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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDonald (AP) v Chambers [2000] ScotCS 1 (5 January 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/1.html Cite as: [2000] ScotCS 1

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Shortly before 5pm on 12 January 1994 the pursuer was knocked down and badly injured on a pedestrian crossing (known as a "Pelican" crossing) in Bearsden Road, Glasgow. She was there hit by a motor car driven by the defender. The Pelican crossing lay south of Sutcliffe Road and north of Anniesland Cross. There was a central reservation in Bearsden Road (which ran north and south) at the place where the accident occurred. There were two related crossing places, separated by the central reservation island; one across the carriageway for northbound vehicles; the other across the carriageway for southbound vehicles. The defender was driving southwards. The pursuer, who was attempting to cross from west to east, was struck on the crossing giving access over the southbound carriageway. The pursuer was very seriously injured and sustained brain injuries inter alia. She was in a deep coma for some time and she has suffered from retrograde amnesia since the accident. She remembers nothing of the accident. Evidence was taken on commission on 23 March 1997 from the defender, on account of her age (date of birth 29 August 1917). A soul and conscience certificate dated 2 November 1999 showed that she was unfit to attend court for the Proof; accordingly her evidence on commission was received as her evidence in the case. The evidence of Alan Dunlop, who was driving his car south on the same carriageway and close to the place where the accident occurred, was also taken on commission (on 16 November 1999) because he was to be abroad at the date of the proof. The only other witness who gave evidence of the accident itself was Romina Moro.

In addition to that evidence, it was averred and admitted that the defender had, on 28 March 1995, pled guilty to a contravention of Section 3 of the Road Traffic Act 1998, and it was not disputed that that offence was committed by her while she was engaged in the driving which led to and resulted in the collision with the pursuer. There was also evidence of the sequence and functioning of the traffic signals operating at the material time at the crossing in question. I see no reason to reject the evidence that the sequence and timing of the lights and crossing times for the Pelican crossing at the locus were as described in the letter dated 31 January 1995 (No. 26/1) of process, spoken to by Mr D Sharp. The information in that letter was taken from records kept for the purpose and Mr Sharp confirmed that the lights were checked monthly for Strathclyde Regional Council by Siemens/Plessey. The signalling equipment and the Pelican crossing times are as described in that letter. For the pedestrians there was an illuminated ideogram consisting of a red man or a green man to give notice of the phases when using the crossing was prohibited or permitted. The green signal for southbound traffic would remain unchanged for 30 seconds or longer. They would remain at green until a pedestrian pressed the control button. If a person wished to cross from west to east he would press the control button on the box on a vertical standard on the central reservation. On the box the word "WAIT" would be

illuminated. If the green light for southbound traffic had been showing for less than 30 seconds, it would remain showing green until the 30 second period was finished. If, however, the green had been showing for 30 seconds or more, the pressing of the button would instantly result in the change of light from green to amber for southbound vehicles; it would remain amber for 3 seconds. During both these phases (30, or more, seconds plus 3 seconds) the ideogram of a man would remain red, to signal to pedestrians not to enter upon the carriageway. At the expiry of the first 3 seconds, the traffic light would turn to red for southbound traffic but the ideogram would remain red for a further 3 seconds. That would be followed by a green man ideogram for 7 seconds, during which the traffic signal would remain at red. For 7 seconds thereafter the ideogram would be a flashing green man and the traffic light would be flashing amber. The penultimate phase was a one second phase in which the ideogram was a red man and the traffic light flashed amber. Finally, the traffic signal would turn to green, the ideogram remaining at red. Although there was a similar crossing on the other side of the island, for northbound traffic, the signals on the two crossings operated independently of each another. The locus itself is described fully in 26/2/1 of process. As indicated there, and as confirmed by the evidence, the crossing on which the pursuer was injured was removed after the accident; in April 1995 according to Mr Sharp. New traffic lights were then installed to the north in the vicinity of Sutcliffe Street. About that time, to the east side of the road and north east of the locus, a new Safeway store was opened with a petrol filling station. The photographs of the locus which were in process were taken after these changes had taken place. Bearsden Road is described as a very fast and busy road, subject to a 40mph speed limit. The road inclined, but not steeply, from north to south. It was said that at the time there was no pedestrian barrier on the east side of the southbound carriageway, but that is not a matter of any materiality.

There was very little challenge to any of the evidence adduced in this case. There was no significant challenge to the credibility of the witnesses and it appears to me that they tried to answer the questions fully and fairly. On the other hand, it must be remembered that none of the witnesses, whether on commission or in court, was speaking to recent events. The witness Romina Moro (as noted, the only independent eyewitness to give evidence in court) gave her evidence in a quite impressive way. Nonetheless there are comments that fall to be made about the content of her evidence. First of all, she was surprisingly quick and precise in answering questions about an incident that occurred almost 6 years before she entered the witness box, an incident that occurred in darkness or near darkness and at speed on a busy road. She certainly did not give evidence like someone who was dredging the dark recesses of her memory in order to recall the details. Secondly, she claimed to have observed that, when she first saw the pursuer, the pursuer was pressing the button on the traffic light control box and at that stage she (Moro) was some 35-40 yards from the pursuer. The witness said that she was then walking in a northerly direction on the east pavement; the pursuer was apparently intending to cross from the traffic island in an easterly direction. According to Miss Moro, the car was going southwards, and when the collision occurred the pursuer rolled across the bonnet, and bounced off - and broke - the windscreen yet the pursuer landed on the ground some 4-5 yards further away from the witness than she had been when first seen. This did not seem to make sense, as the pursuer made a full contact with the windscreen of a fast moving car and must have been propelled in broadly the same direction as the car was travelling, even if she was also deflected to the side. However, Miss Moro did not want to reconsider her evidence on the matter. She also thought that the defender’s car moved on some 200 yards or so south of the crossing before stopping; but none of the other evidence suggests that, although no precise questions were put whether to the police or to Alan Dunlop or to the defender about that particular point. Miss Moro also explained that before the accident she thought the car was going to stop: she did not explain what made her think this, although she said that she heard a "gear shift". She was not clear what made her suppose that what she heard was a gear shift sound. Despite the fact that she herself saw the pursuer at a distance of 35 yards or thereby, she was unwilling to express any view as to whether or not the defender travelling south would be able to see the pursuer, which struck me as odd. In point of fact, the defender in evidence explained that she did see the pursuer. It is also important to note that, when the pursuer pressed the button, the light seen by south-going traffic would change to a steady amber signal before changing to red when the 30-second-plus period expired. The defender at one point in her evidence said that she saw an amber light showing as she approached the pedestrian crossing. She did not say that she ever saw a green light for southbound traffic. She had earlier seen the pursuer in the centre of the road and saw the pursuer take 3-4 steps as if she was in a hurry. I have come to the conclusion that I cannot regard the evidence of Miss Moro as being wholly reliable, although I have no reason to doubt her honesty. Her evidence was to the effect that the pursuer pressed the signal button and stepped out into the path of the approaching car. That picture is not easy to reconcile with the defender’s own account of seeing the pursuer on the island and taking several steps over a period of seconds. The defender said that when she first saw the lights they were at amber. This was after the pursuer pressed the control button. The defender

The pursuer’s averments of fault are about as brief as it is possible to be. They do not deal expressly with the situation that must have happened, namely that the traffic signals for the defender changed from green to amber before turning to red. There is no mention of a duty to give an audible warning by means of the horn. It is clear, however, in my opinion, that the defender could not have been keeping a proper lookout as she approached the locus for, had she done so, she would have been bound to see the lights changing from green to amber. There can be no doubt that she failed to drive with reasonable care because, having observed the lights at amber and having observed the pursuer on the island, then taking several steps and emerging onto the crossing, she apparently took no steps to brake or to sound the horn or to swerve. There is nothing to indicate that she did anything whatsoever in response to the pursuer’s presence, her observed actions or the traffic signals.

The main issue is as to the pursuer’s contribution to the accident. The evidence discloses that there were at least several and perhaps many vehicles proceeding at or about the speed limit in a southerly direction. It was a busy time, and there were two southbound lanes. The pursuer was standing in a safe place on the island. It is clear that by pressing the button she would quickly cause the lights to operate so as to signal southbound traffic to come to a standstill. It is undeniably careless for a pedestrian in such a situation to step off into the carriageway before she has ascertained that the traffic has stopped or is obviously about to stop before reaching the crossing itself. There is nothing to indicate that the pursuer waited for the pedestrian green man to appear. It is unlikely that she did, for the green man would not have appeared until at least 6 seconds after she pressed the button. Thus, whether she intended to rely upon the lights or upon her own assessment of how the traffic was responding to the lights, she should not have stepped onto the crossing and away from the safety of the island until either of these observations, or both, made it clear that it was safe for her to enter upon the crossing. It is conceivable, though it is pure speculation, that she stepped off when she observed the traffic lights change whether to amber or to red. Even if that were so, however, it would still have been careless of her to do so without checking that the traffic was stopped or going to stop. A pedestrian who is using a set of traffic lights, with signals for both traffic and pedestrians, to cross a busy road can hardly escape a charge of carelessness if she steps into the roadway when the roadway is not clear or when there is traffic which is still moving towards the place where the pedestrians are to cross. It is a matter of everyday experience that some motorists will go through the lights as they change whether through carelessness, wickedness, incompetence or even because it is better to proceed than to brake fiercely. A pedestrian who ignores that fact of life and steps out into the road is failing to exercise reasonable care for his or her own safety. In these circumstances, I must conclude that the pursuer was at fault. She must have failed to take reasonable care to check that it was safe for her to leave the island. She must have walked into the path of a car which was moving and visible.

In my opinion, the major share of the blame attaches to the defender. It is difficult to escape the conclusion that she intended to drive through the lights at amber and that she made no attempt whatsoever to stop or avoid or warn the pursuer whom she had seen obviously about to cross. Her admission of guilt under Section 3 and her driving as described by Mr Dunlop point to a significant lack of due care in the control of a motor vehicle approaching a light-regulated pedestrian crossing at 4.45pm on a January evening. The defender’s evidence does not appear to me to offer any real explanation of what happened. On the other hand, the pursuer’s contribution to the accident was not negligible. She could not have relied properly either upon the signals or upon her personal observation to ensure that it was safe to cross. Although the car driven by the defender was small and dark, it appears that it had its side lights on (not dipped headlights as Romina Moro thought). It is possible that the pursuer got the same impression that Romina Moro got and thought that the defender’s car was going to stop. It would nonetheless still be careless to cross the road on that assumption without checking that the car was in fact stopping so as to make it safe for her to do so. It is difficult to apportion blame. I considered the cases to which counsel referred me; but the issue is one of fact, not law. And reported cases dealing with similar sets of facts are of no more than very limited value. However, the general approach of Lord Reid in Baker v Willoughby [1970] AC 467, which was expressly adopted by the Court in McCluskey v Wallace 1998 SC 711 appears to me to apply here and to guide me towards holding the defender more blameworthy than the pursuer. In all the circumstances which I have endeavoured to summarise I have concluded that the pursuer should be held one-third to blame and the defender two-thirds.

Before I turn to consider the evidence, most of which is agreed, as to the pursuer’s condition it is appropriate that I should record my impression of the pursuer, who was called as the first witness.

When she came into court she was offered a seat in front of the clerk’s table but she brushed aside the offer and announced that she preferred to go into the witness box "because it makes me feel more important". As soon as I began to administer the oath to her she rattled through the words of the oath and declared that she knew about such things because she watched TV. These remarks were the precursors to many passages in her evidence in which she displayed an unusually unsophisticated approach to matters. She struck me as a young woman who, beneath her surface disabilities, had a pleasant naive charm. Her speech was very odd in a number of respects. In the first place, she spoke like someone who had had a stroke. Thus she slurred words. She also spoke in a somewhat childish way and displayed her emotions, including sadness. Indeed at one point she simply broke down in tears and left the witness box. She had got hold of a number of phrases which she used repeatedly in a way typical of a person whose brain and speech have been affected by a stroke-like episode. Thus she repeatedly used the phrase, when talking about how poor her memory was, that this or that "never rang a bell". So when she was asked if she remembered the names of people with whom she worked as a child-minder or the like she would say that their name "never rang a bell". She gave very confused explanations of things and used circumlocutions to get round her inability to retrieve words. She could not, for example, succeed in pulling from her memory the word "substitute" when she wanted to use it. As soon as that word was suggested to her she smiled and agreed that that was the word she had been looking for. It was plain that she completely lost the thread of some questions. She displayed that loss either by asking for the question to be repeated, explaining that she had forgotten what it was about, or alternatively, and more commonly, by rambling on in a confused way giving answers that were hardly relevant to the question asked. Although she could read documents, it was evident that if she read any document of any length she lost track of the earlier part of the document when she came to a later part. Thus her whole manner of speech was confused, jumbled and rambling. Another phrase that she repeatedly used was "Tom, Dick and Harry". It was my impression that a number of such phrases were readily accessible to her and she used them partly because they were familiar and accessible. Some of the matters about which she spoke were matters that people would normally be reticent to discuss. Thus she talked about the perceived undue attention given to her by her parents and said, plainly frustrated, "I don’t need my nappy changing." Despite all her obvious problems she exhibited insight into those problems and was clearly greatly frustrated by her inability to communicate exactly what she perceived to be the effect on her of the injuries and their long term consequences. When she broke down and wept, she simply walked out of the court, excusing herself for doing so. Shortly after returning she announced that she needed to go to the toilet and as she left gave an explanation about problems with her bladder. I noticed that she walked in and out of court waddling rather like an elderly portly person; she walked in a rather flat-footed way as if she had fairly stiff legs. She was shown document 31/4, page 18, containing something she had written. It will be observed that it contains a number of simple errors: for example she says "play" instead of "place" and "In" instead of "If". I got the clearest impression that she was not play-acting in any way whatsoever. I also got the impression that her estimate of what she might be able to do was significantly higher than was realistic. From time to time her answers got very confused and unending. It was plain that she had poor recollection of films that she had seen. She claimed to be able to do some cooking f

The impressions I formed of the pursuer’s condition were very clearly confirmed and fleshed out by the evidence of the various people who had responsibility for her or have examined her since the accident. Thus, Wilma Fleming, her 64 year old carer over the past two years, a person with whom the pursuer seemed to get on well, confirmed all the impressions I formed and have noted above. She remarked that the pursuer was less confident than she affected to be. Hugh McDonald, the pursuer’s father was a very impressive witness indeed. He was clearly not in the least prone to exaggeration. He was frank and obviously deeply concerned about his daughter, her condition and her relationship with her parents, especially her mother, and indeed with the future. Many witnesses spoke to the fact that the pursuer had a very difficult relationship with her mother. It was absolutely clear to me that the pursuer’s mother was doing her very best but that the pursuer vented her frustration and consequent anger especially upon her mother. Both Mr McDonald and his wife suffer from ill-health. They are approaching their mid-60s. Their own conditions of ill-health have been exacerbated by the great stress of dealing with their daughter over the past few years. Mr McDonald described her as being a Dr Jekyll and Mr Hyde character. He said that she would be extremely aggressive to her mother: then, instead of apologising, - which she never did - she would bring her mother flowers. This detail was confirmed by Pauline Moore, the pursuer’s childhood friend. McDonald spoke in detail of his daughter’s behavioural problems. An important factor appeared to him to be her sense that people did not properly understand what her condition was really like, so she suffered much frustration and anger constantly. Mr McDonald considered that the pursuer would always need support. There was ample evidence to corroborate this view and there was no contradiction of it. Alison McMullan, who had long-term responsibility for the pursuer from December 1995 having seen her some 30 times, wrote a full and excellent report (18/1). The only challenge to that was made to her approach was in relation to her calculating the cost of professional caring for the pursuer. It was suggested to her, although the witness would not agree with the suggestion, that "sheltered housing" would be a better solution. Other evidence (e.g. from Mrs Maree Kennedy) bore out the point that there really is no sufficient sheltered housing in the West of Scotland area where the pursuer and her parents live, being accommodation suitable for persons of her age with brain damage. Dr Johnston, speaking as the last witness for the pursuer, confirmed this. It was explained that there was housing for the elderly and for those with learning difficulties (formerly referred to as mentally handicapped persons) but none for young brain-damaged persons. Alison McMullan’s financial estimates and calculations appear to me to be thoroughly thought through and very convincing and I found her an impressive witness. As I have indicated there was no real challenge to her evidence; she had not done psychometric testing, but in the event no evidence of psychometric testing was adduced on behalf of the defender. This witness confirmed that the pursuer was focused on her parents. She was given to making impulsive decisions; she was inflexible, angry at times, and unable to make contact with any people of her own age. If relations with her mother had improved recently it was because her mother had adjusted to take account of the pursuer’s moods and responses, not because the pursuer had succeeded in modifying her own behaviour. Kirsten Galloway was measured, expert and very knowledgable about the pursuer’s needs and prospects. As with other witnesses, she had a deep knowledge of the pursuer. She was uncertain about predicting how the pursuer would cope if she

It is unnecessary for any purpose of this Opinion to repeat in detail the contents of the various reports spoken to in evidence by the witnesses whose evidence, in support of the reports, went largely unchallenged. It is sufficient to note that these reports should be referred to for their contents. In particular, the following reports have been taken into account in arriving at the findings in fact that I have made.

Most of these documents are the subject of agreement in the Joint Minute of Admissions, No. 34 of process. Some were spoken to by their authors.

In the light of all this evidence it is appropriate to make the following findings.

1. The pursuer sustained serious injuries in the accident on 12 January 1994.

2. The history of her treatment and convalescence, and of her conditions and prospects at the time specified, is accurately summarised in Article 4 of the Condescendence and in the above reports.

3. She received brain injuries which put her into a profound coma. She had a rib fracture and a skull fracture and bleeding inside the skull. Her injuries were life-threatening. She was in intensive care for several days. She began to respond to external stimuli after some days. She remained in coma for not fewer than four weeks. Her progress thereafter was slow. She moved from the Western Infirmary, Glasgow to the Southern General Hospital, Glasgow, thence to Gartnaval Hospital, and from there to Law Hospital, Carluke. She also spent time at the Scotcare Brain Injury Rehabilitation Unit for rehabilitation and she has had much medical attention in various places: see the joint minute of admissions (No. 34 of process).

4. She has been left permanently brain damaged. Her personality has been very adversely affected; it is unlikely to improve. She is unemployable in any commercial or professional undertaking. It is extremely unlikely that she will ever be able to engage in remunerated employment. Her principal problems at the present time are still those described - as follows - on page 5 of 18/1 of process.

(i)  Generalised intellectual impairment, with severe impairment of memory.

(ii)  Impaired psychococial function, due to poor temper control, rigidity in thinking and behaviour, and slight disinhibition.

(iii)  A mild degree of anxiety and depressive symptoms, along with specific anxieties (e.g. regarding her speech pattern) and some avoidance of walking in open spaces and on hard surfaces.

(iv)  Slightly widened gait pattern.

(v)  Obesity which is detrimental to her well-being, placing abnormal stresses and strains on all her joints and spine.

(vi)  Residual high level word finding deficit.

(vii)  Reduced ability to perform advanced activities of daily living due to anxiety and cognitive impairments, particularly poor planning/problem-solving skills and memory.

5. If she moves into independent accommodation that would need to be, if at all possible, close to where her parents live so that they might continue, for as long as they are able, to give her support. She will need 24 hour a day support, at least initially. It is by no means certain that she will ever be able to do without such 24 hour support. Unless she loses weight she is likely to suffer from premature arthritic changes.

6. She needs careful expert supervision and support from trained care workers to encourage her to tackle and adjust her intellectual, physical and social disabilities. Her social disabilities are a severe problem for her. She is aware of her problems. She has insight into her difficulties and suffers severe frustration because of them. Her response to such frustration is to become angry at those who seem unable to help her to realise what she believes is her potential. She has difficulties with her speech and with her vocabulary. She can be embarrassingly assertive, because of her frustrations and impatience with others. She appears to be incapable of learning to do any but the simplest tasks or of retaining the ability to do things which she has been taught. She is very self-conscious about  her disabilities and repeatedly refers to them, apologising for them and seeking to explain what the problem is, that she is aware of it and that she does not seem to be able to overcome it properly. Her obesity is a problem not only for her physical health but also for her prospects of a social life. She rejects the notion of associating with those who suffer from mental illness, mental handicap or even physical handicap of a kind which is not the same as her own disability. She is well aware that she is brain damaged and sees herself as quite different from other disabled people who are not brain damaged.

7. She will continue to have severe difficulties with ordinary living. It is not clear that she will ever recover the capacity to do simple tasks like travelling by public transport, crossing roads or even shopping in protected environments without a companion to assist her, give her confidence and help her to avoid, or to get out of, trouble resulting from her condition. Her prospects of making social contact with people of her own age and living anything like a normal life are very poor and it cannot be said that on a balance of probabilities that she will ever enjoy anything like a normal social life.

8. Overall, her psychological problems are very clearly and accurately summarised in 18/2 of process, the said report by Ellison McMullen dated 5 January 1999.

In response to Mr McEachran’s helpful "Schedule of Damages" Mr Brodie, for the defender, supplied the court with a well-presented "Outline Submission on Damages" following the order of the Schedule. The Outline contains a clear summary of his main submissions. It is rightly pointed out there that, despite the admitted seriousness of the pursuer’s injuries and their consequences, there were and are some positive features which fall to be reflected in the assessment of damages to compensate for her loss. It is correct to say that, despite the obvious difficulties, the pursuer still speaks, for the most part, with passably normal verbal skills and that she retains a good vocabulary, despite difficulties in accessing words and notions that she obviously "knows" inside her head but cannot bring onto her tongue. She can, and did, express herself forcibly, indeed aggressively. She is mobile, despite her obesity, though her gait is poor, as noted earlier, and she has difficulties when attempting to walk in public places. She has some manual competence, as narrated in the Outline. She can write and can keep a diary or personal organiser; this she does, and appears to do quite well, in order to remind her what she is supposed to be doing or where she is supposed to be going on any particular occasion. The Outline paragraph regarding "Cognitive Ability" is a fair summary of some of the important positives in the evidence. In relation to "Daily Living Skills" I accept that the pursuer can do the basics, like going to bed, dressing, and personal toilet tasks. She can do light housework; but it would be an exaggeration to say that she can prepare meals, whatever her self assessment in this respect. Whenever the subject of preparing meals was raised, her first instinct was to proclaim her ability to make lasagne. I was left with the feeling that her capacity to make lasagne (just like her frequently proclaimed ability to write cheques) is a kind of verbal fig leaf which she parades to conceal her lack of real ordinary capacity and skills. I heard and read no evidence that persuaded me that she had any ability to prepare meals for herself, apart from possibly making a simple salad, a hot drink or a very simple dish such as lasagne, by adding a prepared filling to a prepared pasta and heating it. She is obviously not to be trusted with ironing, because she forgets what she is doing if distracted, for example by the telephone or by someone talking to her, and she lets the iron burn what is on the ironing board. That happens even now while her parents are around; if she were on her own, the consequences could be very serious. I have referred to problems with her changed personality; she gave up being chairperson of Headway (a self help group of brain-damaged persons) because "it went downhill". Other evidence suggested to me that it was more likely that it simply failed to meet her expectations and needs and she was not achieving with the Headway group what she optimistically hoped from it. Typically, she faulted Headway and those in it, not herself. As to her ability to occupy herself socially, my assessment would be that it will continue to prove impossible for her to make and keep friends. It is just possible that if she makes good contacts with other brain damaged persons of her own age she might be able to establish a lasting friendly relationship. However, her damaged personality seems to militate very strongly against making and keeping friends, quite regardless of her wishes. She can watch TV and does so "a lot". She could possibly learn to use a personal computer for some very limited purposes in respect of which the necessary steps were few and the tasks quite routine in character. I doubt if her memory retention would be nearly good enough to enable her to rise above the simplest routines. I have the gravest doubt if she could operate a computer unsupervised; for I suspect she would be totally non-plussed if anything

I shall, in the light of these general observations, address the heads of damage in the same order as they appear in Mr McEachran’s "Schedule of Damages".

Mr McEachran’s main argument about the basis upon which the court should approach solatium is well summarised in the Appendix to his Schedule. In short, the submission was that, by statute, actions for personal injuries should be tried by jury, unless by agreement or special cause is shown. Thus the judge who has to assess damages must try to work out what a jury would have awarded. Experience, notably in the cases referred to in the Appendix, shows that judges became increasingly out of step with juries and fell behind juries in assessing awards of solatium. One feature of that failure was that, over the years, judge awards did not keep up with inflation. Furthermore there was substantial evidence that public opinion favoured increases in awards for solatium or general damages. That was evidenced by the work and the report of the English Law Commission (Report 257 - April 1999) which recommended that such awards should be increased by a factor of 1.5 to 2. The jury awards in Mill v British Rail, Middleton v Smith, Girvan v Inverness Dairies (No. 2) and Currie v Kilmarnock & Loudoun DC indicated substantial jury awards. The Outline prepared by Mr Brodie responds to this argument under the heading, "Source of Comparitors" (sic). In particular reference was made to the reasoning of Lord Penrose in Martin v James and Andrew Chapman (Haulage Contractors) Ltd 1995 G.W.D. 2-77. The full text of this Opinion was lodged along with the Outline.

In my opinion, Mr McEachran’s approach is not supportable in a court of first instance. One of the features of modern practice in relation to the assessment of damages in Scotland is that awards of damages are explained by judges in great detail and their explanations are then reported. Thus there is built up a very substantial body of material to indicate what judges tend to award in respect of solatium, or general damages, for particular broad categories of injury. This practice has, of course, been followed for a much longer period in England but it is now well established in Scotland. Judges sitting alone then consciously try to achieve reasonable consistency in relation to comparable types of cases. I accept that there may well be powerful arguments for saying that, from time to time, judges should be given guidance by appeal courts, if the opportunity arises, and, in particular, guidance as to the need to vary the level of awards if what might be called the "tariff" awards as reported are subjected to telling and convincing criticisms from informed critics or even if they fall significantly out of line with comparable jury awards. I do not, however, consider that it is the proper role of a judge of first instance to strike out boldly from the paths trodden by his colleagues. It is for appeal courts to lead, as in the Girvan and Currie cases, and indeed much earlier in Allan v Scott 1972 S.C. 59, the case in which, following much professional and public dissatisfaction with the decisions in McCallum 1968 S.C, 280 and 1969 S.C. 85, a division of the Inner House raised significantly the level of damages for solatium. It is my duty to follow, not to lead. In these circumstances, I shall adopt the approach which has been urged upon me by Mr Brodie. His proposed figure for solatium was £75,000, a stark contrast with the £200,000 urged upon me by Mr McEachran. It is difficult to regard Mill v British Rail as a case in line with the generality of awards evidenced by the many cases cited to me, the reference to which are to be found in the Schedule and the Outline. What makes the present case special, in my estimation, is that the pursuer has a very definite insight into the gap between her reach and her grasp. This is a source of great frustration to her and I think it is likely to prove so for the rest of her life. It is not easy to see how she could escape from that daily frustrating sense of disappointment, other than by sinking into a mood of resignation and depression. She has a tendency, especially with her mother, to bite the hand that feeds her. She rejects the ordinary assistance offered by most carers. When she loses her parents she is likely to face a good deal of loneliness. I also emphasise the contrast between what she might have been and what she is likely to be. She is intelligent enough and aware enough to appreciate more vividly as the years pass by that her condition will endure. In the light of all these circumstances and having regard to all the material placed before me, I have come to be of the view that an appropriate award for solatium in this case is £115,000. Mr McEachran invited the court to award interest on 60% of the solatium award at 24%, (being 6 years at 4%). I shall do that. The addition in this respect is therefore £16,560. The total is £131,560.

The past wage loss, including interest, is agreed at £50,000. For future wage loss, the multiplicand is agreed at £9,600 per year. The parties were at issue as to the appropriate multiplier. Once again the difference between the parties was one of principle. In essence, for reasons that are well summarised in the Outline for the defender, Mr Brodie urged me to follow the approach taken by the House of Lords in Wells v Wells [1999] 1 A.C. 345. In that case the House of Lords adopted a net discount rate of 3%, holding that that new rate should be adopted in place of the long-standing higher rate and expressing the view that for reasons fully explained in the speeches that rate should remain until the power conferred by Section 1 of the Damages Act 1996 was exercised by the Lord Chancellor. Lord Hope of Craighead drew attention to the equivalent Scottish provision. Their Lordships did not exclude the possibility of a departure from that net discount rate even if the responsible minister did not act, provided there was a sufficient change in economic circumstances to warrant the change. What Mr McEachran sought to do was to present what I was tempted to describe as a minuscule Brandeis brief to illustrate that the net discount rate should be reduced to 2%. However, I find no basis for departing from the approach taken by the House of Lords in Wells v Wells. There is no basis in the pleadings for advancing such a case. Furthermore, the evidence in support of it is extremely thin. The only witness adduced was Mr Andrew Stevenson, a solicitor, who was shown one page from a recent copy of the Financial Times indicative of a rate in respect of UK gilts of 2% or less. That figure is repeated in the third paragraph of the letter No. 31/2 of process, dated 6 December 1999 from Mr Stevenson, the trust partner in Aitken Nairn W.S.. He also spoke to receiving 31/3 of process, a letter addressed to Messrs Aitken Nairn dated 6 December 1999 showing "preliminary figures with regard to the Structured Settlement". This showed a capital cost of £863,000 to provide an annual payment of £25,000 for the pursuer. This, it was submitted, was the equivalent of applying a multiplier of 34. Under reference to the Ogden tables it was submitted that this 34 year figure corresponded with a 2% discount rate. I did not find the evidence of Mr Andrew Stevenson in these respects very helpful. As the Outline for the defender states "on any view, the evidence of Mr Andrew Stevenson provides an altogether too insubstantial basis to allow the court to [adopt a rate lower than 3%]". I consider that the arguments advanced under head 2 of the Outline for the defender are compelling. I find no basis in the pleadings or in the evidence for departing from the 3% figure agreed by the judges, including two Scottish judges, in Wells in the House of Lords.

Once that is settled there remains no dispute between the parties that it is appropriate to start, for this purpose, by using the guideline figure derived from Table 16 of the actuarial tables contained under the appropriate head in McEwan and Paton on damages. That figure is 19.19. It was submitted for the defender that there would also need to be some discount for contingencies in assessing future loss of earnings. (These are not contingencies of the kind discussed in Wells v Wells). In my opinion, this submission is sound. The pursuer’s solatium claim reflects to some extent the unlikelihood of her forming a relationship which would result in her having children. This is a matter which she plainly regretted and there is every reason to believe, but for the accident, she would have sought to have and bring up children. Accordingly, Mr Brodie’s submission that there should be some discounting for what would have been likely breaks in employment, including breaks due to having children, should be accepted. The pursuer could have looked forward to a working life which might have extended, with breaks, for something of the order of 30 years. If she were to have children it is not at all unlikely that she would have lost perhaps 5 years of work while bringing the children up to school age. However, having regard to her occupation, as a person with professional training and substantial experience in dealing with children (narrated in 30/1 of process) she would have been likely to have been able to make better adjustments between her work and her family commitments than most other women in different types of job would be able to do. In these circumstances I think that the proposed reduction from 19.9 to a multiplier of 16 is unduly severe. I would, in the circumstances, choose a multiplier of 17. This gives a total of £163,200.

This is an agreed figure, inclusive of interest, of £65,000 plus £3,000 outlays in respect of hospital visiting. The agreed total is therefore £68,000.

The pursuer’s claimed a "conventional figure" of £5,000. The defender’s Outline indicates that no issue is taken with the proposition that £5,000 be awarded under this head; in his submissions Mr Brodie conceded that this was an appropriate head of claim. In the circumstances I shall make an award of £5,000 under this head.

This sum is agreed at £3,400. It is calculated by applying the rate of £24.00 to the number of weeks that have elapsed since the commencement of the arrangements described in the letter from independent living funds dated 29 April 1997 (No. 15/1 of process). The sheet attached to 15/1 entitled "How we worked out our offer" discloses that the pursuer is to make a weekly contribution of £24.75 out of her "available income". This available income consists of social security benefits which are paid to the pursuer for day to day living costs. In these circumstances, given that these benefits were never intended to be retained by the pursuer as a capital fund producing income in the form of interest or otherwise, I consider that the pursuer’s claim for interest on this expenditure is not made out. I accept the defender’s submission that it is not "appropriate to allow interest on this sum [£3,400], it not being money the use in which has been improperly denied the pursuer. Rather the purpose of the care component of DLA [Disability Living Allowance] is to provide care." The total figure is therefore £3,400.

There is no dispute between the parties that a multiplier/multiplicand approach is appropriate. In the course of the submissions the parties were at issue both in relation to the multiplier and in relation to the multiplicand. In relation to the multiplier, parties were agreed that the court should approach this upon the basis that although the pursuer is 31 years of age she should be treated for the purposes of the relevant Actuarial Tables as a 36 year old, in view of the undisputed medical evidence that her life expectancy has been reduced by 5 years. The determination of the multiplier is a straightforward matter of reading Table 12 of the Actuarial Tables on the basis of the appropriate rate of return. The pursuer seeks, however, to apply a 2% rate of return for the same reasons advanced in support of the multiplier for future wage loss. The defender submits that it is appropriate to assume a 3% rate of return, again for the reasons advanced in relation to the future wage loss head of claim. For the reasons already discussed it is my opinion that the defenders are right in this regard. It follows that the multiplier is 25.01; this is the figure appearing in Table 12 (multipliers for pecuniary loss for life (females) in respect of the 3.0% rate of return.

The next issue to be resolved is the amount of the multiplicand. This depends crucially upon the level of care likely to be required in the future and the cost of such care. In this context, it is necessary to have in mind both the positive and the negative features of the pursuer’s condition. Although this has already been referred to in connection with other aspects of the claim. It is important to take note of these features in this specific context. I think it is clear that the defender is right to submit that the focus must be upon the pursuer’s likely needs. What kind of help will she need when she starts to live independently of her parents? For how many hours a day will she require to be accompanied, helped or closely supervised? Would it be reasonable to expect that she could be left alone, either at night or for parts of the day? The defender argues that there has been no assessment of the pursuer’s needs when living independently. There is an element of truth in this because the pursuer has never lived independently since the accident nearly six years ago. In point of fact, the evidence shows very clearly that currently she does depend, and for some time has depended, upon both parents, despite her resentment of aspects of that dependence. I would not regard the pursuer’s expressions of opinion about her needs and capacities as being reliable guides for this purpose. Wilma Fleming’s evidence is strong support for the view that the pursuer needs somebody whenever she goes out because she needs someone to hold onto, someone to give physical support in situations frequently encountered, someone to assist her when the unexpected happens. Her agoraphobia is continuing. She needs someone to assist her if she goes out for entertainment, whether to theatres, cinemas or clubs or social visiting (for example, visiting Wilma Fleming’s own family). Such expeditions provide the only likely opportunities for social intercourse in the future. It is also important to emphasise that the relationship between the pursuer and Wilma Fleming is unusual; Wilma Fleming seems to be able to adjust to the features of the pursuer’s personality that cause friction with so many others who have been brought in to perform the role of companion and helper. Such carers must be difficult to find among those who offer their services professionally. The pursuer’s father did not attempt to exaggerate the pursuer’s behavioural problems; but his reluctant depicting of her as Jekyll and Hyde, aggressive, frustrated, angry and inflexible, and suffering from build-ups resulting in outbursts, points strongly to a need for caring supervision to enable the pursuer to cope with serious mood swings. Mr McDonald makes it clear that her poor ordinary living skills, her poor short-term memory and her impatience (borne of frustration) seriously impair her actual performance of simple household tasks. Whether cooking or ironing or using the microwave oven, she is not reliable. This is, in my view, a matter of real importance. Few people live in detached bungalows where their errors may endanger only herself. Particularly in urban Scotland, people live in flats or groups of houses with several storeys and common walls. A person whose living skills are significantly impaired through age, illness or addiction and who lives in such premises presents dangers to neighbours as well as to herself The needs of the pursuer must be assessed not only on the basis of what risks she may run through impaired living skills but also with an eye to the risks she might present to others in her neighbourhood. It is also of importance to notice that, despite the difficulties in their relationship, the pursuer’s mother had to give up work to look after the pursuer. This is a fairly objective measure of her dependence at least at present. When one looks at the Recommendations by Scotcare (18/1, page 6) it is seen that 24 hours’ support initially is

Kirsten Galloway was a professional in the field of care management. Although her evidence bears primarily upon the claim for care management costs she obviously had to assess the pursuer’s needs and she did so. She relied on information from others, such as is contained in  18/1 of process, and also upon her own observation and experience. As her own report, 19/3 of process, narrates the pursuer was already known to her from her period of assessment/rehabilitation at the Scotcare National Brain Injury Rehabilitation Unit where the witness was an occupational therapist. In her report, dated 12 August 1999, Miss Galloway assesses the pursuer’s present circumstances and problems. The report is a very substantial one and I do not find it necessary to repeat all its terms here. However, I draw attention to paragraph 10.16 where the witness deals with the pursuer’s most recent experience. As is narrated there, the pursuer still requires 24-hour supervision. In paragraph 10.18 "Future Care" it is stated "Alison will require 24-hour support in her own home although in time this may be reduced. Given the extent of her cognitive and emotional deficits she will require an overnight carer. In paragraph 11.2 the witness expresses her view that a case manager should be considered and explains why. In paragraph 15.1 she notes and details certain "almost obsessional traits". It is also noteworthy that she envisages that the pursuer would require to be accompanied on any holiday. In evidence, she expressed the view that although it could become unnecessary for the pursuer to have an overnight carer it was impossible to tell, and it would not be possible to do so until it became clear that she could cope (if it ever did). One of the fears was that if the pursuer awoke in the night there was no guarantee that she could think logically. She would be at risk if she were to be alone and some untoward incident happened, such as a burglary or a fire or other such alarm. She was also very anxious to make friends and thus might be vulnerable to exploitation. It could be a long time, possibly months, possibly years before she could adapt to anything short of 24 hour care. The witness was not optimistic about finding sheltered accommodation for the pursuer given her age and general circumstances. That was one of the circumstances leading her to the view that a case manager would be required as explained in her report. In cross-examination, she developed these themes. What the pursuer was getting at the present time from her parents included both "hands on" time and non-intrusive supervision. Her significant cognitive problems would mean that she faced a very big risk if she were to be alone. If the pursuer’s father thought otherwise, the witness disagreed with that. After 6 years since the injury it was difficult to say that the pursuer’s confidence would improve. One of the pursuer’s problems was that she underestimated her own needs; she was not a reliable witness in relation to these needs. The witness was concerned that even although it might be said that the pursuer could get out of bed and could get dressed and could feed herself there was simply no guarantee that she would in fact do so if there was no backup to encourage her and prompt her to do so. There was also the point that people with head injuries did not adapt well to change. The pursuer would need to be taught skills and strategies for living alone. The witness would not regard it as feasible for the pursuer to be left unassisted and unsupervised for something like three quarters of her time, waking and sleeping. She simply did not have the ability to structure her own free time. That was one of the considerations pointing to the need for a care manager. Another was her unfortunate experiences of being unable to get on with carers. She described the pursuer as "a very complex case".

Mrs Maree Kennedy was not able to add very much but she did express the view that it would be difficult for the pursuer to cope overnight because of her lack of confidence and her inability to cope with any untoward incidents in her house. Like other witnesses she envisaged that overnight support would be required at least in the beginning but was unable to estimate for how long such support would continue to be required. There was a 24 hour community care alert system which was useable by a person who could use the telephone. It was free.

Against this background counsel for the pursuer supported the calculations contained in the Schedule of Damages under the heading 5, "PAID CARE". On the basis of 24 hour cover and the figures obtained from the reports the pursuer calculated that the full rate of care would be £63,179 per annum. This figure is calculated in 19/3 of process and is brought out at paragraph 10.23. In paragraph 10.24 it is envisaged that her care package could be reduced slightly and that this would result in a saving. On this basis what was sought was a multiplicand of £50,000: see paragraph 10.25 of 19/3 of process. The counter argument rested upon a critique of the pursuer’s evidence; no evidence was led for the defenders to contradict the pursuer’s witnesses. It was submitted on behalf of the defender that the evidence adduced for the pursuer did not provide a detailed appreciation of the pursuer’s needs in the immediate future, and still less did it do so in the longer term. The criticisms are summarised in paragraph 5.2.2 of the defender’s Outline. It was not disputed on behalf of the defender that the past provided a guide to the immediate future. It was not disputed that the pursuer would continue to require some degree of domestic help and support both for shopping and social outings. It was not disputed that she would require daily attendance. What was submitted was that, given her actual skills, she would not require supervision and assistance 24 hours per day in the medium and long-term. In particular she would not require a paid overnight sleeper. The risks of fire and burglary were small and the pursuer did not present as one who was likely to be taken advantage of. She could use the telephone and was capable of summoning help if required. (I should add that I personally was a little surprised that no one made any mention of modern systems for discovering who is calling at a house. Such systems include the use of internal phones, television cameras which enable the householder to identify the caller and electronic locks which can be operated by the householder if he or she is satisfied that the intruder should be allowed in).

I am left with the clear view that initially the pursuer would require to have 24 hour care, including an overnight sleeper. It is impossible to predict the future with any accuracy, not least because the pursuer has not in fact tried independent living; and nearly six years have elapsed since her accident. However, it is not difficult to envisage that with advice she could be provided with technical assistance which would make her life easier. Many domestic appliances can be adapted for ease of use by and to reduce the risks to persons whose skills are impaired. Obvious examples are ordinary domestic furniture like taps and baths and showers and cooking facilities: there are well known familiar systems for making these readily and safely useable by persons handicapped by some form of impairment. There are failsafe systems for many electrical appliances. There are modern ways of improving the security for a person living alone. There are other modern ways of summoning assistance if it is required.

It cannot be denied that the pursuer’s future requirements are shrouded in some uncertainty. The pursuer’s counsel has sought to reflect that uncertainty by reducing the annual multiplicand from £63,000 to £50,000. I think that is a good start. The defender invites the court to estimate the number of hours required by the pursuer and to obtain an annual cost by applying to that number of hours a figure of about £6.50 per hour, that figure being based upon the various rates which have been helpfully specified in paragraph 5.2.3 "Cost of Care". I do not feel that I can properly make a precise calculation simply because of the uncertainties involved. It is my impression from the evidence that the pursuer would take some time to adapt to independent living. At the beginning she would require 24 hour care. On the other hand, at the beginning, it is likely that additional help and assistance would be provided to her by her parents and also by Wilma Fleming who has shown considerable devotion her task. However, all of these people are in their sixties and I suspect as they cease to be able to provide that assistance the pursuer’s need for care will not diminish. Thereafter, my impression of the pursuer is that, provided real care is taken to make life as simple for her in her own accommodation as can be done, she will be able to achieve and will in fact take comfort in a degree of independence and being left alone. So I would envisage that the cost could come down within a few years. The other factor, however, is that as the pursuer gets older the problems of living alone could start to increase. The fact that she is so overweight and suffers other health problems suggests strongly that she is more susceptible to incapacitating or impairing illnesses as she grows older and that she will, in effect, be ageing prematurely. I feel it is necessary to resort to a very broad axe approach to this question. I do not think that the material before me enables me to make a sophisticated and precise calculation on a yearly basis of the amount of care required per day or per week or indeed of its precise character. I consider that if I take 12.5 years (being one-half of the 25 year multiplier) as a broad estimate of the likely requirement for something close to 24 hour care for the pursuer both at the beginning of her period of independent living and as she becomes older and cost that at £50,000 per year and if I add to that 12.5 years at £25,000 per year I should not be doing injustice to either party. (The figure of £25,000 is not taken as one half of the £50,000 suggested by the pursuer but is calculated on the basis that she is likely to require paid assistance for something like ten hours per day at those times when she is otherwise able to live on her own. That brings out a figure of just under £24,000 per year, but I make allowance for contingencies by rounding it off to the figure of £25,000). The result is that I arrive at a figure of £937,500 in respect of this item of claim.

The parties are at issue as to the necessity of the appointment of a case manager. In any event, says the defender, the pursuer has not established the necessity for the large number of hours on the basis on which the claim is calculated or indeed the rates mentioned in Kirsten Galloway’s report 19/3 at paragraph 11 et seq. The specific reasons advanced by the defender are set out on pages 14 and 15 of the outline submission. In short, they are that neither the pursuer nor her parents favour the idea; assistance is available from the Social Work Department in procuring care; that is in addition to the provision of carers by agencies; there is an element of double charging in the way the costs are made up. In any event both the hours claimed and the rates are not established in evidence and are excessive. There can be little doubt, in my opinion, for reasons explained earlier, that the pursuer’s case is a complex one in respect of care management. It is important to have regard to the pursuer’s history of contact with carers. Apart from Wilma Fleming and one other carer who was with her for a short time only, the pursuer’s experience of working with carers has not been successful. This is due, in my opinion, not to objective deficiencies in the carers but to difficulties stemming from the pursuer’s changed personality. I do not see how it can just be left to a busy local authority to select and train carers who could adapt successfully to the pursuer’s actual needs. Someone is required to plan the rotas, to reassess the degree of care, to assist in the planning of social and other activities and to decide when a lesser expertise or a change of personnel is required. It appears to me to be clearly established that the case for a case manager has been made out. I do not consider that the figures produced in 19/3 by Kirsten Galloway were seriously challenged. There was no contrary evidence led, although it was acknowledged that this matter had been investigated on behalf of the defender. The source of each of the figures spoken to by Ms Galloway is fully explained and vouched in the report. These sources were not impugned. The precise calculations were not challenged. Accordingly I hold that the case for providing a care manager has been established. I accept the pursuer’s submission that the total for the first year ought to be £9,250 as calculated on page 6 of the pursuer’s schedule. As to the future, however, it appears to me to be inevitable that the pursuer’s life will settle down once she has started to live away from her parents’ home and as she adapts to the withdrawal of immediate support by her family and by Wilma Fleming. Taking the multiplier as 25, and deducting one year in respect of the first year for which allowance has really been made, I would propose to adopt a similar broad approach to that I have adopted in relation to future care costs, so as to take account of the fact that the input from a care manager would be likely to be substantially less after a period of time. Again I acknowledge the fact that I do not have the material to make a precise calculation that would reflect reasonable certainties about the future course of events. As with the care costs themselves it does appear to be quite probable that there may a reduction in the need for care management after a few years and an increase in the need for care management as the pursuer becomes much older. An appropriate method of dealing with this would be to allow the full rate for one-third of the period, two-thirds of the rate for one third of the period and one-third of the rate for the remaining third of the period. It appears to me that the uncertainties built in to this approach do not require me to add figures in respect of the pursuer’s claim "for contingencies". Accordingly, it would be sufficient to take the figure of £7,750, which depends upon the evidence of 19/3 of

Item 7 EQUIPMENT AND ALTERATIONS

The sum of £1,792 as agreed.

These costs as claimed are specified in the pursuer’s Schedule, paragraph 8. The figures for particular items of cost are derived from 19/3 of process. It was not disputed on behalf of the defender that there would be extra costs; but there are challenges to particular items and the challenges are summarised in Outline, paragraph 8. As with the previous items, I am satisfied that the multiplier is as suggested by the defender, 25.01.

Telephone: I think the claim is well made out by the considerations set forth in paragraph 21 of 19/3. The figure claimed is at the minimum rate of £3.64 per week, giving a total of £189 per annum.

Heating: I consider that the basis of claim is properly made out in paragraph 14 of 19/3. The pursuer claims at the minimum weekly cost, of £5.36 which is therefore the figure appearing in the Schedule. However, some allowance must be made for the fact that the pursuer is elsewhere treated as going out on fairly frequent social excursions and going away for holidays away from home. Making some allowance for these factors I would arrive at an annual figure of £250.

Laundry/Clothing: These items of claim are well supported by the reasoning and information in 19/3, paragraph 15. The pursuer invites me to accept the minimum figure of £1.62 for laundry and £2.14 for clothing and bedding. These figures were not challenged in evidence. I consider them to be acceptable and I therefore allow £84 per annum and £111 per annum respectively.

Holiday: The extra holiday cost cannot be the whole cost of the holiday but must be the extra expenditure for being accompanied by a carer. On the other hand, it appears more likely than not that had the pursuer not had the accident she would have been going on holiday with a friend and sharing accommodation and thus would have been able to achieve the savings that persons can achieve by sharing accommodation rather than seeking single accommodation. Nonetheless, the items detailed in paragraph 18 are difficult to quantify. In point of fact the pursuer has had only one holiday since her accident. It could be that the disruption to her life would be such that regular holidays away from home might be unduly burdensome. In these circumstances I can only take a broad axe approach to the matter. I consider that a figure of £500 per annum would be adequate in respect of this item.

Social Activities: Again we are estimating the extra cost incurred by taking the carer to the cinema or other place of entertainment. However, the pursuer is quite likely to go on some occasions either with relatives or with friends. In the circumstances I consider that the defender’s suggested figure of £10 per week (£500 per annum) is adequate. The annual total of these figures is £1,634. Applying a multiplier of 25 yields a figure of £40,850.

The pursuer claims £855 under this heading. This head of claim is not disputed and £855 will therefore be allowed.

The issue here is whether or not this is a recoverable head of claim at all. The pursuer’s claim is based upon the evidence of Andrew Stevenson. His evidence is effectively contained in 31/2, a letter which he drafted. What it says is that if the pursuer is awarded say £1,000,000 in damages the costs of investing this sum in index linked gilts and other stocks, and management, will be calculated at the rate of 1.0% for the first year (i.e. £10,000) and that there would be continuing costs at the rate of 0.25% per annum (£2,500). The actual sum in each case will vary with the value of the investments at the material time but the percentage rates will not change. In effect Mr Stevenson added nothing to this in his evidence. However, it was plain both from his evidence and from the heading of this claim that these costs were based upon the view that the sums involved would be invested not solely in index linked gilts but in other investments on the basis of advice given by professional experts, such as stockbrokers. The letter, it will be noted, does not offer any information as to the split between the cost of professional advice and any other outgoing, such as brokerage costs. The claim, however, is, in my opinion, an attempt to let the pursuer have her cake and eat it. The whole basis of the multiplier is the assumed rate of return in respect of investment in index linked gilts. In terms of investment possibilities, that basis is probably generous to the pursuer in a case such as the present at the present time. I think that it is widely understood that financial advisers would support the view that in the long-term a better return in terms of capital growth and a satisfactory return in terms of income would be likely to be obtained by judicious investing in a range of investments with reviews on a regular basis by market experts. So if the pursuer, on advice, chooses to invest in ways that require professional guidance by such experts and to incur the brokerage costs that would be necessitated by making and changing investments and any further costs on realisation of investments and reinvestment, I am not persuaded that the defender should meet these additional costs. The lump sum of damages should compensate the pursuer for her loss. What she chooses thereafter to do with that lump sum of damages is not a matter which, in my opinion, should incur costs for the defender. Accordingly I would reject the pursuer’s claim as presented. On the other hand, it seems certain there will be some costs incurred in determining what to do with the sum awarded. There might therefore be an argument that there ought to be some recognition of that inevitable cost and that it ought to be reflected in the award itself. The pursuer’s advisers, however, have not sought to provide the court with any basis at all for estimating any such costs. There is simply no evidence before the court to enable any such estimate to be made. As the defender has challenged this claim, as there is no basis for it laid in the Record, and as no evidence has been provided to the court, I am not in a position to put a figure on such a cost. I had thought of making a notional award to recognise that the pursuer will incur some cost but I can find no solid basis for estimating a figure at all. The pursuer will no doubt seek advice and may well be advised, as the formulation of this claim envisages, to invest both in gilts and in other stocks and to pay for management. I am unable to tell from any material presented to me what charges might be made in respect of general investment advice as distinct from costs and charges involved in investing in index linked gilts. In the circumstances I make no award under this head.

The total of the pursuer’s claim is therefore arrived at by adding these figures. The total figure is £1,526,157.

As the defender is two-thirds to blame and the pursuer is one-third to blame, I shall award the pursuer £1,017,438. At the request of the parties I shall put this case out By Order before signing any interlocutor. I invite parties to check my calculations before I sign the interlocutor and to draw my attention to any errors.

I have been greatly assisted by counsel in approaching the many questions that arise in relation to the quantification of the claim. I think it is very important in a case of this kind that parties should co-operate to produce one or more documents setting forth clearly the heads of claim, the extent of agreement, the extent of disagreement and the outlines of the submissions of parties in relation to the areas in dispute. There is, however, one other matter which I mentioned at the conclusion of his Proof. The burden upon judges in now so great that I would regard it as bordering upon the intolerable for judges to be receiving material in the form in which it came to be presented to me in this case. As will be seen from this Opinion, and from the Schedule and the Outline, I was referred to many cases and other documents. These were supplied to me in various forms. In some cases, photocopies of the whole or parts of opinions or other material from printed publications were supplied. In some cases material taken off the internet was supplied. In some cases material printed from a CD Rom was supplied. In some cases copies of opinions as issued by the court and stored in the Advocates’ Library were produced. It is, of course, very helpful to have all this information in accessible form because it is important that the judges should have ready access to the authorities which they are asked to consider. But it appears to me to be important that the judge is not swamped, as I felt was happening to me, by wave upon wave of photocopied documents, unnumbered, unindexed and largely unmanageable. It is no doubt a matter for consideration by the Court itself. But I should have thought that parties should be obliged to lodge such material before or at the commencement of the Proof so that the judge has time to consider it before and during any hearing. Furthermore, there seems to be no good reason why the parties should not be required to co-operate so as to produce the material in a legible, accessible, and organised, indexed form preferably in one volume. Judges should not be required to retire from the bench and spend the first part of the evening sorting through the papers, and the copies of productions, in order to identify those which have to be consulted for the purposes of deciding the issues before him, indexing them, stapling them and removing duplicates and superfluous documents. I should make it clear that I am not directing criticisms at those involved in this case. The practices have remained largely the same over the years but, not having sat in the Outer House in such a case for nearly a decade, I observe at once that matters such as the assessment of damages have become substantially more complicated. The practice in relation to the presentation of material for the use of the judge remains, however, in the Dark Ages. It is surely time for a change.