The case of Roberta Taylor v Kevin Sands & Co-op Insurance Limited [2006] CSOH 186 called in the Outer House on 5 December 2006 before Lady Dorrian. The pursuer was the guardian of her daughter, Clare, who was seriously injured in a road traffic accident on 4 February 2002. Liability was admitted and a motion was enrolled by the pursuer’s agents for interim damages of £250,000. A previous voluntary payment of £250,000 had been made by the defenders.
Clare is suffering from a severe brain injury with diffuse anoxal damage and frontal contusions, impairment to her cognitive functioning, severe impairment in her communication, global and profound acquired dementia and profound retro amnesia. Her condition is unlikely to improve and she is unable to return to any form of gainful employment.
East Lothian Council fund a community care package and day services for her. The cost of these services had increased, but the payments from the Council had remained static and there was a shortfall in the amount that required to be repaid. The pursuer also considered that Clare would need 24 hour care for the rest of her life, that the current regime meets only her basic care needs and she also considered that they would require to employ a Care Manager.
While liability is admitted in this case, the situation is complicated by the fact that Clare had been involved in a road traffic accident two years previously where she had sustained a moderate brain injury causing her to suffer from minor cognitive difficulties. Prior to the earlier accident she was setting up a recruitment consultant’s business but had suffered from work related stress which prevented her from working. She had suffered panic attacks and agoraphobia in 1997.
The pursuer’s position was that, but for the present accident, it is likely she would have recovered from her earlier head injury and would have been independent for all activities of daily living and would have enjoyed a relatively normal social life. The pursuer’s counsel referred to their medical evidence. One of their medical experts stated that “previously acquired brain injuries do worsen the cognitive outcome of future acquired brain injury, but, given the nature and extent of her coma in the second accident, this is irrelevant and all her current disability is wholly attributable to the second accident”.
Counsel for the pursuer referred to their Schedule of Damages which amounted to £4,107,664. They recognised that a substantial element of this was for future care, but submitted that even if the claim might be said to be only worth, e.g. £1million, then the sum sought, even taking into account the voluntary payment, remained a reasonable proportion of the damages which were likely to be awarded.
As expected, Counsel for the defenders submitted that the earlier head injury was the severe one and that as a result of her previous physical and psychological history her employment prospects were limited in any event. They considered that a care regime in her own home was inappropriate and the most reasonable and appropriate option for her was residential accommodation provided by the local authority. Therefore, the defenders were arguing that any claim for future residential accommodation was irrelevant.
The defender opposed the pursuer’s motion for interim damages. They submitted that:
- the motion was premature as there were approximately two months remaining in the adjustment period and the parties were still adjusting; and
- the pursuer’s agents’ medical evidence referring to the irrelevance of the previous accident may be appropriate for treatment purposes but for the purpose of litigation the question was whether she would have been prejudiced by the previous accident and the answer to this, they submitted, was yes.
Counsel for the defenders submitted that it was not possible at any stage to say the pursuer would be awarded more than £500,000 and in which case the sum paid already (i.e. £250,000) represents a reasonable proportion of the damages sought.
When advancing the motion, the pursuer’s Counsel emphasised that the judge did have a wide discretion in terms of determining an award of interim damages. She commented that it was not necessary for the pursuer to establish hardship, although this can be taken into account, and while the approach should be conservative and moderate, it should not necessarily be restricted to loss to date. She referred to previous cases where the sums awarded for interim damages had varied between 50 to 70% of the likely award.
Counsel for the pursuer had previously said that on any view the claim was bound to be worth at least £1million. Having heard the submissions from both Counsel for the pursuer and the defenders, Lady Dorrian considered that the claim may be worth no more than £600,000 to £700,000 if the defenders were successful in their argument. In light of this, Lady Dorrian considered the sum sought by way of interim damages would represent an excessive proportion of the likely award. However, she did consider that an additional sum would be justified and she proposed to make an award of interim damages of £50,000. You will note that this, together with the previous voluntary payment, represents approximately 50% of the likely sum which would be awarded if the defenders were successful in their argument.
The judge appears to have considered carefully the facts and figures which were put forward by each of the pursuer and defenders’ Counsel. The courts appear to generally take a conservative and moderate approach when granting interim damages, in light of the fact that the pursuer may be required to repay sums if the interim award exceeds the amount of total damages ultimately awarded after proof. Therefore, while this case is useful as an example of the approach that is likely to be taken by the judges in the Court of Session, as ever, each case will turn on its own facts and circumstances.
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(Information posted in February 2007and may not have been updated at time of reading).