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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 160
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PD737/05
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OPINION OF LADY
CLARK OF CALTON
in the cause
D.N.G.,
GUARDIAN TO N.A.M.,
AND S.V.M.
Pursuer;
against
J.M., A.M. AND
ALLIANZ CORNHILL INSURANCE PLC
Defenders:
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Pursuer:
Anderson QC, Thompson; Balfour and Manson
Defenders: Bolland QC, HBM Sayers
20 September
2007
Summary
[1] In this personal injuries
action, the pursuer is a solicitor now appointed guardian of N.A.M. (hereinafter
referred to as "the ward") and S.V.M. (hereinafter referred to as "the ward's
sister"). It was agreed that the
circumstances of the road traffic accident are not accurately averred in the
pleadings. As I understand the
circumstances of the case, it is not disputed by the parties that D.M.
(hereinafter referred to as "the ward's mother") was the driver of a motor
vehicle involved in an accident on 21 July 1999 in which both she and her
partner P.D. (hereinafter referred to as "the deceased") died as a result of
injuries incurred therein. Two other
members of the family of the deceased who were passengers in the motor vehicle also
died following said accident. Prior to
the accident, the ward's mother and the deceased lived together and the ward
was accepted by the deceased as a child of his family. The first and second defenders are the
grandparents of the ward and are sued in a representative capacity only. The third defenders are the insurers of the
vehicle which the ward's mother was driving at the time of said accident.
[2] It
was agreed by the parties that for the purposes of the present action only, the
road traffic accident which occurred on 21 July 1999 in which the deceased
and the ward's mother suffered fatal injuries, occurred as a result of the
fault and negligence of the ward's mother and, as a consequence thereof, the
defenders are liable to make reasonable reparation. Prior to proof the parties had settled some
of the disputed issues in the case. I
summarise the issues in dispute which required to be determined after proof in
paragraphs [8] to [10].
[3] The
four day proof in this case commenced on 26 June 2007 and was completed on 29 June 2007.
The Pleadings
[4] The
averments on behalf of the pursuer about loss of support and loss of services
are to be found at page 9B-10A of the record. The averments narrate:
"The first
pursuer also claims damages for loss of support and for loss of services. The deceased contributed financially to the
running of the household, and to the support of the ward. He was employed by Asda Stores Limited, .. . He provided services to the ward. He shared the responsibility of looking after
the ward with the deceased. As a result
of the accident, the ward has been cared for by her maternal grandparents, J.M.
and A.M., the first and second defenders, at their home. Their dates of birth are respectively 10 May 1942 and 19 February 1942. Their health is poor. Due to the ward having Down's syndrome, she
is difficult to look after. Her
behaviour can be erratic and demanding.
Her IQ is in the low normal-borderline range. She requires some assistance with her
personal care. She cannot be left in the
house on her own. She cannot use public transport
on her own. She needs to have her meals
made for her, and household tasks carried out for her. She is and will be unable to live independently. Her grandparents will be unable to look after
her indefinitely. It is likely that in
the future she will need professional care in a home of her home. She will need supervision and direction, help
with meeting her domestic needs and access to support as and when
required. She will need a Case Manager
to manage her affairs, liaise with other authorities on her behalf, supervise
and manage care workers and to monitor the adequacy of her care. The ward's life expectancy is reduced due to
her having Down's syndrome. It is likely
that she will live at least into her sixties.
But for the accident, the deceased would have been able to look after
the ward. He would have been able to
provide services to her."
[5] Despite
the terms of the pleadings, there was no attempt in evidence to found a case
based on the involvement of a case manager.
The witnesses and agreed facts
[6] On behalf of the pursuer,
evidence was led from (1) J.M., the first defender who is the maternal
grandfather of the ward, (2) William Russell Lindsay B.A., Ph.D.,
Dip.Clin.Psychol., F.B.P.S., C.Psychol. and (3) Mrs Verity Marshall B.A. M.A.
D.P.A. Evidence on behalf of the
defenders was led from (1) Jenny Lawrence of Tessa Gough and Associates, a
registered nurse and registered health visitor.
[7] At
the end of the proof, a joint minute of admissions no. 35 of process was
lodged. This agreed certain formal
matters about the medical records of the ward and information about the wages
of the deceased. It was agreed that the
sum of г25,000 exclusive of interest is the value of the ward's claim in terms
of section 1(4) of the Damages (Scotland)
Act 1976 (hereinafter referred to as the 1976 Act). It was also agreed that the likely life
expectancy of the ward is 63 years.
Issues in dispute
[8] The major dispute
between the parties related to an issue of statutory interpretation focussed on
the interpretation of section 9(3)(a) of the Administration of Justice Act
1982. This is relevant to the ward's
claim for loss of personal services of the deceased. Much of the time spent in submissions dealt
with this aspect of the case. In
addition, a decision required to be made on the basis of the facts in the case about
what is a reasonable sum for this claim by way of damages. There was disputed
evidence about the past care hours rendered by the deceased and likely future
care hours, if the deceased had lived.
[9] In
respect of the ward's loss of support claim, a decision about the percentage of
the deceased's earning to be allocated to the ward and any multiplier required
to be taken based on the facts established.
[10] The only outstanding issue in relation to the ward's claim in
terms of section 1(4) of the 1976 Act was the amount of the agreed sum of
г25,000 which should be allocated to the past for the purposes of the interest
calculations.
The evidence
[11] Much of the evidence was
background information about the pre-accident history of the deceased, the
ward's mother and the ward, their family circumstances and the post-accident
arrangements and future arrangements in respect of the care of the ward. Most
of the evidence was not in serious dispute.
In summarising the evidence, I draw attention to the main parts of the
evidence, insofar as I consider relevant to the issues in dispute.
[12] The only direct evidence
about the care of the ward from those involved in her care was given by
Mr J.M. I consider that the history is adequately and
correctly summarised by Mrs Verity Marshall in paragraph 2 of her
report pages 4-6, line 14. Mr J.M.
gave evidence consistent with this and accepted this section of the report as
an accurate history.
[13] This history was supplemented by Mr J.M. who explained that
after his daughter, the ward's mother, gave birth to the ward on 7 May 1984. They both lived with him and his wife until
about 1989. Although the deceased was
not the natural father of the ward, he had always acted since her birth as her
father. The ward thought that the
deceased was her natural father. She would
be very upset to discover that he was not.
Although the ward and her mother lived for some years with Mr J.M. and
his wife, the deceased was involved as a father throughout that period with the
ward. In about 1989, the deceased and
the ward's mother set up home with the ward some 200 yards from Mr J.M.
and his wife. There was never any
suggestion from either the deceased or the ward's mother that the ward would
not move to live with them as a family.
Mr J.M. and his wife continued to be involved in family life with the
ward. The ward usually spent from Friday
night until Sunday about noon at the
home of Mr J.M. During that time, there
was usually also family contact at the home of the deceased. On 27 May
1993, the ward's sister was born.
Her parents were the deceased and the ward's mother. No distinction was ever made between the ward
and her sister by the deceased. He cared
for them both and loved them both.
[14] Mr J.M. said that following the death of her mother and the
deceased, the ward was extremely distressed.
Her behaviour became very difficult which required significant extra
attention and care from Mr J.M. and his wife.
Mr J.M. was clear that if the deceased had survived, the deceased would
have looked after both the ward and her sister at his home. He thought it was likely that the deceased
would have remained in work. Mr J.M. stated
there was no likelihood that the deceased would not have cared for his children
in his own home. Mr J.M. accepted that
he and his wife would have done all they could to facilitate that. That would have included helping with care when
the deceased was at work. Mr J.M. also
accepted that it was likely that the ward would have continued to stay with
them during the Friday evening to Sunday noon
period. He considered that the ward
would have continued to reside with the deceased in the future in a family home
with the deceased.
[15] Mr J.M. gave the only direct evidence about the employment
and earnings of the deceased. The
information given was sparse. He
explained that the deceased worked in Asda mainly dealing with checkout at the
tills. He could not remember details about
how long the deceased had worked there.
He thought it was for longer than two years before his death. He also remembered the deceased working in a
shop. He said that the deceased was
usually in employment. The deceased
provided for his family. He lived a modest
life and rarely spent money on himself.
He did not drink or smoke. He was
diabetic. He did not drive a motor
vehicle. He was the sole financial provider
for the family. In the opinion of
Mr J.M., the deceased shared the childcare of the ward with his wife. The deceased bought presents for the children. Holidays were modest, about once a year, and
included trips to Butlins and the rent of caravans. The deceased was reasonably fit and in good
health.
[16] Mr Lindsay, spoke to his report no. 6/6 of
process. He expressed the view that the
grandparents were not as good historians as the case notes which he had
considered. Mr J.M. tended to give
a global picture of events. I would
respectfully agree with that opinion in relation to the evidence of Mr J.M. There was little attempt in evidence to
expand or qualify the report of Mr Lindsay.
It was conceded by senior counsel for the pursuer that much of the
report provided background information.
It did confirm the disturbed and difficult behaviour of the ward after
the death of her parents. Senior counsel
for the pursuer submitted that the most significant part of the report was paragraph 12.2
and paragraph 13.5. Mr Lindsay
in these paragraphs emphasised that it was highly unlikely that the ward would
be able to live her life without significant support. There was no real prospect of her leading an
independent life. He explained that she
operated as a young child in relation to life functions. Although she had certain life skills and
might learn other life skills, she had very significant retarded
development. She could be left alone for
only very short periods and only if she had been trained to cope with the
situation. When asked to consider what
the ward's reaction might have been if one of her parents only had been killed,
he considered that to be speculative but that her reaction would have been
different. She would have had more
support as a significant parent would have remained in her life. There was no cross-examination and no
competing expert evidence. I had no
difficulty in accepting the report and the evidence given by
Professor Lindsay.
[17] Verity Marshall
spoke to her report no. 6/11 of process.
There was some clarification and explanation of some of the figures
during examination-in-chief. In
particular, when asked by senior counsel for the defenders to depart from her
assumption that there would be no additional care by the grandparents of the
ward, she accepted that such a different approach would affect her estimate and
assessment. If Mr J.M. was involved,
for example, in picking the ward up to take her to places during the day and he
or his wife were involved in care of the ward for a period in late afternoon,
she conceded that the hours of care by the deceased might be reduced from 44 per
week to 34-35 hours. She explained
that in making her assessment she had not made any allowance for "care" in the
sense of an adult being present during the hours the ward slept. She accepted that this was necessary but
regarded it as part of the family situation.
The ward did not require an adult to get up and attend to her during the
night. In examination-in-chief she said
that paragraph 8.3 of her report was pure speculation and she was not
asked to deal with paragraph 8.4.
There was therefore no evidence from this witness of any probable care
arrangement based on some form of care arrangement outwith the family.
[18] In summary, this witness in her report made an assessment of
the number of hours of services provided by the deceased prior to the accident
during the time the ward was cared for in family with the deceased and his
wife. She then made an assessment of the
likely effect on the hours of services provided by the deceased in the event
that the ward's mother was no longer able to care for the ward because she had
died as a result of the accident. That,
in her opinion, increased the number of hours of services likely to have been
provided by the deceased. That
assessment in her written report was on the basis:
"it is reasonable
to assume that, had he survived alone, the deceased would have continued to
care for his daughters in their mother's absence. In such a situation, assuming also that no
additional input were to be requested of the grandparents beyond their
established pre-accident level of input, then the deceased's involvement in
meeting the ward's needs on his own would require to be equivalent to input
provided for her by the deceased's wife and the deceased jointly when they were
still alive (page 16 of 6/6 of process)".
To the various hourly figures at
various periods she applied various rates explained in the report to provide a
total cost of care. In the addendum, at
page 26, she carried out a similar calculation over a period based on the
figure of 9.8 hours per week which was her estimate of the average hours
spent by the deceased on providing services to the ward prior to the date of
the accident at a time when the ward's mother, according to her estimate, was providing
the majority hours of care.
[19] In cross-examination, two main points were challenged. Firstly, the assumption that there would be
no additional input from the grandparents and secondly, her failure to give
sufficient weight to the effect on care of the working hours and pattern of
work of the deceased. There was also
some challenge to the type of care of a more intimate nature which it was
suggested that the deceased might not appropriately give. Mrs Marshall conceded that she had made
assumptions and estimates because that was the nature of the exercise. She accepted that if there was additional
input from the Mr J.M. and his wife that would reduce her assessment of the
number of hours. She considered that the
working hours of the deceased might change after the accident but conceded that
she did not know whether the employer would have accepted that. To a large extent, any additional input of Mr J.M.
and his wife might reflect the working pattern of the deceased. She considered that on that hypothesis they
would "fill in" when the deceased was not available. Although she conceded in cross-examination that
certain care by the deceased might be inappropriate, in re-examination she
reconsidered this. She explained that
the care and supervision involved was not necessarily physical but could be
verbal in relation to toileting procedures and that the level of intimacy
involved in other matters of personal care was not great. She was not prepared to make any discount in
respect of this.
[20] Evidence was led on behalf of the defenders from Jenny Lawrence
of Tessa Gough and Associates. This evidence
was very short. In summary, she spoke to
her report 8/2 of process. She was
instructed on behalf of the defenders to prepare a report about the services
past and future which both the ward and her sister have been deprived of as a
consequence of the death of the deceased.
Her evidence focussed on the deceased's services in respect of the ward. She accepted that in preparing for the proof,
she had no documents other than the pleadings and that all the factual
information which she narrated in her report was given to her by Mr J.M.
and his wife in the presence of the ward and her sister. The ward and her sister also contributed
information and corrected information during the course of the interview. She explained that in order to assess the hours
of services, she worked out what tasks needed to be done for the ward. She accepted that some of the supervisory day
to day care could be done while the parent was carrying out other tasks. She made no assessment of hours or cost for
care at night because the ward did not need "hands on care" during that period.
[21] She assessed the deceased's services during the period 21 July 1999 to end
August 2002 (which was the end of the ward's period at school) as
11 hour per week for supervision and assistance. Thereafter the ward left school and went to a
day centre five days a week. She
was also provided with some additional support from social and other
services. For the period from 1 September 2002 to end
June 2007, she assessed the period at 9 hours per week as the time
the deceased would have provided supervision and assistance for the ward. In addition she assessed that he would have
provided assistance with domestic tasks which would have benefited the whole
family for 4 hours per week. In
appendix A of the report, she set out the total hours at various periods
applying rates of the National Joint Council for Local Government Services at
the standard hourly rate paid at spine point 8 equating to the grade paid
to home carers. She said that she had
selected this rate as it was used by many local authorities reflecting national
agreed rates.
[22] Cross-examination by senior counsel for the pursuer was
brief. The main point brought out in
cross-examination was that Jenny Lawrence assessed what was done by the
deceased before the accident and she made the assumption that this is what the
deceased would have done post-accident into the future. She accepted that this was plain from her
report at pages 7 and 8 where there is clear reference to her proceeding
on the assumption that post-accident the deceased's wife would have continued
to have been involved in the majority of the care of the ward. She accepted that this was a fiction but
explained that she was concentrating on the services provided pre-accident by
the deceased and assuming that the same level of services would be provided
post-accident. She did take account of
some post accident factual matters, such as the period when the ward required
additional services because of a broken leg and a reduction in the hours of
services because she considered that some additional third party support in
transport and social work assistance would be provided. These were matters she included in her
report.
Submissions by Counsel
[23] Senior council for the
pursuer and defenders provided written submissions which formed the basis of
their oral submissions (numbers 33 and
34 of process).
[24] Senior counsel for the pursuer set out the relevant legal
framework in relation to loss of support and loss of services. In relation to loss of support, there was no
dispute about the relevant legal provisions.
It was also not disputed that the ward was a relative entitled to
damages for loss of services by the deceased under the 1976 Act and that
she was entitled to damages under section 9 of the Administration of
Justice Act 1982. The dispute
between the parties was about how that section was to be interpreted and
applied in the present case.
[25] Senior counsel for the pursuer submitted that the critical
question is what services are envisaged by section 9 of the
1982 Act. He submitted that the
interpretation of the wording of section 9(3)(a) was not without
difficulty. Neither counsel were able to
provide any relevant case law in relation to the interpretation of that subsection. No difficulties of interpretation were
suggested to arise in relation to the remaining parts of section 9 in the
circumstances of this case. Senior
counsel for the pursuer submitted that the proper approach to the
interpretation of section 9(3)(a) is to assess what personal services the
deceased rendered or would have been expected to have rendered to the ward,
were the deceased still alive, and still in a position to render services of
this nature. He submitted that the court
has to make an assumption or assessment as to what the deceased would have done
in relation to personal services if he had remained alive.
[26] In response, senior counsel for the defender conceded that
personal services actually rendered before the occurrence of the accident would
be covered by section 9(3)(a) of the 1982 Act if the court concluded
that the deceased, but for his death, would have continued to provide them. Senior counsel for the defenders did not
dispute that the ward in the present case should receive damages for the type
and level of personal services which the court finds were provided by the deceased
prior to the accident. In relation to
services post death, he submitted that as a matter of law and in accordance
with the evidence in the present case, an increase or extension in services by
the deceased due to the death of the ward's mother was not encompassed by the
terms of the subsection. In oral
submissions I understood him to concede that to submit the restriction was a
matter of law went too far. He accepted
that evidence might exist in some cases to satisfy the terms of the
subsection. In interpreting the
subsection, he submitted, that the words "might have been expected to have been
rendered by the deceased were qualified in the sub-section by the words 'before
the occurrence of the act or omission giving rise to liability". He submitted that the expectation of the
deceased has to pre-date the act or omission giving rise to liability. For example, where there was evidence that a
deceased prior to death, had anticipated or intended to provide personal
services which he had not yet provided before his death, such services could be
covered by the section. But there was no
such evidence in the present case and therefore no factual basis on which the
court could conclude that the terms of the subsection were satisfied. He
submitted that it was not disputed that because the ward's mother was the
wrongdoer, the ward has no claim for the personal services which the mother had
provided to the ward prior to the accident.
He submitted that it was not within the terms of the legislation to
allow an extended claim for the deceased's services which took account not only
of the type and extent of services which the deceased provided prior to the
accident but also took account of the fact that he would be likely to provide
additional services, if he had survived, because his wife was dead. He submitted that this would allow "a back
door recovery" for services provided by the wrongdoer mother.
Discussion
[27] In dealing with the issues relating
to section 9 of the 1982 Act, it may be helpful to set out the terms of
section 9 of the 1982 Act.
"9-(1) The responsible
person shall be liable to pay to the injured person a reasonable sum by way of
damages in respect of the inability to render the personal services referred to
in subsection (3) below.
(2) Where the
injured person has died, any relative of his entitled to damages in respect of
loss of support under section 1(3) of the Damages (Scotland) Act 1976 shall be
entitled to include as a head of damage under that section a reasonable sum in
respect of the loss to him of the personal services mentioned in subsection (3)
below.
(3) The personal
services referred to in subsections (1) and (2) above are personal services-
(a) which are or
might have been expected to have been rendered by the injured person before the
occurrence of the act or omission giving rise to liability.
(b) of a kind
which, when rendered by a person other than a relative would ordinarily be
obtainable on payment, and
(c) which the
injured person but for the injuries in question might have been expected to
render gratuitously to a relative."
[28] In my opinion, section 9(3)(a) of the 1982 Act directs the
court to form a view and reach a decision about the matters set out in that
section. It is therefore for the court
to consider the evidence in the case relating to the period before the delict
occurred to reach a factual conclusion about what personal services "are or
might have been expected to have been rendered by the injured person before the
occurrence of the act or omission giving rise to liability". In my opinion, there is nothing in the
section to imply that the section is directing the court to ascertain what the
deceased might have expected at a date before the delict. For example, there might be evidence in a
case that a deceased had prior to death planned to take on the full care of a
child. But viewed objectively by the
court taking account of the evidence of all the circumstances, the court might
conclude that such an intention or plan was never likely to occur if the
deceased had survived. I consider that
the section directs the court to come to a decision (based on evidence of what
happened before the act or omission giving rise to liability) as to what
personal services the deceased rendered.
The court must also come to a decision based on such evidence about the
personal services which might have been expected to have been rendered by the
deceased.
[29] In this case it is not disputed that, as a result of the act or
omission giving rise to liability on the part of the ward's mother the deceased,
had he lived, would have been in the position of a single parent. In that situation, the task of the court in
my opinion, is to consider the evidence relating to the period before the delict
and form a view objectively about what personal services the deceased did
render and what personal services he might have been expected to have rendered
in such a circumstance. Much will depend
upon the evidence in particular cases.
In some cases, such as the present case, evidence about what services
the deceased rendered before the delict may help the court come to a decision
about what services he might have been expected to have rendered in the future,
had he lived. Evidence about the
deceased's intentions in the event of a catastrophic event might be relevant in
a particular case. But I am not
satisfied that where there is no such evidence, the court is precluded from
reaching a conclusion that the deceased would have taken on additional or new
services in the event that he became a single parent as a result of the delict. The court would of course require to be
satisfied on evidence considered by the court to be relevant and
persuasive. I also considered carefully
the issue raised by senior counsel for the defenders about a "backdoor
claim". In my opinion, this submission
is misconceived. If there is evidence
acceptable to the court which demonstrates that a deceased, if he had lived,
would have been left as a single parent as a result of the occurrence of the act
or omission giving rise to liability and if the court is satisfied that the
deceased might have been expected in such circumstances to have rendered new, additional
or extended services, there is nothing in the terms of the legislation to
prevent the court taking account of that and reflecting that in damages. The
award is not reflecting damages for the loss of services of the parent who was
responsible for the delict. The court is
assessing the evidence which bears upon
the services of the other parent. In my opinion, therefore, the proposed approach
to interpretation of section 9(3)(a) of the 1982 Act put forward on behalf of
the defenders is not correct.
[30] In relation to the evidence about past care and likely future
care, counsel for the defenders did not submit any reasons to suggest that the
evidence of Mr J.M. was not credible.
I had no hesitation in accepting him as a credible witness. He was not, however, able to give a very
clear detailed history. He plainly had
done so much for the ward and so much had happened, that the details were
difficult for him to explain. That was
understandable in all the circumstances.
I accept that Mr J.M. and his wife have made great effort to care for
the ward and her sister at great personal sacrifice and cost. They have done so in the past and continue to
do so despite the health problems from which they both suffer. I was very favourably impressed by their
caring attitude for which they should both be commended. At the time of the proof Mr J.M. and his
wife were both aged 65 years. They
have great affection and concern for the ward who plainly is a person who inspires
such affection. It was not disputed
that, prior to the accident, the deceased was a caring and involved father and
that he was very attached to the ward and her sister who themselves had a close
relationship. The deceased was very
family orientated and often took the ward out with him on Sunday outings. I consider that it is inherently improbable,
despite the contrary submission by counsel for the defenders, that the deceased
would not have wished to have the comfort and affection of the ward living in
his own home. I accept that it is likely
that the ward would have remained at the centre of the deceased's life after
the accident. I also accept that there
would be some difficulties for the deceased in arranging care and also
fulfilling his work obligations. But
these difficulties were certainly not insuperable and would be the type of
difficulties faced by many single parents.
I consider that the probable situation of the deceased would have been
that he would have had very involved grandparents willing to assist him
particularly when he was working. I had
no difficulty in concluding that prior to the accident, the ward's mother as
the non-working partner, carried out a more substantial part of the care of the
ward but nevertheless I am satisfied that the deceased played an active and
important part in her joint care.
[31] The evidence in this case, in my opinion, points clearly to the
conclusion that the ward would have remained at home living with the deceased
and her sister if her father had not died.
I think the grandparents and the deceased would have worked together to
ensure as much stability for the ward as possible. I am satisfied that it is likely the deceased
would have continued to work and that as a result the grandparents of the ward
would have provided additional care.
When Mrs Marshall took this into account she assessed the likely hours
of care which would have been provided by the deceased as approximately 34 to
35 hours. She impressed me as a witness
who approached her task with care. I
noted that her assessment of the pre-accident hours of care of the deceased are
modest and in line with the assessment made by Jenny Lawrence. In making her assessment she made no
allowance for night care. This was also
in line with the approach adopted by Jenny Lawrence. Jenny Lawrence, on the basis of instructions,
did not attempt to carry out an exercise in which she factored in additional
care by the deceased. There was,
therefore, no competing figures for care based on the type of exercise which
Mrs Marshall carried out. It was not in
dispute that it was likely that the ward would continue to have spent a period
at weekends from Friday evening to Sunday lunchtime with her grandparents. I am also satisfied that after the ward left
school, some modest provision of services are provided by public services.
[32] I am of the opinion that a broad approach to the assessment of
the evidence is necessary. I see no reason not to accept the base figure
of 34 hours per week given by Verity Marshall. No significant challenge was made in cross
examination to this figure or to the rate of earnings which she adopted. Although Verity Marshall and Jenny
Lawrence adopted different earnings figures based on different rates, the
result of applying the different rates over a lengthy period was not great. In these circumstances I am content to adopt
a broad approach and to proceed on the basis of the evidence given by Jenny
Lawrence. On her approach, her
assessment represents less than 6 hours care per day by the deceased even if
Saturday is entirely excluded. An even lower daily average is achieved if the extra hours on Sunday and holidays are
included. I consider this a modest and
reasonable figure in the circumstances. I consider that the rates should be
discounted. The rates relied on by both
witnesses, reflect the rates which would be paid to a professional carer in an
employment situation. That does not
apply to the deceased. Taking the matter
broadly I consider that it would be appropriate to discount the rates by 20%
taking into account that the deceased would have been providing most of the
care in his own home and not in an employment situation.
[33] There was some difference in approach between senior counsel
for the parties about the multiplier to
be applied. Neither party disputed that a
multiplier was appropriate. Senior
counsel for the pursuer submitted that a multiplier of 12.65 (20.57 less 7
years 11 months) was appropriate. Senior
counsel for the defenders asked for a net multiplier of 10.25 taking into
account the various uncertainties about retiral age, job security and the state
of health of the deceased. In my
opinion, the defenders are correct in submitting that there are uncertainties
albeit the uncertainties relied on are perhaps more relevant to loss of
support. There are however, in my
opinion, many uncertainties in relation to the future care situation. Although I accept that the deceased would
have been likely to do his best to care for the ward, he was at the time of his
death a relatively young man whose own personal circumstances might
change. Many changes might have an
impact on the deceased's wish and ability to care for the ward until he was
65. I consider that the multiplier put
forward by the pursuer does not adequately reflect the various uncertainties
and potential changes which might occur and impact upon the level of services
provided by the deceased in the future.
I consider that a multiplier of 10.25 proposed by senior counsel for the
defenders is appropriate, even generous, in all the circumstances.
Loss of support
[34] It was agreed that the annual net wage of the deceased prior to
his death was г5720. Senior counsel for
the pursuer sought one third of that sum as annual loss of support. Senior counsel for the defenders submitted
that household outgoings would account for a relatively large portion and that
one-third of the balance would be appropriate.
The approach of senior counsel for the pursuer is, in my opinion,
unrealistic. The deceased as a working
adult, even with a modest lifestyle, would be likely to require and consume a
greater proportion of his salary for his own lifestyle than the amount proposed
by senior counsel for the pursuer. I
consider that the ward should be allocated a quarter of the net wage loss in
respect of loss of support. I consider
that a multiplier of 10.25 proposed on behalf of the defenders is appropriate
to take account of uncertainties including retiral age and possible periods of
part-time employment or unemployment.
Loss of society.
[35] I accept from the evidence of Mr J.M. and William Russell
Lindsay that the ward had major distress and suffering in respect of the death
of the deceased immediately after the accident and for some years
thereafter. By the date of the proof,
the ward's grief and suffering was not so intense. But she still missed the deceased. Her agreed life expectancy is 63. In these circumstances I consider that the
pursuer's submission that interest should run on three quarters of the agreed
sum of г25,000 is excessive. In my
opinion the appropriate figure on which interest should run is two thirds of
г25,000.
[36] As discussed with senior counsel for the parties, the case will
be put out by order to enable various calculations based on my findings to be
made and approved by the court.
