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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nicoll v Guild Homes (Tayside) Ltd [2008] ScotCS CSOH_156 (13 November 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_156.html Cite as: 2008 GWD 38-572, [2008] ScotCS CSOH_156, [2008] CSOH 156, 2009 SLT 486 |
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OUTER
HOUSE, COURT OF SESSION |
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[2008] CSOH 156
OPINION OF MORAG WISE, Q.C. Sitting as a Temporary Judge in the cause LEE MACFARLAN NICOLL Pursuer; against GUILD HOMES (TAYSIDE) LIMITED Defender: _______ |
Pursuer: G Clarke; Harper Macleod, LLP
Defender: J.G. Thomson; Simpson & Marwick
13 November 2008
Introduction
[1] The Pursuer
("Mr Nicoll") sues for damages for
personal injuries sustained in a road traffic accident on
[2] In addition
to the Pursuer himself, evidence was led in his case from Professor David
Rowley (a consultant orthopaedic surgeon), Penelope Fraser (a consultant
clinical psychologist), two leading academics in the field of textile design,
Professor John Miles and Professor Clare Johnston and from Peter Davies (an
employment and vocational and rehabilitation consultant). On behalf of the Defenders evidence was led
from one witness, Andrew Nicoll (an employment consultant).
Facts
(i) Background
[3] Mr Nicoll was
born on
[4] Mr Nicoll
began to give lectures in the
[5] By 1998,
digital textile printing technology was starting to develop and Ratti were
negotiating the acquisition of such a printer. But Mr Ratti had died and those who took over
decided that they no longer needed a Centre for Study and Research. Mr Nicoll was offered a post in production but
not in research, which effectively ceased within the company. He reached agreement with Ratti to part
company on something akin to a redundancy basis. He received a generous payment of 22 months
salary, which he used to finance a career break. During that break he considered his options. He took time to learn the new software being
used in textile printing, he visited design studios and the
[6] Shortly after
he returned to the
[7] Between
applying for the
(ii) Accident
on
[8] On
[9] While Mr
Nicoll's initial recovery from surgery was good, his fractures were slow to
heal. He underwent active rehabilitation
and physiotherapy. He had considerable
problems coming to terms with the accident, his injuries and his ongoing pain. He was referred to the Clinical Psychology
Department within NHS Tayside and attended counselling sessions with a
psychologist there for a number of short periods between 2001 and 2005.
(iii) Residual
Injuries and Prognosis
[10] Since 2004,
the main physical problem for Mr Nicoll has been pain in his right knee. It had been predicted that he would develop
post traumatic arthritis there and it now seems clear that a full knee
replacement will require to be attempted within about three years. That should alleviate some of his pain, but
will not cure the awkwardness of his gait, which causes discomfort in his back
and now some pain in his left knee. He
cannot straighten his right knee and he has been left effectively permanently
disabled by the accident.
[11] Mr Nicoll has
sought assistance from a chiropractor and a physiotherapist, but he remains
stiff and sore in the morning with an aching pain in his knee that worsens if
he carries out any increased activities. He can walk no more than about 200 yards a
day. He has obtained an automatic
transmission car and has a disabled badge which allows him to park close to
most public venues. He takes
dihydrocodeine and paracetomal at regular intervals in an attempt to alleviate
his pain. He has been left with a
general feeling of stiffness and fatigue, common in those who have been
involved in complex polytrauma (6/25, Report of Professor David Rowley,
[12] Mr Nicoll is
suffering an adjustment disorder, which is a reaction to a particular thing or
event that causes stress over and above what would be expected in an average
person. He continues to have intrusive
ideas about the accident and subsequent events. He has done what he can to cope with his
feelings of anger about this. He now
feels like a dull person, in contrast to his pre accident demeanour which was reasonably
gregarious.
(iv) Post
Accident Work
[13] Since the
accident Mr Nicoll has done what he can to maintain some level of activity in
his chosen field. He has undertaken
three trips for the John Miles Partnership to sell designs on the same basis as
the trip he took shortly before the accident and for similar payment. The last of these trips was quite debilitating
and he will not be able to carry out any more work of that type in future. He also travelled to
[14] In summary, Mr
Nicoll has maintained a good reputation in the field of textile design since
the accident. He has been unable to work
in his chosen field, other than to undertake the occasional isolated projects
referred to above.
(v) Loss
of Earnings
[15] In August
2002, Professor John Miles was engaged in setting up the Textiles Department at
[16] It is less
easy to establish if and when Mr Nicoll would have progressed beyond the
position of Senior Lecturer. Professor
Miles thought that he would have progressed quickly and would have become
eminent in the role, citing his research skills and commitment to anything he
undertook as indicators of that. However,
Mr Nicoll did not indicate a specific ambition to run a department within
an educational establishment. His
employment history indicated that he would not apply for posts that did not
coincide with his particular interests. It
is likely that he would have required to work full time for financial reasons
and he was clearly motivated to do so. His
energies outside his employment would, I think, have been devoted to pursuing
design work of his own. I cannot
conclude that he would have progressed beyond the position of Senior Lecturer. There was no specific evidence about when
exactly such an opportunity would arise and if so, whether Mr Nicoll would have
pursued it.
[17] Once in post
as a Senior Lecturer, it is likely that Mr Nicoll would have continued to
undertake his own design work on a self employed basis. As a full time Senior Lecturer he would have
been able to do so only on a relatively restricted part time basis. He had sufficient contacts to show and market
his designs either through the John Miles Partnership or own his own.
[18] Mr Nicoll
would require to retire from a post as Senior Lecturer within
Discussion of Evidence
[19] My general
conclusions on the evidence, relevant to the issues in dispute, are reflected
in the above passages. Ultimately there
was no dispute at all about the nature and extent of the physical and
psychological injuries and neither Professor David Rowley nor Penelope Fraser
was cross examined. Professor Rowley
expressed the view that Mr Nicoll has done everything he can to try and work
but his physical disability and related pain severely restricts his ability to
travel for the type of work he undertook for the John Miles Partnership. While he had done a little better than
expected initially, he was finding it increasingly difficult and his ability to
work had diminished. He confirmed that
there was no question of Mr Nicoll now being physically capable of employment
as a College Lecturer in the design field. The most he would ever be able to do is work
at a computer keyboard for very limited periods. Penelope Fraser stressed that Mr Nicoll found
his inability to work frustrating and this, together with the chronic pain from
which he suffers, has left him with a feeling of lack of control over his life.
Both medical professionals found Mr Nicoll
to be a reliable historian who did not exaggerate and Professor Rowley
described him as " ... genuinely making the best of it".
[20] Mr Nicoll gave
his evidence in a clear, quite slow and deliberate manner. It was apparent that the accident and its consequences
have affected him deeply and he came across as someone grieving for the person
he had previously been. I found him to
be both credible and reliable in his account. He impressed as an intelligent and articulate
man and I agree with Professor Rowley's conclusion that he was doing what he
could to make the best of the unfortunate position in which he now finds
himself. It was clear that for a time
after his employment at Ratti ended, the Pursuer enjoyed having the funds for a
career break, to pursue his interests in design and music while taking stock of
his career. He accepted that he had not
actively sought employment before his return to this country. The decision making process about his career
had culminated in the decision in 2000 to live and work back in the
[21] He spoke of
having been "in denial" for years since the accident about the issue of his
ability to work. His desire to continue
with the work that consumed his interest had led him to underestimate the
impact of his injuries on his ability to do so. His attempts to continue to travel to
[22] Mr Nicoll
described his current physical difficulties as being unable to straighten his
right leg, sharp pain around the right knee and an inability to walk more than
200 yards in any one day. He is unable
to sleep for more than two to three hours at a time and he feels that long term
painkiller use has left him less alert than previously. His initial anger about the circumstances of
the accident has subsided. He continues
to play and record music but is unable to commit to performing. Notwithstanding these ongoing difficulties, Mr
Nicoll noted that he still had design ideas and liked to keep up with new
developments in his field. Slowly, he
had come to the realisation that implementation of those ideas was unlikely. Mr Nicoll described his pre accident life as
centering on design and music. That life
had been devastated by the accident. He
felt certain that, but for the accident, he would have been pursuing a
successful career by lecturing at
[23] I found
Professor Miles to be an impressive witness. He has had a highly successful career both in
academia and in industry and has clearly been in demand in his chosen field. He presented as modest, even self effacing, against
the background of his considerable achievements. He was generous in his admiration of the
Pursuer's work, but I had no reason to consider that he was unrealistic in
that. Indeed it was corroborated by
Professor Clare Johnston who also thought that, but for the accident, Mr
Nicoll's prospects of working in academia had been very good. She remarked that he had excellent experience
and was a very good communicator, a key skill in education. She too would have considered him for a post
had an opportunity arisen. The work in
which he was most interested and qualified, digital design, is now an essential
part of every BA and MA textile course. She
described Mr Nicoll as "... very ahead of his time - he anticipated the
importance of the digital field for textiles." It was clear that people within the textile
industry tended to know of each other's accomplishments and to talk about them.
Mr Nicoll had been talked of positively
by academics in the field and it was known that Antonio Ratti had held him in high
regard. Those with reputations were
sometimes asked to apply for academic posts, albeit that an interview procedure
would have to be carried out. Professor Johnston
had been asked to apply for the Chair she now holds. The evidence of Professor Johnston, while
relatively brief, was calmly and carefully delivered through live video link
and was of considerable assistance.
[24] Professor
Miles said that, having admired Mr Nicoll's work, he "wanted to get him on my
side" when setting up at
[25] The two
employment consultants who gave evidence could not offer the kind of direct
evidence of the Pursuer's abilities and suitability for employment as a
lecturer upon which I have relied in concluding that on balance he would have
gone on to teach at Bath Spa University College. However, each expressed views on Mr Nicoll's
employment prospects at the time of the accident based on the facts of the case
as known to them and their knowledge and experience of employment matters.
[26] Peter Davies
is a recognised employment consultancy expert. He met with the Pursuer on three occasions of
two hours each and had two or three telephone sessions with him in addition. He prepared no less than four reports for the
court's assistance. (6/14, 6/15, 6/17 and 6/26). In short, Mr Davies' opinion was that the
Pursuer appeared to be a well known, well respected person who had a good
prospect of getting work as a Senior Lecturer until the accident happened. His views were consistent with the direct
evidence of Professors Miles and Johnston. He provided information from published data
about earnings, both for academic posts and for the part time freelance design
work that the Pursuer intended to keep up. In evidence he acknowledged that the figures
in his reports were slightly inflated as they didn't take into account that
Bath Spa University College was a "post 1992" University having more recently
achieved that status and accordingly the figures should be slightly lower, at
£33,000 - £34,000 per annum for a Senior Lecturer and £43,000 - £45,000 for
Head of Department as at 2003/2004.
[27] Andrew Nicol
had met with the Pursuer for just over an hour on one occasion in November 2006
and had access to background documents. He
had produced a report for the court's assistance (7/1). In short, he considered that by 2001 Mr Nicoll's
time as a designer "had come and gone". He
did not consider it realistic to think that the Pursuer would have carved out a
successful career in academia at the age of 54 and doubted that he would have
been able to fit immediately into the delivery of an academic programme at a
[28] As between the
two employment consultants, I prefer the evidence of Peter Davies in so
far as he expressed an opinion on the issues of contention about the Pursuer's
future employment prospects. As
indicated his views were consistent with the evidence of those in the area of
work that Mr Nicoll had decided to pursue. He presented a rational basis for concluding
that one could predict the career path on which the Pursuer would have been had
the accident not intervened. Andrew
Nicol on the other hand, appeared to minimise the impact of the accident on the
Pursuer. He was even prepared to express
a view on whether the Pursuer was now fit for work as a lecturer, a view that
did not sit easily with the unchallenged evidence of Professor Rowley. At one point during his evidence he accepted
that a sarcastic remark about the Pursuer's reputation in his report (page 5,
paragraph 19) was unfortunate and suggested he would like to withdraw it. He focused on whether the Pursuer had told him
about the
[29] In my opinion,
taking the reliable evidence as a whole, it is clear that this accident
occurred at a particularly unfortunate time for Mr Nicoll. He was approaching
the end of a career break during which he had made a firm decision to pursue a
combination of full time teaching and self employed design work. He was well
qualified to do both. He might well have applied for and obtained a position at
an educational establishment before Professor Miles approached him in August
2002. However, I cannot conclude on the evidence that such a post would have
been available or that he would have so successfully applied. What is clear is
that Professor Miles was quite determined to have him on the academic team
at Bath Spa from 2002 if he was still available for work.
Claims
Solatium
[30] Mr Clarke
submitted that £65,000 was appropriate, with one half attributed to the past
and interest at 4% per year applied thereto. He referred to The Judicial Studies Board
Guidelines for the Assessment of General Damages, Chapter 6 (L)(b)(ii) (very
severe leg injuries) and (M)(a)(i) (severe knee injuries). The Pursuer had sustained multiple injuries
and was left suffering constant pain, an adjustment disorder, loss of vocation
and related effect on life and lifestyle. There was unchallenged evidence that he was
genuine, without any sign of overlay.
[31] Mr Thomson
submitted that £45,000 would be a suitable figure for solatium, again with
interest on half at 4% per annum. He too
referred to the Judicial Studies Guidelines Chapter 6, but included figures for
slightly less severe leg and knee injuries - (L)(c)(ii) and (M)(a)(i) and (ii)
[32] In my view, in
light of the evidence about the nature of the accident, the severity of Mr
Nicoll's multiple injuries, his ongoing disability and the impact of that on
his quality of life, I consider that an appropriate award of solatium to be
£58,000. Interest on half of that at 4%
per year should be awarded.
Loss of Earnings
[33] Mr Clarke
submitted that the evidence clearly supported the contention that the Pursuer
would have obtained employment as a Senior Lecturer in textile design within a
short period. Professor Miles had
effectively offered him a position in August 2002, which he would have taken
up. The promotion prospects at
[34] The figures
produced for a Senior Lecturer and Head of Department at a
[35] So far as
future loss was concerned, Mr Clarke submitted that a multiplier/multiplicand
approach was the correct one. If I found
that on a balance of probabilities Mr Nicoll would, but for the accident, now
be in post as Head of Department at Bath Spa, it followed that he would remain
in that post until age 65. Thereafter,
some part time earnings from design work could be expected until he attained
the age of 70. He proposed a multiplicand
of 35,176 (the net equivalent of £50,000) and a multiplier of 4.59 on the basis
of table 9 from the applicable
[36] Adding
together his claims for solatium and interest, page wage loss (under deduction
of £2,500) and interest and future wage loss, Mr Clarke contended that a total
award of about £574,376 was justified.
[37] I gave Mr
Clarke the opportunity to respond to Mr Thomson's argument that all that Mr
Nicoll had lost was a chance of future work as a lecturer and that any
calculation of loss of earnings should be a percentage of value to reflect the
likelihood of Mr Nicoll obtaining the type of job he wanted. Mr Clarke drew attention to Robertson's Curator Bonis v
[38] Mr Thomson
submitted that this was a loss of a chance case. A loss of a chance claim, he argued, is
advanced on a more particular basis than a loss of employability claim. In the former reference is made to a
particular job which the person has lost the chance to take up, whereas the
latter refers to the more general position in the employment market. He submitted that the issue was whether the
lost chance that Mr Nicoll would have worked full time as a lecturer was the
loss of a chance which was speculative or a mere possibility, and thus of no
value, or whether that chance was real or substantial and therefore of some
value. If it was of value, an assessment
had to be made of how real and substantial the chance was in order to assess
that. Reference was made to authorities
that support such an approach -
[39] The approach
contended for was a two stage one. First,
one calculates the maximum sum recoverable had the chance of a job been
established as a practical certainty, or a 100% chance. In this case that would be the chance that Mr
Nicoll would work as a lecturer. The
second stage is to evaluate the chance or prospect that that would happen.
[40] So far as the
first stage was concerned, Mr Thomson argued that the maximum recoverable loss
would be in the region of £20,000 net per annum, comprising £15,000 as a part
time lecturer and £5,000 from part time design work. That took into account the purser's past
experience, his lack of success at interview prior to the accident, the amount
of time he might be expected to have been out of work and the likelihood that
he would have worked part time and not gained promotion. On the assumption that he would have worked
until he was 65, the multiplier would be 9.7 using the appropriate
[41] On the second
stage of evaluating the chance of prospect Mr Thomson suggested that 25% was
the proper value. He argued that such a
percentage was justified on the basis that the pursuer had not held a full time
job for three years prior to the accident and there was little concrete
evidence that he was seriously trying to find work. The loss of a chance was therefore valued at
£48,500, which added to solatium and interest would produce total damages of
about £99,819, say £100,000.
[42] On the basis
of the findings I have made in relation to the employment in which Mr Nicoll
would have been engaged but for the accident, I reject Mr Thomson's
assertion that this is a loss of a chance case. In my view Mr Nicoll is entitled to an award
for loss of earnings. For future loss I
accept that a traditional multiplier/multiplicand approach is appropriate,
although in my view a little modification to that approach is required given
the uncertainty over the level of future earnings from self employed design
work.
[43] So far as past
loss is concerned, I accept that during the period 2001 to 2008 Mr Nicoll would
have continued to engage in design work as a self employed consultant, both in
association with the John Miles Partnership and on his own account. The initial trip he made shortly before the
accident had, according to Professor Miles, been well received and one would
expect increased sales over time. That
said, the earnings from the first trip had been only a few hundred pounds. A view requires to be taken as to how quickly
earnings would have increased and stabilised. The published information referred to by Mr
Davies for such earnings is helpful in this respect but not determinative. I do not accept that in the year to June 2002
business would have built up so quickly that gross earnings of £8,000 would
have been achieved. Professor Miles
indicated that it was a gradual process and I conclude that only about £4,000
(gross) would have been achieved that year. Doing the best I can on the information
available, I consider that thereafter, earnings of about £7,000 gross per annum
in the year to 2003 would be likely from this source, rising only modestly, in
light of his full time academic commitments, at the rate of £250 (gross) per
annum, until stabilising at about £8,000 per annum from 2006-2007.
[44] For past loss
of earnings as a lecturer, I have taken part time earnings for the year from
September 2002 to August 2003 and full time earnings thereafter. Again, assessing the information available as
best I can, (and using the average year on year increases across the country
for the last three years, as indicated by Peter Davies in his last report,
6/25) I calculate past loss of earnings as follows. The part time earnings for the initial period
2002 - 2003 are £18,000 gross, then full time earnings of £34,000 from
September 2003 to August 2004, £35,000 to August 2005, £36,435 to August 2006,
£38,002 to August 2007 and £39,408 for the year to August 2008, with that rate
continuing at the present time. These
are all gross figures.
[45] A summary of
past earnings to date appears as follows;-
|
Year |
Design |
Lecturing |
Total (gross) |
|
2001 - 2002 |
4000 |
0 |
4000 |
|
2002 - 2003 |
7000 |
18000 |
25000 |
|
2003 - 2004 |
7250 |
34000 |
41250 |
|
2004 - 2005 |
7500 |
35000 |
42500 |
|
2005 - 2006 |
7750 |
36435 |
44185 |
|
2006 - 2007 |
8000 |
38002 |
46002 |
|
2007 - 2008 |
8000 |
39408 |
47408 |
[46] These are all
gross figures. The net figures can be
obtained by using tables provided in Facts
and Figures, Robin De Wilde QC, 2007/2008 edition. These are:-
2001 - 2002 = £4,000,
2002 - 2003 = £18,709,
2003 - 2004 = £29,322,
2004 - 2005 = £30,217,
2005 - 2006 = £31,373,
2006 - 2007 = £32,606,
2007 - 2008 = £33,646.
The total figure attributable to past wage loss from both
sources is accordingly £179,873 less the £2,500 actual earnings (the figure for
which was not disputed by Mr Thomson) Interest falls to be added to the
balance of £177,373 at one half of the judicial rate.
[47] So far as
future loss of earnings as a lecturer is concerned, in light of the lack of
evidence supporting a clear ambition to run a department I cannot accept that a
multiplicand of 35,176 is appropriate. On
the basis of gross annual earnings as a Senior Lecturer of about £39,500, I
conclude that the appropriate multiplicand is 28,922 and that the appropriate
multiplier is 4.59 giving total future loss of earnings form this source of
£132,752. It is also difficult to assess
the loss of earnings from design work in the later years. While I have accepted that age is not a
barrier to working in this field, it is not clear whether Mr Nicoll's work
would have continued to develop well into the future. Various risks and uncertainties in the market
and the level of competition would be factors that would determine whether he
could sustain this additional work in the longer term. Further, while he would undoubtedly continue
to pursue his interests as a designer beyond retirement from further education,
it seems likely that again his earnings would be modest. In my view it would be more appropriate to
look at this aspect broadly and I have decided to award a lump sum of £42,000
under this head. It seems likely that
such part time earnings would fluctuate and would depend on the nature and
level of the responsibilities held by Mr Nicoll in his full time occupation. Awarding a lump sum for this particular aspect
of future loss takes account of such uncertainties.
Summary of Award
Solatium
[48] £58,000, with
interest on one half from
Past Wage Loss
[49] £177,373, with
interest from
Future Wage Loss
[50] £174,752 with
interest at 8% per year from decree until payment.
[51] Total Damages £410,125 plus interest as
above.
Disposal
[52] I shall have
the case brought out By Order to discuss the precise terms of an interlocutor
sustaining the first plea in law for the pursuer and awarding damages in
accordance with the foregoing summary. I reserve, meantime, all questions of
expenses.