by the fire service. He was taken to Ninewells Hospital in Dundee where he was found to have suffered the following injuries - a comminuted intra articular open fracture of his right proximal tibia, a fracture of his right distal fibula, a fracture of his right femoral shaft, a closed subtrochanteric fracture of his left femur and lacerations to the right side of his chest. He also had a small open wound on his left calf, partial nail avulsion of his right thumb and abrasions to his right elbow. On the night of his admission to hospital (4 June 2001) he underwent extensive resuscitation and major surgery.


[9]
While Mr Nicoll's initial recovery from surgery was good, his fractures were slow to heal. He underwent active rehabilitation and physiotherapy. He had considerable problems coming to terms with the accident, his injuries and his ongoing pain. He was referred to the Clinical Psychology Department within NHS Tayside and attended counselling sessions with a psychologist there for a number of short periods between 2001 and 2005.

 

(iii) Residual Injuries and Prognosis


[10]
Since 2004, the main physical problem for Mr Nicoll has been pain in his right knee. It had been predicted that he would develop post traumatic arthritis there and it now seems clear that a full knee replacement will require to be attempted within about three years. That should alleviate some of his pain, but will not cure the awkwardness of his gait, which causes discomfort in his back and now some pain in his left knee. He cannot straighten his right knee and he has been left effectively permanently disabled by the accident.


[11]
Mr Nicoll has sought assistance from a chiropractor and a physiotherapist, but he remains stiff and sore in the morning with an aching pain in his knee that worsens if he carries out any increased activities. He can walk no more than about 200 yards a day. He has obtained an automatic transmission car and has a disabled badge which allows him to park close to most public venues. He takes dihydrocodeine and paracetomal at regular intervals in an attempt to alleviate his pain. He has been left with a general feeling of stiffness and fatigue, common in those who have been involved in complex polytrauma (6/25, Report of Professor David Rowley, 15 May 2008).


[12]
Mr Nicoll is suffering an adjustment disorder, which is a reaction to a particular thing or event that causes stress over and above what would be expected in an average person. He continues to have intrusive ideas about the accident and subsequent events. He has done what he can to cope with his feelings of anger about this. He now feels like a dull person, in contrast to his pre accident demeanour which was reasonably gregarious.

 

(iv) Post Accident Work


[13]
Since the accident Mr Nicoll has done what he can to maintain some level of activity in his chosen field. He has undertaken three trips for the John Miles Partnership to sell designs on the same basis as the trip he took shortly before the accident and for similar payment. The last of these trips was quite debilitating and he will not be able to carry out any more work of that type in future. He also travelled to Italy to deliver a lecture on textile design in the context of the new digital technology at a conference organised by the University of Milan. He was offered work at Jordanstone College of Art, Dundee, but managed only a half day's teaching. As a result of the accident he is not capable physically of undertaking regular lecturing work in the design field. Such work is physically demanding in a way that lecturing in a purely academic subject is not. For example, students are assisted with the physical side of hanging work for exhibitions. Mr Nicoll has also contributed a chapter in a textbook, "Digital Printing of Textiles", edited by H. Ujiie (No 6/21 of Process). The chapter is entitled "A designer's perspective - digital versus traditional", in which it is argued that the new digital technology in printing will ultimately be as important as the Jacquard loom was in history, because of the potential for mass customisation of designs. Mr Nicoll has continued to keep abreast of developments in design technology and to create designs himself, insofar as he is able during the relatively short periods that he can sit at a computer.


[14]
In summary, Mr Nicoll has maintained a good reputation in the field of textile design since the accident. He has been unable to work in his chosen field, other than to undertake the occasional isolated projects referred to above.

 

(v) Loss of Earnings


[15]
In August 2002, Professor John Miles was engaged in setting up the Textiles Department at Bath Spa University College. He approached Mr Nicoll at that time about a lecturing post in the new department. Professor Miles was very keen to have someone of Mr Nicoll's standing in the textile design field as part of the new team at Bath. Like others in the said field,, Professor Miles had a great respect for Mr Nicoll. He was particularly keen to enlist someone with an interest in computer assisted design and research, who had worked for the most enviable company in printed textile design in the fashion industry. Mr Nicoll was unable to assist Professor Miles or subsequently to pursue an application for teaching work at Bath Spa because of his injuries. Had he been able to do so, there would have been part time teaching work available to him from September 2002. The full time posts were advertised in February 2003. Mr Nicoll would have required to apply and be interviewed for such a post had he been in a position to take one up. It is likely that, as head of a new department, Professor Miles' firm view that Mr Nicoll should be part of his team would have prevailed. Accordingly, but for the accident, it is likely that Mr Nicoll would have been employed as a full time Senior Lecturer at Bath Spa University College from about August 2003.


[16]
It is less easy to establish if and when Mr Nicoll would have progressed beyond the position of Senior Lecturer. Professor Miles thought that he would have progressed quickly and would have become eminent in the role, citing his research skills and commitment to anything he undertook as indicators of that. However, Mr Nicoll did not indicate a specific ambition to run a department within an educational establishment. His employment history indicated that he would not apply for posts that did not coincide with his particular interests. It is likely that he would have required to work full time for financial reasons and he was clearly motivated to do so. His energies outside his employment would, I think, have been devoted to pursuing design work of his own. I cannot conclude that he would have progressed beyond the position of Senior Lecturer. There was no specific evidence about when exactly such an opportunity would arise and if so, whether Mr Nicoll would have pursued it.


[17]
Once in post as a Senior Lecturer, it is likely that Mr Nicoll would have continued to undertake his own design work on a self employed basis. As a full time Senior Lecturer he would have been able to do so only on a relatively restricted part time basis. He had sufficient contacts to show and market his designs either through the John Miles Partnership or own his own.


[18]
Mr Nicoll would require to retire from a post as Senior Lecturer within Bath Spa University College at age 65. He would be able to continue with some part time work for four to five years thereafter. Age is not a barrier to success in the textile design and fashion industry. However, after the age of 65, any earnings from self employed work would be likely to be modest.

 

Discussion of Evidence


[19]
My general conclusions on the evidence, relevant to the issues in dispute, are reflected in the above passages. Ultimately there was no dispute at all about the nature and extent of the physical and psychological injuries and neither Professor David Rowley nor Penelope Fraser was cross examined. Professor Rowley expressed the view that Mr Nicoll has done everything he can to try and work but his physical disability and related pain severely restricts his ability to travel for the type of work he undertook for the John Miles Partnership. While he had done a little better than expected initially, he was finding it increasingly difficult and his ability to work had diminished. He confirmed that there was no question of Mr Nicoll now being physically capable of employment as a College Lecturer in the design field. The most he would ever be able to do is work at a computer keyboard for very limited periods. Penelope Fraser stressed that Mr Nicoll found his inability to work frustrating and this, together with the chronic pain from which he suffers, has left him with a feeling of lack of control over his life. Both medical professionals found Mr Nicoll to be a reliable historian who did not exaggerate and Professor Rowley described him as " ... genuinely making the best of it".


[20]
Mr Nicoll gave his evidence in a clear, quite slow and deliberate manner. It was apparent that the accident and its consequences have affected him deeply and he came across as someone grieving for the person he had previously been. I found him to be both credible and reliable in his account. He impressed as an intelligent and articulate man and I agree with Professor Rowley's conclusion that he was doing what he could to make the best of the unfortunate position in which he now finds himself. It was clear that for a time after his employment at Ratti ended, the Pursuer enjoyed having the funds for a career break, to pursue his interests in design and music while taking stock of his career. He accepted that he had not actively sought employment before his return to this country. The decision making process about his career had culminated in the decision in 2000 to live and work back in the United Kingdom. On his return he had applied for the one suitable job that had been advertised prior to the accident. He had contacts and was actively pursuing the decision he had made to teach and to create his own designs using his computer. I accept what he said in relation to his career intentions. He was a strong candidate for a teaching post in textile design.


[21]
He spoke of having been "in denial" for years since the accident about the issue of his ability to work. His desire to continue with the work that consumed his interest had led him to underestimate the impact of his injuries on his ability to do so. His attempts to continue to travel to Italy to show his designs are illustrative of that. The last trip he made, in May 2007, left him debilitated for a month afterwards. He realised that he could no longer pursue that avenue of work.


[22]
Mr Nicoll described his current physical difficulties as being unable to straighten his right leg, sharp pain around the right knee and an inability to walk more than 200 yards in any one day. He is unable to sleep for more than two to three hours at a time and he feels that long term painkiller use has left him less alert than previously. His initial anger about the circumstances of the accident has subsided. He continues to play and record music but is unable to commit to performing. Notwithstanding these ongoing difficulties, Mr Nicoll noted that he still had design ideas and liked to keep up with new developments in his field. Slowly, he had come to the realisation that implementation of those ideas was unlikely. Mr Nicoll described his pre accident life as centering on design and music. That life had been devastated by the accident. He felt certain that, but for the accident, he would have been pursuing a successful career by lecturing at Bath Spa University College and undertaking part time design work of his own. That seemed to me be an eminently achievable ambition in light of the evidence of Professors Miles and Johnston to which I now turn.


[23]
I found Professor Miles to be an impressive witness. He has had a highly successful career both in academia and in industry and has clearly been in demand in his chosen field. He presented as modest, even self effacing, against the background of his considerable achievements. He was generous in his admiration of the Pursuer's work, but I had no reason to consider that he was unrealistic in that. Indeed it was corroborated by Professor Clare Johnston who also thought that, but for the accident, Mr Nicoll's prospects of working in academia had been very good. She remarked that he had excellent experience and was a very good communicator, a key skill in education. She too would have considered him for a post had an opportunity arisen. The work in which he was most interested and qualified, digital design, is now an essential part of every BA and MA textile course. She described Mr Nicoll as "... very ahead of his time - he anticipated the importance of the digital field for textiles." It was clear that people within the textile industry tended to know of each other's accomplishments and to talk about them. Mr Nicoll had been talked of positively by academics in the field and it was known that Antonio Ratti had held him in high regard. Those with reputations were sometimes asked to apply for academic posts, albeit that an interview procedure would have to be carried out. Professor Johnston had been asked to apply for the Chair she now holds. The evidence of Professor Johnston, while relatively brief, was calmly and carefully delivered through live video link and was of considerable assistance.


[24]
Professor Miles said that, having admired Mr Nicoll's work, he "wanted to get him on my side" when setting up at Bath Spa University College. He wasn't a personal friend of the Pursuer, he simply wanted the best for his department rather than have Mr Nicoll work somewhere else. What Professor Miles admired was the Pursuer's work, as distinct from the role played by Mr Nicoll within Ratti, the day to day details of which were not surprisingly unknown to him. He too had been surprised that Mr Nicoll hadn't been offered the Glasgow job. He didn't think it odd that only one suitable post had come up in the time that the Pursuer had been living back in the UK, as he had also experienced lengthy periods of looking for the right position. In summary, Professor Miles, having tried frequently to persuade the Pursuer to work with him, would have done everything he could to enlist him at Bath Spa and was confident that he would have succeeded, given his position as head of a new department. I accept without reservation the evidence of both Professor Miles and Professor Johnston in relation to the Pursuer's pre accident standing as a designer and his attractiveness in 2001/2002 to any further education institution offering textile design courses.


[25]
The two employment consultants who gave evidence could not offer the kind of direct evidence of the Pursuer's abilities and suitability for employment as a lecturer upon which I have relied in concluding that on balance he would have gone on to teach at Bath Spa University College. However, each expressed views on Mr Nicoll's employment prospects at the time of the accident based on the facts of the case as known to them and their knowledge and experience of employment matters.


[26]
Peter Davies is a recognised employment consultancy expert. He met with the Pursuer on three occasions of two hours each and had two or three telephone sessions with him in addition. He prepared no less than four reports for the court's assistance. (6/14, 6/15, 6/17 and 6/26). In short, Mr Davies' opinion was that the Pursuer appeared to be a well known, well respected person who had a good prospect of getting work as a Senior Lecturer until the accident happened. His views were consistent with the direct evidence of Professors Miles and Johnston. He provided information from published data about earnings, both for academic posts and for the part time freelance design work that the Pursuer intended to keep up. In evidence he acknowledged that the figures in his reports were slightly inflated as they didn't take into account that Bath Spa University College was a "post 1992" University having more recently achieved that status and accordingly the figures should be slightly lower, at 33,000 - 34,000 per annum for a Senior Lecturer and 43,000 - 45,000 for Head of Department as at 2003/2004.


[27]
Andrew Nicol had met with the Pursuer for just over an hour on one occasion in November 2006 and had access to background documents. He had produced a report for the court's assistance (7/1). In short, he considered that by 2001 Mr Nicoll's time as a designer "had come and gone". He did not consider it realistic to think that the Pursuer would have carved out a successful career in academia at the age of 54 and doubted that he would have been able to fit immediately into the delivery of an academic programme at a British University. Mr Nicol said that he had not known of the pre accident application for the Glasgow job and that it would certainly have been of interest to him in reaching his conclusions had he had that information. He was also unclear when writing his report as to whether Mr Nicoll had carried out work showing designs through the John Miles Partnership prior to the accident. Andrew Nicol seemed to dispute that Mr Nicol's disabilities would render him unfit for work as a lecturer.


[28]
As between the two employment consultants, I prefer the evidence of Peter Davies in so far as he expressed an opinion on the issues of contention about the Pursuer's future employment prospects. As indicated his views were consistent with the evidence of those in the area of work that Mr Nicoll had decided to pursue. He presented a rational basis for concluding that one could predict the career path on which the Pursuer would have been had the accident not intervened. Andrew Nicol on the other hand, appeared to minimise the impact of the accident on the Pursuer. He was even prepared to express a view on whether the Pursuer was now fit for work as a lecturer, a view that did not sit easily with the unchallenged evidence of Professor Rowley. At one point during his evidence he accepted that a sarcastic remark about the Pursuer's reputation in his report (page 5, paragraph 19) was unfortunate and suggested he would like to withdraw it. He focused on whether the Pursuer had told him about the Glasgow job as if that were more important than the fact that it was now undisputed that it had been made. He seemed to form a view that Professor Miles had overstated Mr Nicoll's abilities in comparison with his own by reference to Professor Miles' curriculum vitae. In doing so he failed to take account of the particular relationship between industry and academia in the field of textile design. Experience in industry had dovetailed with career success in academia for both Miles and Johnston. The personal statement in Professor Miles own curriculum vitae (7/1 pages 16-17) illustrates that. For all these reasons, I do not place any reliance on the views expressed by Andrew Nicol in this case.


[29]
In my opinion, taking the reliable evidence as a whole, it is clear that this accident occurred at a particularly unfortunate time for Mr Nicoll. He was approaching the end of a career break during which he had made a firm decision to pursue a combination of full time teaching and self employed design work. He was well qualified to do both. He might well have applied for and obtained a position at an educational establishment before Professor Miles approached him in August 2002. However, I cannot conclude on the evidence that such a post would have been available or that he would have so successfully applied. What is clear is that Professor Miles was quite determined to have him on the academic team at Bath Spa from 2002 if he was still available for work.

 

Claims

Solatium


[30]
Mr Clarke submitted that 65,000 was appropriate, with one half attributed to the past and interest at 4% per year applied thereto. He referred to The Judicial Studies Board Guidelines for the Assessment of General Damages, Chapter 6 (L)(b)(ii) (very severe leg injuries) and (M)(a)(i) (severe knee injuries). The Pursuer had sustained multiple injuries and was left suffering constant pain, an adjustment disorder, loss of vocation and related effect on life and lifestyle. There was unchallenged evidence that he was genuine, without any sign of overlay.


[31]
Mr Thomson submitted that 45,000 would be a suitable figure for solatium, again with interest on half at 4% per annum. He too referred to the Judicial Studies Guidelines Chapter 6, but included figures for slightly less severe leg and knee injuries - (L)(c)(ii) and (M)(a)(i) and (ii)


[32]
In my view, in light of the evidence about the nature of the accident, the severity of Mr Nicoll's multiple injuries, his ongoing disability and the impact of that on his quality of life, I consider that an appropriate award of solatium to be 58,000. Interest on half of that at 4% per year should be awarded.

 

Loss of Earnings


[33]
Mr Clarke submitted that the evidence clearly supported the contention that the Pursuer would have obtained employment as a Senior Lecturer in textile design within a short period. Professor Miles had effectively offered him a position in August 2002, which he would have taken up. The promotion prospects at Bath Spa University College were excellent. On the basis of a finding that the Pursuer would have taken up the post at Bath Spa and continued to earn some money in addition form his own design work, Mr Clarke provided figures for annual earnings to date. However, those figures assumed that the Pursuer would have been in a full time post as a Senior Lecturer by about June 2002, which did not accord with Professor Miles evidence. They were based also on Mr Nicoll achieving the position of Head of Department. Mr Clarke submitted that part time earnings from design work would have risen from 7,835 (gross) in 2001-2002 to 9,658 (gross) for the year to June 2008, based on the figures provided by Mr Davies. It was noted that such published information could produce a conservative result.


[34]
The figures produced for a Senior Lecturer and Head of Department at a University College such as Bath Spa (a pay scale slightly lower than a University) ranged from 41,515 gross for 2002-2003 to 59,122 gross for the year to June 2008. His total figure for past loss was 216,162, from which he accepted that a sum of 2,500 should be deducted, representing actual post accident earnings. On the balance he proposed interest.


[35]
So far as future loss was concerned, Mr Clarke submitted that a multiplier/multiplicand approach was the correct one. If I found that on a balance of probabilities Mr Nicoll would, but for the accident, now be in post as Head of Department at Bath Spa, it followed that he would remain in that post until age 65. Thereafter, some part time earnings from design work could be expected until he attained the age of 70. He proposed a multiplicand of 35,176 (the net equivalent of 50,000) and a multiplier of 4.59 on the basis of table 9 from the applicable Ogden tables. That gave a future loss from lecturing work of 161,458. For loss of design work income, Mr Clarke suggested a multiplicand of 8,692 (the net equivalent of 10,000) and a multiplier of 8.58 on the basis of table 11 from the applicable Ogden tables. That gave a future loss for design work of 74,577. Total future loss was therefore 236,035.


[36]
Adding together his claims for solatium and interest, page wage loss (under deduction of 2,500) and interest and future wage loss, Mr Clarke contended that a total award of about 574,376 was justified.


[37]
I gave Mr Clarke the opportunity to respond to Mr Thomson's argument that all that Mr Nicoll had lost was a chance of future work as a lecturer and that any calculation of loss of earnings should be a percentage of value to reflect the likelihood of Mr Nicoll obtaining the type of job he wanted. Mr Clarke drew attention to Robertson's Curator Bonis v Anderson 1996 SC 217 as authority for the proposition that the primary question in a case of this sort is whether the pursuer is entitled to an award for loss of future earnings or merely to an award for loss of employability. If it is established that loss of future earnings is justified, then calculation on a multiplier/multiplicand approach is the recognised method. In Robertson the approach was modified to some extent due to uncertainties based on the facts of that particular case, but the issue of principle here, as there, was whether or not this was a loss of earnings or loss of employability case. In the event that I was against him on the finding about employment at Bath Spa University College, Mr Clarke submitted that any loss of employability award would in any event require to be a significant one - " ... much more than tens of thousands of pounds".


[38]
Mr Thomson submitted that this was a loss of a chance case. A loss of a chance claim, he argued, is advanced on a more particular basis than a loss of employability claim. In the former reference is made to a particular job which the person has lost the chance to take up, whereas the latter refers to the more general position in the employment market. He submitted that the issue was whether the lost chance that Mr Nicoll would have worked full time as a lecturer was the loss of a chance which was speculative or a mere possibility, and thus of no value, or whether that chance was real or substantial and therefore of some value. If it was of value, an assessment had to be made of how real and substantial the chance was in order to assess that. Reference was made to authorities that support such an approach - Davis v Taylor 1974 AC 207, Doyle v Wallace 1998 PIQR 146 and Paul v Ogilvy 2001 SLT 171.


[39] The approach contended for was a two stage one. First, one calculates the maximum sum recoverable had the chance of a job been established as a practical certainty, or a 100% chance. In this case that would be the chance that Mr Nicoll would work as a lecturer. The second stage is to evaluate the chance or prospect that that would happen.


[40]
So far as the first stage was concerned, Mr Thomson argued that the maximum recoverable loss would be in the region of 20,000 net per annum, comprising 15,000 as a part time lecturer and 5,000 from part time design work. That took into account the purser's past experience, his lack of success at interview prior to the accident, the amount of time he might be expected to have been out of work and the likelihood that he would have worked part time and not gained promotion. On the assumption that he would have worked until he was 65, the multiplier would be 9.7 using the appropriate Ogden table. Using a multiplicand of 20,000 that would lead to the maximum value being 194,000.


[41]
On the second stage of evaluating the chance of prospect Mr Thomson suggested that 25% was the proper value. He argued that such a percentage was justified on the basis that the pursuer had not held a full time job for three years prior to the accident and there was little concrete evidence that he was seriously trying to find work. The loss of a chance was therefore valued at 48,500, which added to solatium and interest would produce total damages of about 99,819, say 100,000.


[42]
On the basis of the findings I have made in relation to the employment in which Mr Nicoll would have been engaged but for the accident, I reject Mr Thomson's assertion that this is a loss of a chance case. In my view Mr Nicoll is entitled to an award for loss of earnings. For future loss I accept that a traditional multiplier/multiplicand approach is appropriate, although in my view a little modification to that approach is required given the uncertainty over the level of future earnings from self employed design work.


[43]
So far as past loss is concerned, I accept that during the period 2001 to 2008 Mr Nicoll would have continued to engage in design work as a self employed consultant, both in association with the John Miles Partnership and on his own account. The initial trip he made shortly before the accident had, according to Professor Miles, been well received and one would expect increased sales over time. That said, the earnings from the first trip had been only a few hundred pounds. A view requires to be taken as to how quickly earnings would have increased and stabilised. The published information referred to by Mr Davies for such earnings is helpful in this respect but not determinative. I do not accept that in the year to June 2002 business would have built up so quickly that gross earnings of 8,000 would have been achieved. Professor Miles indicated that it was a gradual process and I conclude that only about 4,000 (gross) would have been achieved that year. Doing the best I can on the information available, I consider that thereafter, earnings of about 7,000 gross per annum in the year to 2003 would be likely from this source, rising only modestly, in light of his full time academic commitments, at the rate of 250 (gross) per annum, until stabilising at about 8,000 per annum from 2006-2007.


[44]
For past loss of earnings as a lecturer, I have taken part time earnings for the year from September 2002 to August 2003 and full time earnings thereafter. Again, assessing the information available as best I can, (and using the average year on year increases across the country for the last three years, as indicated by Peter Davies in his last report, 6/25) I calculate past loss of earnings as follows. The part time earnings for the initial period 2002 - 2003 are 18,000 gross, then full time earnings of 34,000 from September 2003 to August 2004, 35,000 to August 2005, 36,435 to August 2006, 38,002 to August 2007 and 39,408 for the year to August 2008, with that rate continuing at the present time. These are all gross figures.



[45]
A summary of past earnings to date appears as follows;-

Year

Design

Lecturing

Total (gross)

 

2001 - 2002

 

4000

 

0

 

4000

 

2002 - 2003

 

7000

 

18000

 

25000

 

2003 - 2004

 

7250

 

34000

 

41250

 

2004 - 2005

 

7500

 

35000

 

42500

 

2005 - 2006

 

7750

 

36435

 

44185

 

2006 - 2007

 

8000

 

38002

 

46002

 

2007 - 2008

 

8000

 

39408

 

47408

 


[46]
These are all gross figures. The net figures can be obtained by using tables provided in Facts and Figures, Robin De Wilde QC, 2007/2008 edition. These are:-

2001 - 2002 = 4,000,

2002 - 2003 = 18,709,

2003 - 2004 = 29,322,

2004 - 2005 = 30,217,

2005 - 2006 = 31,373,

2006 - 2007 = 32,606,

2007 - 2008 = 33,646.

The total figure attributable to past wage loss from both sources is accordingly 179,873 less the 2,500 actual earnings (the figure for which was not disputed by Mr Thomson) Interest falls to be added to the balance of 177,373 at one half of the judicial rate.


[47]
So far as future loss of earnings as a lecturer is concerned, in light of the lack of evidence supporting a clear ambition to run a department I cannot accept that a multiplicand of 35,176 is appropriate. On the basis of gross annual earnings as a Senior Lecturer of about 39,500, I conclude that the appropriate multiplicand is 28,922 and that the appropriate multiplier is 4.59 giving total future loss of earnings form this source of 132,752. It is also difficult to assess the loss of earnings from design work in the later years. While I have accepted that age is not a barrier to working in this field, it is not clear whether Mr Nicoll's work would have continued to develop well into the future. Various risks and uncertainties in the market and the level of competition would be factors that would determine whether he could sustain this additional work in the longer term. Further, while he would undoubtedly continue to pursue his interests as a designer beyond retirement from further education, it seems likely that again his earnings would be modest. In my view it would be more appropriate to look at this aspect broadly and I have decided to award a lump sum of 42,000 under this head. It seems likely that such part time earnings would fluctuate and would depend on the nature and level of the responsibilities held by Mr Nicoll in his full time occupation. Awarding a lump sum for this particular aspect of future loss takes account of such uncertainties.

 

Summary of Award

Solatium


[48]
58,000, with interest on one half from 3 June 2001 to decree at 4% per year and thereafter on the whole sum from decree until payment.

 

Past Wage Loss


[49]
177,373, with interest from 3 June 2001 to decree at 4% per year and thereafter on the whole sum from decree until payment.


Future Wage Loss


[50]
174,752 with interest at 8% per year from decree until payment.


[51]
Total Damages 410,125 plus interest as above.

 

Disposal


[52]
I shall have the case brought out By Order to discuss the precise terms of an interlocutor sustaining the first plea in law for the pursuer and awarding damages in accordance with the foregoing summary. I reserve, meantime, all questions of expenses.


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