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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrison v. Whiteinch Demolition Ltd [2006] ScotCS CSOH_67 (04 May 2006) URL: https://www.bailii.org/scot/cases/ScotCS/2006/CSOH_67.html Cite as: [2006] ScotCS CSOH_67, [2006] CSOH 67 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 67 |
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A2931/02 |
OPINION OF LORD MACPHAIL in the cause DAVID FLEMING MORRISON Pursuer; against WHITEINCH DEMOLITION LIMITED Defenders: ________________ |
Pursuer:
Ennis; Drummond Miller, W.S.
Defenders:
Shand, Q.C.; Simpson & Marwick, W.S.
21 February 2006
Introduction
The parties' averments
[2] The pursuer, who is now 48 years of age,
was injured in the course of his employment with the defenders as a labourer on
[3] The defenders averred that the pursuer had a long pre-accident history of back pain and persistent somatoform pain disorder. They specified his pre-accident complaints in detail. They averred that he had made a good recovery from his injuries. Any "psychiatric/psychological symptoms" attributable to the accident significantly diminished within a short period of time. He was regularly out of work before the accident.
Submissions for the pursuer
[4] At the hearing of the motion, counsel for the pursuer stated that the pursuer had left school at the age of 16 and had no formal qualifications. He could not be retrained for any suitable occupation. Counsel emphasised the severity of his injuries. In 2004 a tender had been lodged but had been withdrawn, apparently because it had been lodged without instructions from the defenders' insurers. A further tender had been lodged a week before the diet of proof.
[5] Addressing me on each of the heads under which an additional fee was claimed, counsel explained that as to head (a), "the complexity of the cause and the number, difficulty or novelty of the questions raised", the issue of complexity was centred on the medical consequences of the accident. Counsel pointed to the extensiveness and severity of the pursuer's skeletal and internal injuries. The pursuer's averments did not do justice to the traumatic nature of the injuries in this case: it was not a run-of-the-mill crushing injury. There was a question whether he would need one or two hip replacements in the future. His mobility had been impaired by the severity of his injuries. In general, such complex injuries were not exceptional. But the defenders claimed that the consequences of the accident were not as severe as the pursuer claimed them to be: the defenders said that other factors came into play and that the pursuer's very extensive medical records showed a range of complaints which impacted on his mobility and his ability to work. The pursuer, on the other hand, said that it was his physical injuries alone which prevented him from working. The defenders' position had to be examined. The pursuer had significant psychological problems: post-traumatic stress disorder, depressive illness and loss of self-esteem. It had been difficult to investigate these because of the pursuer's low mood and his reluctance to engage with the experts. There was a range of complex and difficult issues. It was necessary to work out how each medical condition could be related to the accident. Also, the pursuer had suffered a heart attack and a small stroke. He was in chronic pain. The causation and inter-relation of each symptom had to be looked at. This had an effect on the question of future wage loss. The pursuer had had "a job for life" with the defenders. His claim for future wage loss was very substantial. If the defenders were correct in saying that his symptoms were not due to the accident and that he would not have worked beyond the age of 50 anyway, the damages for future wage loss would be small. A range of medical experts had been involved: psychiatrists, psychologists and a pain consultant.
[6] As to head (b), "the skill, time and
labour, and specialised knowledge required, of the solicitor, or the
exceptional urgency of the steps taken by him," there was no claim on the
ground of exceptional urgency. However, the skill, time, labour and specialised
knowledge required were beyond the norm. The pursuer lived in
[7] As to head (e), "the importance of the
cause or the subject-matter to the client," he was a relatively young man from
whom much had been taken. He lived at present in an unsuitable local authority
house which had been little adapted for his needs. He would need finance to
adapt a house and to get out and about. The damages would also facilitate his
paying for a pain management programme at an establishment in
Submissions for the defenders
[8] The grounds of opposition to the motion were stated as follows in Form 23.4:
"This is an action in which liability was admitted from an early stage. The only issues arising were essentially medical, or flowed from the medical position. Those issues were dealt with in the normal way by the instruction of the appropriate expert. There are not circumstances arising in the present case warranting the award of an additional fee under heads (a), (b) or (e) of Rule 42.14."
[9] Counsel for the defenders moved me to
refuse the motion. Alternatively, if I considered that it might be appropriate
to allow an additional fee, the question should be remitted to the Auditor for
determination. Counsel submitted that the considerations said to favour the
allowance of an additional fee must be detailed and adequately vouched. The
Court had not been referred to any medical reports or records. It had not been
said that there had been any difficulty in finding medical experts. The pursuer
must point to concrete factors in support of the various heads founded on.
Counsel cited Zyszkiewicz v
[10] Turning to head (a), counsel pointed out that liability had been admitted from an early stage. The principal issue was the extent to which the physical injuries sustained by the pursuer caused him greater disability than he had suffered before the accident. That was essentially a medical issue, which had been dealt with in the normal way by instructing orthopaedic reports which dealt with his ability to resume his pre-accident work. The pursuer had had a poor pre-accident employment history, and the issue of his future wage loss was not complex. There was a dispute between the psychiatrists as to whether he would have continued to work but for the accident, but that was not unusual. As to his claim for services, a care costs expert had been instructed in the normal way. His claim in relation to loss of pension was not large and an actuary had been instructed. All these investigations were not out of the ordinary for a case of this type.
[11] As to head (b), no degree of skill beyond the norm had been identified. There had been no detailed, vouched submissions. This was a factual issue which could not be considered. Alternatively, there should be a remit to the Auditor.
[12] As to head (e), the prospect of attendance at a pain management programme was news to the defenders. The records showed that the pursuer had been non-compliant with psychiatric treatment. There was a factual issue as to whether the pursuer would be likely to undergo such treatment.
[13] Counsel advised me that the case had settled for £200,000, and observed that the pursuer might have done well out of the settlement. He had not worked from 1993 to 2000, and he would not have had "a job for life" with the defenders. His problems had been primarily psychiatric, and he had had a substantial pre-accident psychiatric history. His son received a carer's allowance. The motion should be refused.
Decision
[14] In reaching my decision I considered the case as a whole and each of the factors founded on by the pursuer. I took into account, first, the fact that the defenders had admitted liability at an early stage. That in itself had reduced the burden on the pursuer's solicitors. Secondly, the sum sued for and the figure at which the case had settled were not, in my view, unusual in the Court of Session.
[15] Thirdly, as to head (a), the medical consequences of the accident, while they were not only serious but also both physical and psychiatric in nature, did not appear to me to be so complex as to take the case out of the range of personal injuries actions normally dealt with in this Court. There was no suggestion that it had been difficult to find appropriate medical experts and obtain advice from them. Differences between medical experts instructed on either side are not unusual. Nor is it unusual for such differences to be relevant to the calculation of future wage loss.
[16] Fourthly, as to head (b), the fact that the solicitors had had to deal with a rather difficult client who could only be seen in Greenock no doubt made demands on their skill, time and labour but not, in my judgment, to such an extent as to justify the allowance of an additional fee.
[17] Finally, as to head (e), I accepted without hesitation that the case must be important to the pursuer; but the question of how the damages should be applied did not appear to me to be more anxious than in other cases where a substantial award is made to a disabled pursuer.
[18] Having reviewed the whole matter, I concluded that the case was not so different from other substantial actions of damages for personal injuries brought in this Court as to justify the allowance of an additional fee. I therefore refused that part of the motion.