07 January 2016

Our look back at the changes that 2015 has brought to litigating personal injury claims in Scotland including some of the significant and interesting Scottish personal injury decisions from 2015 and what to watch out for in 2016.

Fatal Claims

Claire Anderson & ors v Brigg Brae Garage Ltd Jury Trial [2015]

2015 saw the highest award ever made by a Judge or a Jury for loss of society. In the case of Claire Anderson & ors v Brigg Brae Garage Ltd the deceased was killed in an accident at work when he lost control of a quad bike and crashed in to a wall. The deceased did not have permission from his employers to use the vehicle but it was heard that employees often did so without challenge from the employers and the keys were easily accessible. Liability was established against the employers with 20% being attributed to contributory negligence. When assessing the level of awards on a full liability basis, a civil Jury considered the deceased's 35 year old partner’s claim to a have value of £140,000 (£20,000 attributable to the past), his 56 year old father’s claim to be worth £80,000 (£10,000 to the past) and his 3 year old daughter’s claim to have a value of £80,000 (again £10,000 attributable to the past). The deceased’s daughter was only 6 weeks old when her father died.

The award to the deceased’s spouse of £140,000 is the higher than any previous awards made by any jury or judge for loss of society. Equally, the award to the deceased’s baby daughter was at least twice that of recent awards to children which we have seen range from £27,500 to £40,000. It has to be said, however, that there were noted to be special circumstances in this case due to the fact that the deceased died when his daughter was only 6 weeks old. For the father’s award, in the last comparable case of Currie, a Judge awarded the parents of a 25 year old man £42,000 each, almost half of the award made in this case. The award in Currie was upheld by the Inner House.

The awards emphasise the ever present gulf that continues to exist between awards made by judges and juries and the uncertainty looks likely to persist in valuing fatal awards.

Martha Young v Arthur MacVean [2015] CSIH 70

Hot on the heels of the Anderson v Brigg Brae Garage decision came the Inner House Appeal of Martha Young v Arthur MacVean. bto represented the defender and reclaimer both at first instance and in the appeal to the Inner House. In this case three judges in the Inner House agreed to overturn the decision at first instance which had awarded the pursuer almost £250,000 in damages and reaffirmed the position on secondary victims as per the decision of the Supreme Court in, amongst others, the Hillsborough cases.

The facts of the case are tragic. Mrs Young’s 26 year old son was killed on his way to the gym. A vehicle, driven by the defender, mounted the kerb and struck him. Mrs Young had arranged to meet her son at the gym and saw the damaged car. A key point is that at that stage, on seeing the scene of the accident, she did not know that her son had been involved. In fact, she felt relieved that her son could not drive and she knew that her daughter was at home. However, during her gym class, she realised that she had several missed calls from her daughter and she heard that a young boy had been killed outside the gym. When she realised her son had not arrived at the gym, she became increasingly hysterical most notably when the death was confirmed to her by police officers shortly afterwards.

Two propositions were advanced by the defender and reclaimer. Firstly, that the judge at first instance had erred in law in holding that Mrs Young was a secondary victim and secondly that the award made for “loss of society” was excessive.

In support of the first proposition, the defenders argued that the evidence was such that Mrs Young had an initial feeling of relief which later gave way to increasing concern and worry. She did not suffer “nervous shock” as a result of viewing the aftermath of the event in which her son was killed. The relevant injury to the secondary victim must be caused by shock as a result of what she perceived with her own senses. The injury cannot be as a result of being told about the death which is what happened here. This argument was accepted by the Inner House and the decision at first instance was overturned.

Although the pursuer failed in her claim as a secondary victim, she is still entitled to an award for the distress, grief and loss of society suffered as a result of the death in terms of the Damages (Scotland) Act 2011. Mrs Young was awarded £80,000, which the defenders argued was excessive. On reviewing the decision, one gets the impression that had Lord Brodie been the judge at first instance a lower award would have been made. Whilst the argument gave the judges “long pause for thought”, they were reluctant to interfere with the award made by the judge at first instance without the benefit of hearing the evidence first hand. The appeal court acknowledged that “no sum of money can ever compensate for the death of a close relative”. They also acknowledged that each case is fact sensitive and they sought to distinguish the award to Mrs Young in that the loss of the deceased had a “special significance” due to the fact that she had also suffered the untimely loss of her husband in a helicopter crash in the North Sea.

The decision of the appeal court has reaffirmed the position on secondary victims and should, for now at least, avoid the floodgates being opened in other cases of this type. Regarding the quantification of damages in Scottish fatal claims, as no further guidance has been provided, the position remains uncertain.

Employer’s Liability

Kennedy v Cordia Services [2014] CSIH 76

A judgment is awaited from the Supreme Court in this case, following an appeal hearing which took place in October 2015. The pursuer was employed by the defenders as a home carer, visiting clients in their homes in order to provide personal care. On 18 December 2010, she slipped and fell whilst walking on a snow-covered path to access a client's house. She injured her left wrist. The defenders were aware of the risk of employees slipping in poor weather conditions and had carried out risk assessments, but they had not considered whether personal protective equipment (such as non-slip attachments for footwear) could prevent or reduce the risk. The Pursuer relied on the Personal Protective Equipment at Work Regulations 1992 and the Management of Health and Safety at Work Regulations 1999, and also claimed that the employers were negligence at common law.

Evidence was given at Proof by Mr Lenford Greasly, a health and safety expert instructed for the Pursuer. His positions was that non-slip footwear attachments were readily available and would have reduced the risk. He also stated that other local authorities had issued attachments to their home carers, and spoke to the purpose, design and efficacy of the attachments. The Lord Ordinary found the defenders liable.

The Defenders appealed, and the Inner House allowed the appeal. It considered that Mr Greasly's evidence was inadmissible in certain respects, that the Lord Ordinary erred in law in finding the defenders liable under the 1999 Regulations, that the 1992 Regulations were not engaged (and if they were the risk was adequately controlled), that there was no breach of duty at common law, and that in any event the Lord Ordinary was not entitled to find that a breach of statutory or common law duty caused the accident. The court commented that there was no “inherent hazard” involved in the Pursuer’s work and that the risk to which the Pursuer was exposed was “an ordinary risk arising in a public place from the ordinary facts of life in Scotland.” The Inner House also determined that Mr Greasly did not have specialised knowledge or experience of the issues under consideration and that his evidence did not offer any more than a “reasonably inquisitive and intelligent person might have discovered by looking material up on the internet.” Accordingly, his evidence was held to have been largely inadmissable. The pursuer appealed the Supreme Court on a number of grounds and the Supreme Court’s decision is now awaited.

Although with the passing of the Enterprise and Regulatory Reform Act 2013, the Regulations relied upon by the Pursuer in this case no longer give rise to civil liability in the event of a breach, it is clear that the claimants’ solicitors will argue that a breach of the Regulations is indicative of common law negligence on the part of an employer, because an employer exercising reasonable care would comply with his statutory obligations. The Supreme Court’s decision on liability could have widespread implications for the home care industry, and indeed all other industries which require workers to undertake work away from the employer’s principal place of business. The Supreme Court’s approach to determining when a witness can be treated as an expert may also have widespread significance across the whole spectrum of litigation.

Christopher Somerville v Harsco Infrastructure Limited [2015]

This was a Sheriff Court action in which the pursuer appealed the sheriff's decision on the central issue at proof – whether the defenders were vicariously liable for the actings of their employee, Stanley Smith.

The facts of the case were not in dispute. Quantum was agreed in the sum of £1,200 inclusive of interest. Mr Smith was employed by the defenders as a Yard and Transport Manager. On 10 June 2013, Mr Smith was involved in a “good humoured” exchange with another employee of the defenders, Mr Bazela. The pursuer heard the exchange, but was not involved in it. As Mr Smith walked away, Mr Bazela shouted something in continuation of the light-hearted exchange. Mr Smith responded saying words to the effect 'I will teach you to speak to your manager like that'. He picked up a claw hammer and threw it towards Mr Bazela. The hammer struck the pursuer causing him to be injured. The hammer belonged to the defenders and was used by their employees in the yard.

Mr Smith did not intend to throw the hammer at the pursuer. He admitted fault to his employers and was dismissed for an act of misconduct.

The pursuer’s position was that the sheriff had given insufficient weight to the entire incident, especially the words used by Mr Smith - “I will teach you to speak to your manager like that”. He argued that this comment was designed to demonstrate Mr Smith’s superior position with the defenders, and highlighted that the incident occurred squarely in the course of employment.

The pursuer acknowledged that there must have been some connection between Mr Smith’s employment duties and the act of throwing the hammer, and relied upon the comment of Mr Smith as an assertion of his dominant role as a senior employee.

The defenders argued that this was not a situation where Mr Smith was exercising his managerial function, but was an incident arising from horseplay. There was no true connection between the wrongful act and Mr Smith’s employment.

Sheriff Principal Stephen distinguished the authorities in which an employee, in using violence or overstepping the mark, is engaged in something connected with his employer's business, and therefore the employer may be vicariously liable, from those in which an employee is engaged in “banter” and for which the employer was not vicariously liable. Sheriff Principal Stephen considered it well settled that it is not enough that the act occurred during working hours whilst using the tools provided by the employers. Mr Smith's actings did not further the employers’ aims. He was simply engaging in light hearted banter. In refusing the appeal, Sheriff Principal Stephen held that it could not be said that Mr Smith's reckless act occurred in the course of his employment.

Procedural Issues

Moran v Freyssinet Ltd [2015] CSIH 76, IH (Extra Division)

The Inner House of the Court of Session had little sympathy for a Defender who had deliberately failed to obtemper either the spirit or the letter of the court rules. They had failed to lodge a valuation of claim as required by the Rules, had lodged only skeletal Defences and had not lodged any productions or a List of Witnesses in advance of the Proof hearing. The judge who was due to hear the Proof granted a motion by the Pursuer for decree against the Defender by default, and awarded damages at half the sum claimed by the Pursuer in his valuation of claim.

The Defender appealed, but the Inner House upheld the Lord Ordinary’s decision as it was within the reasonable exercise of his discretion. The Inner House commented that the conduct of the Defender had undermined the proper functioning of the court rules and it was appropriate for the court to mark its disapproval of such conduct. This was a case where the court was clearly not prepared to accept any suggestion that the Defender’s failures had been inadvertent. The fact that no steps had been taken to address the situation, even by the time of the pre-trial meeting, suggested a deliberately cavalier approach to compliance with the rules of court, and the court was clearly mindful of the wider public interest in enforcing compliance with court rules, rather than simply whether justice was done as between the two particular parties.

Provisional Damages

Boyd v Gates (UK) Ltd [2015] CSOH 100; 2015 SLT 483

In the case of Boyd v Gates, the Pursuer raised an action for damages against three previous employers following his developing of an asbestos related condition. The action was settled extra-judicially with provisional damages from all three defenders being agreed at £6,300. The pursuer also reserved the right to apply to the court for further damages if he develops one of three specific conditions being “diffuse pleural thickening, lung cancer or mesothelioma”.

The relevant legislative basis for making an award of provisional damages is section 12 of the Administration of Justice Act 1982 which empowers the court to make an award of provisional damages and at a subsequent date to make an award of further damages within a specified period if he develops a specified disease or suffers a deterioration in his condition. Although it may be agreed between parties that a pursuer should receive a provisional award of damages, the right to make an application for further damages can be preserved only by the court making an order to that effect under section 12.

The extra-judicial settlement was reached between parties, however, on agreeing the terms of the Joint Minute, the second defenders refused to accept the wording which had the effect that the defenders would not put the pursuer to proof on liability in the event that he makes an application for further damages if he develops any of the three conditions. The pursuer maintained that an offer by a defender to settle a case by way of a payment of provisional damages impliedly carries with it an admission of liability by that defender.

The Pursuer’s arguments were favoured, with the Court agreeing that the payment of provisional damages brings an implied admission of liability. Lord Uist opined that “section 12 is a scheme setting out the procedure to be followed in making awards of damages in certain circumstances and it operates only once the issue of liability has been determined or agreed. An offer by a defender to make a payment of provisional damages therefore inherently carries with it an admission of liability.”

Motor / Quantum

Adam Wagner v Thomas Grant & Arla Foods [2015] CSOH 51

Another notable case reported in 2015 was the Outer House of the Court of Session’s judgment in Wagner. The case was fought on liability and the cost of prosthesis alone. All other heads of claim were agreed in advance of the Proof. The Pursuer was a 22 year old learner motorcyclist who, late on the evening of 27 August 2009, collided with a milk tanker positioned across a road in the hours of darkness. The milk tanker had been carrying out a reversing manoeuvre into a farm, when the Pursuer’s motorcycle struck its rear offside.

The Pursuer’s proposition was that the tanker had been unlit and he could did not observe the tanker until moments before the collision. The Court rejected that proposition, accepting the First Defender’s evidence that the tanker was fully lit and could be observed from some distance away. However, the Court held that the execution of the reversing manoeuvre in the hours of darkness created an unnecessary danger to other vehicles. In the Lord Ordinary’s view, the manoeuvre could have been carried out in daylight or by a smaller vehicle which would have been able to execute a normal right hand turn into the farm road.

One point of interest emerging from the case is that the Lord Ordinary followed his previously unreported decision in Cronie v. Messenger, 21 October 2005. This judgment was not known about until the final day of submissions, when it was referenced by the Lord Ordinary. The Defenders’ proposition was that the Judge ought not to be bound by his previous decision which, they contended, could be distinguished on the facts from Wagner. The Lord Ordinary’s judgment highlights that he saw no reason not to follow the approach he had previously taken. Accordingly, he apportioned liability on the same basis as the Cronie case, 60/40 in the Pursuer’s favour.

An interesting point is that there appears to have been no evidence led by the Pursuer to support the Lord Ordinary’s findings in fact. It is our understanding that the Defenders are appealing the judgment on that basis, together with the fact that the Lord Ordinary erred in law in his apportionment of liability.

The other issue in this case was the cost of prosthesis. The Pursuer’s expert evidence valued that head of claim at over £1.1m. A multi-limb approach was put forward by the Pursuer’s expert. The cost of this over a 5 year period amounted to £149,564. In contrast, the Defender’s expert recommended that the Pursuer ought to be supplied with two general purpose prostheses supporting a moderate to high activity lifestyle. On the Defenders’ evidence the cost over a 5 year period totalled £20,000. The Court was not persuaded that the recommendations of the Pursuer’s expert were necessary or reasonable given the Pursuer’s expert’s acceptance that his recommendations amounted to the ‘Rolls Royce’ of prosthetic rehabilitation.

It remains to be seen whether the Inner House will be persuaded that the Lord Ordinary’s rationale in accepting the Defenders’ prosthetic expert over the Pursuer’s was flawed to the extent that it will interfere with the Judge at first instance’s findings. The Inner House’s views may have a bearing on how claims involving the cost of prosthetic limbs and rehabilitation will be brought in the future north of the border where there has been an increasing emphasis on the multi-limb approach for Pursuers.

This is certainly a case to keep a look out for in the latter part of 2016 when the Inner House may be expected to issue its judgment.

Looking forward

As you will see, 2015 brought a number of interesting and exciting decisions that have continued to shape the legal landscape with more expected to follow in 2016.

Looking forward to 2016, in addition to the developments inside the court room, the year looks set to bring a number of exciting changes to the Scottish Court system as a whole with the eagerly anticipated civil court reforms now taking shape. One of the most significant changes being the introduction of the new all-Scotland Personal Injury Court which, alongside the local Sheriff Courts, has exclusive jurisdiction for personal injury cases with a value of up to £100,000. A new Sheriff Appeal Court has also been introduced to hear both criminal and civil appeals. The Court already has jurisdiction to hear criminal appeals and civil appeals will be introduced in early 2016. To date, there have been no published decisions from the all-Scotland Personal Injury Court but that is only a matter of time.

Another area likely to be the subject of much discussion and debate throughout 2016 is expenses and funding of litigation. A consultation on the Expenses and Funding of Civil Litigation Bill took place in 2015. The Consultation sought views on, amongst other things, Sheriff Principal Taylor’s recommendations in respect of Damages Based Agreements, Speculative Fee Arrangements and Qualified One-Way Costs Shifting. The responses were unsurprisingly mixed depending on whether the respondent was of a pursuer or defender background. An additional step in the consultation process has recently been introduced with the Government setting up a focus group to assess the impact of the proposed changes being introduced by the Bill. Responses are due by the end of January 2016. Once the responses have been gathered and assessed, the intention is for the Bill to be laid before Parliament, most likely at the start of the next Parliamentary Session.

…Watch this space!

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