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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacKenzie v HD Fraser & Sons [2000] ScotCS 281 (10 November 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/281.html Cite as: [2000] ScotCS 281

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[1] In this action the defenders admitted liability to make reparation to the pursuer for the results of an accident he sustained while attending to the security of his lorry. In his employment as an HGV driver he required, and still requires, to secure his load by roping tarpaulins from time to time. On 6 February 1997 one of these ropes broke; he fell to the ground and sustained serious injury to his left hand.

[2] At the date of the accident the pursuer was 44 years of age, having been born 18 September 1952. At the proof therefore he was 48 years of age. He returned to work in July 1997 and it was agreed that he had lost earnings of £4,750 inclusive of interest to date for the period of his absence. It was also agreed that any award of solatium should be attributed one half to the past and one half to the future and that the appropriate multiplicand for future loss, should that arise, was £303 per week or £15,750 per annum.

[3] The medical evidence in the case was given orally by Mr Geoffrey Hooper, Consultant Orthopaedic and Hand Surgeon who, in the course of his own evidence, made reference to reports made by Mr J. C. Semple, F.R.C.S. another eminent consultant hand surgeon. These reports were clear in relation to the injury and its effects and possible future effects. The pursuer sustained a complex fracture dislocation of the carpal bones of his wrist. That injury required open reduction and stabilisation with surgical wires which were not removed until 16 April 1997. The pursuer remained in plaster until 30 April 1997 and had physiotherapy treatment thereafter. Both specialists were surprised that the pursuer had returned to work so soon as he did. Mr Hooper described the injury as "a very severe injury". The treatment the pursuer received was appropriate but it was said that a wrist seldom, if ever, returns to a normal state after such a severe injury. Restriction of movement and discomfort were said to be the norm. Osteoarthritic changes were, according to Mr Hooper, "very likely" and would cause increased discomfort and restriction of movement. Mr Hooper did in fact find early osteoarthritic changes on an x-ray film taken shortly prior to his giving evidence. He thought these would progress and to such an extent that they would render the pursuer unable to continue his present work as an HGV driver. The only remedy for the increasing pain would be a completely fixed surgical fusion, but, if that occurred, it would be unlikely that the pursuer would be able to continue work as a lorry driver. It was not said that he would be disabled from all forms of work but that these would have to be lighter in nature.

[4] Mr Semple envisaged that the pursuer, by ten years from the date of his report, which was 18 October 1999, would probably have to give up HGV lorry driving. He thought that continuing as an HGV lorry driver after surgical fusion was a possibility rather than a probability.

[5] Mr Semple said this in his report;

[6] With that view, I wholeheartedly agree. The pursuer in the witness box gave an account of the type of pain and discomfort he suffers daily. He described it as being like a toothache. He said it was getting worse. He takes occasional painkillers to assist but said he was able to manage.

[7] His wife, when asked whether the pursuer was prone to complain, said that he was not but that she was able to tell when his wrist was giving him problems by his reaction and demeanour. She presented a wholly credible picture of a man who was reluctant to acknowledge his disability and regarded it as inappropriate to make much complaint.

[8] I accept that the pursuer has had and continues to have pain and will in the future require to withstand more frequent and more severe episodes of pain. That he is both stalwart and determined is evidenced by his return to work, far earlier than the specialists would have expected.

[9] In relation to solatium, I was referred to Kennedy v Lees of Scotland Ltd 1997 S.L.T. 510. In that case a lady broke the wrist of her dominant hand in a fall at work. It healed in good alignment but she was in intractable pain which would probably be alleviated by a fusion operation which would take place within about 18 months of the proof, which would be an operation about 41/2 years after the accident. In that case, his Lordship awarded £8,000 as solatium which would, after allowing for inflation amount to £8,800 today. I have considered that case but, with all deference to the judge, consider that the award was on the low side. I note that the Judicial Studies Board guidelines, in its latest edition, discusses wrist injuries similar to the present at a range between £10,000 and £15,000. Indeed, in the present case, counsel for the defenders accepted that £10,000 would be an appropriate amount whereas £15,000 was suggested for the pursuer. As a result of the pursuer's character and ability and the likelihood (which I mention below) that he will in fact work until he is completely prevented from doing so as a driver he will endure the painful effects of the injury without fusion for the upper limit of Mr Hooper's prognosis, (i.e. ten years from now). I consider that in the whole circumstances of this case, that £12,500 is the appropriate award for solatium.

[10] The major dispute between parties was the amount to be awarded for future loss of earnings, given the prognosis that the pursuer was very likely to require to cease his HGV driving occupation. Because of the character of the pursuer and having regard to what he has previously done, I consider that he will not cease that work for another ten years. Thereafter, I consider it to be unlikely that he will cease work altogether although what work he would or could do, its availability, and its rate of remuneration were not the subject of any satisfactory evidence. I propose to deal with that matter by way of a discount.

[11] The pursuer requires to be compensated for the loss of earnings he is likely to sustain between the age of 58 and 65. I do not consider that he will lose all earnings at that time although what he can earn will manifestly be significantly less than that of an HGV driver. His own evidence, not contradicted, was that but for the accident, he would have been able to work to age 65. On the other hand, earnings will probably increase for drivers by ten years time. The additional factor is that he will receive compensation now before he has actually lost anything. An allowance requires to be made for that. Had I been assessing damages on the traditional method prior to the uncritical adoption of the Ogden Tables in Wells v Wells 1999 1 A.C. 365 and its sequels in Scotland McNulty v Marshalls Food Group 1999 S.C. 195 and Wilson v Byeroy Ltd 2000 S.L.T. 1087, I would have regarded appropriate compensation at the figure of £45,000.

[12] However, since the Court is now, it seems, required to consider that, instead of checking that figure by reference to tables as was said in O'Brien's Curator Bonis v British Steel Plc 1991 S.C. 315, the tables should be the starting point. If one so operates it would be appropriate to adopt Table 13 in the circumstances of the present case, which gives a multiplier of 12.84. From that figure requires to be deducted the figures shown in Table A of the risk of unemployment and a risky occupation. I consider that an HGV driver is in the medium category of risk. There are also provided figures for geographical variations and those are given for Scotland. Thus when one assumes a retirement age of 65, the deductions in this case would be appropriately (.94, plus .04 plus .04) and applying those a multiplier of 11.04 can be arrived at. In the present case on the crude calculation of total loss of employment, that would produce a figure of £173,880. However, the tables themselves provide for a discount for deferred payment in Table 21 which here can be taken as .7441, giving a sum of £129,384. This figure however, requires to be further modified in relation to the prospects of obtaining other remunerative work. A discount of about 2/3 would be reasonable in my view. For the pursuer on the basis that the pursuer would cease HGV driving at age 57 it was suggested that a multiplier of five times the agreed multiplicand would be appropriate. The defenders suggested a multiplier of two. That would produce on the pursuer's calculation based on tables £78,750 and on the defender's £31,500. The proper figure lies between these extremes and having come full circle, I award £45,000.

[13] The final element in the claim was for loss of services under no. 8 and 9 of the Administration of Justice Act 1982. For the period in which the pursuer's wrist was wired and in plaster, he required some assistance from his wife. She indicated that he quickly recovered his independence but that she did initially have to assist with dressing and bathing, and more particularly driving the pursuer about and to and from hospital. The defenders submitted that this could only be calculated on the basis of about 30 hours at £3 per hour, a sum of £90. So far as the pursuer's own services to others were concerned, he was unable to do many things that he had done, certainly would be unable to do any decorating and would find it difficult to do handyman tasks and gardening, particularly digging. The defenders suggested that £500 was appropriate under this head. The pursuer led no evidence on which the Court could compute figures, seeking merely what was described as a token award of £3,000 to encompass both heads of claim and interest. Bearing in mind the strictures upon the approach taken in the Outer House in Clark v The Chief Constable Lothian & Borders Police 1993 S.L.T. 1299, I still considered it appropriate to make a reasonable estimate of the value of these items. One matter which might be said now to be within judicial knowledge would be the national minimum wage rate, which although it did not apply at the time the pursuer's wife rendered her services, can afford some guideline. It is £3.60 per hour. The precise number of hours must be a matter of impression but 30 hours is too low. Bearing also in mind the approach adopted in Grant v Lothian Regional Council 1988 S.L.T. 533 where a "jury award" of £250 was made for three weeks of comprehensive assistance, much in excess of that given here I consider that a similar sum would be appropriate today in respect of the Section 8 claim in the present action. So far as the Section 9 claim was concerned, I adopt the same approach and consider that the defenders' figure is on the lower side of reasonable, and on the whole matter, I propose to make an award inclusive of interest for past and future claims under these statutory headings of £1,250.

[14] I accordingly grant decree for the sum of £64,375 with interest at the rate of eight per centum per annum from the date of decree until payment. That total sum comprises of solatium of £12,500, interest on solatium of £875, past wage loss, as agreed, inclusive of interest, of £4,750; services claims inclusive of interest at £1,250 and future loss of £45,000.