Very few catastrophic injury cases are litigated in Scotland and so it is worth bringing to your attention the recent decision in the case of Elizabeth Gordon v Mark Martin Lynch [2009] CSOH 116. A link to the full judgement is attached below:
http://www.scotcourts.gov.uk/opinions/2009CSOH116.html
Sean Milligan was severely injured in a RTA in May 2004. Liability was conceded and there was no issue of contributory negligence.
Digby Brown represented the Pursuer and HBM Sayers represented the defenders.
Sean was 43.5 years old at the date of trial. His sister was appointed his guardian. She ran a successful business in the USA with Sean's other sisters. Sean had lived in the USA but he had come home to live in his sisters house in Scotland while her children were finishing their schooling. Evidence was led to the effect that he planned to open a branch of the family antiques business in Scotland. That had not happened by the date of the accident however. He had never worked in any official capacity prior to the accident and had been financially supported by his sister.
The injuries were multiple leg fractures to both legs (femurs, patellae, ankles) causing one leg to be shortened, a chest injury, and a severe diffuse axonal injury to the brain. On admission to hospital he had a GCS of 3, indicating a state of deep unconsciousness. He was not expected to survive, but he gradually improved. He was left with severe cognitive, emotional and behavioural problems. He had problems with memory, concentration, disinhibition, intellectual function, mental speed and executive functioning. He was prone to anxiety and anger. In addition, he suffered from a psychosis which was controlled by medication. Failure to take the medication resulted in a deterioration in his mood and behaviour over a matter of weeks. His behaviour was challenging and he required 24 hour care. He also had balance and mobility problems to the extent that he walked with a slow shuffle and required the assistance of a frame. He had double vision and problems with his balance.
The interesting points arising from the judgement (which came from a judge and not a jury) are as follows:
- Solatium was assessed at £200,000 plus interest.
- Professor Barnes gave evidence that life expectancy was reduced by 24% over 10 years which equates to death at 74. Another neurosurgeon (Mr Dunn) had given evidence that there was no significant effect on life expectancy (he suggested a reduction of 1 year) - this was rejected. Interestingly Professor Barnes said that Ogden 6 increased life expectancy to age 78 but he said
(a) there are limits to the use of the tables and
(b) in any event life expectancy for individuals in Glasgow and the West of Scotland was often lower. The court accepted this.
- It had been agreed that because of the lack of any employment history for this injured party, the use of a multiplier/multiplicand was inappropriate. However the Pursuer's agents asked for £130,000 to reflect loss of earning capacity (£30,000 of that to the past). The defenders Counsel, Gerry Hanretty QC, suggested a figure of £30,000 in total. The court awarded £50,000 to cover past and future loss and interest on past loss.
- Past family care was costed by the Pursuer's agents on the usual basis - X number of hours multiplied by a commercial rate, discounted by 25%. That approach was rejected by the court on the basis that it assumed that all of the contact between the family and the injured party amounted to provision of services. It ignored the family bonds. The court was somewhat critical of the lack of evidence taken from the sister about the number of hours and the type of care provided. A lump sum of £40,000 was awarded (roughly £8,000 per annum over 5 years post accident). Future family care was likely to decrease because of the involvement of a case manager and the provision of a professional care regime and so future family care was assessed at £20,000.
- The future care issues revolved largely around the question of whether the injured party's guardian should directly employ the carers or whether she was entitled to instruct a care agency to provide the services. The Defenders suggested that direct employment was cheaper and just as good as an agency regime. That was not accepted. The court held that there was not necessarily a cost saving by employing carers directly, and that there were benefits in the use of agencies to provide care. The agency regime was approved, as was the case manager's requirement for involvement to the extent of 9 hours per month.
- The future care regime for 24 hour care, allowing for an increase in the care regime as the injured party grew older and his condition deteriorated amounted to £2.2 million .
- The Pursuer's Counsel argued for a 10% uplift in the care costs to allow for the possibility of the care regime breaking down and fresh providers having to be brought in possibly at higher rates. The court was not satisfied with the evidence and this proposition was rejected.
- Accommodation was required and this was calculated in accordance with Roberts v Johnston with the architects fees and legal fees being added on after the Roberts calculation was carried out.
- The cost of various treatments were sought. The Defenders argued that these were available on the NHS. The judge held that this did not exclude the claim but he allowed a modest reduction in the costs to reflect this.
- The Pursuer's agents sought to recover £132,000 in anticipated guardianship costs. There was no evidence to support the actual costs likely to be incurred and the court agreed with Mr Hanretty, that a broad brush approach was required and awarded £50,000.
- The total award was £3.3 million.
The big issues which are routinely aired in the catastrophic cases south of the border (flat rates v enhanced rates, numbers of carers, numbers of hours) were not really discussed in any great detail. Moreover the impression gained from reading this judgement is that the court took a broad brush approach to many of the claims on the basis that there was insufficient evidence to support the Pursuer's position. The effect of this is that Pursuer's agents in future cases will know that these claims might succeed (or more might be awarded) if better evidence is offered.
In addition, you will see that the Pursuer's agents had failed to lodge receipts for certain items of expenditure said to have been incurred by the claimant post accident (presumably the receipts were simply not available for one reason or another). The judge was also not satisfied that he had enough evidence on the issue of what would happen if the relationship with the current care providers had broken down. Had all of this evidence been available then the award might have been higher. Presumably in the future, we will see better quality evidence on such matters from Pursuer's agents.
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Louise Hay