Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 48

 

PD1350/15

OPINION OF LORD UIST

In the cause

SANTHONG PHENSRISAI

Pursuer

against

ANONG YUTIKAN

Defender

 

Pursuer:  Grahame QC, Hastie;  Digby Brown LLP

Defender:  Shand QC, Brain;  Brodies LLP

23 March 2017

Introduction
[1]        The pursuer was born in Thailand on 6 March 1965 and brought up there.  He was formerly a Buddhist monk for about 25 years.  He came to the United Kingdom in 2002 to teach meditation in a temple in Wimbledon in London.  In January 2012 he left the monastic life in order to acquire a PhD degree.  He started his PhD course at St Mary’s University, Twickenham in October 2012 under the supervision of Professor Geoffrey Hunt.  His thesis related to euthanasia in Buddhism in Thailand and was to take three years to complete.  While carrying out his research he did some part-time work at Brixton and Thameside Prisons in London and also some freelance work as an interpreter and translator.  On 24 December 2012 he was the front seat passenger in a car travelling from London to Edinburgh driven by the defender.  There were three Buddhist monks, whom he knew well, in the rear seat.  He fell asleep in the course of the journey and woke up in hospital with serious injuries to be told that the car had been involved in an accident.  The accident was caused by the defender losing control of the car at a corner on the A68 road near Pathhead, causing it to collide with an oncoming vehicle.  The three monks were killed in the accident. 

[2]        In this action the pursuer seeks damages for the loss, injury and damage sustained by him as a result of the accident.  As liability was admitted, the case went to proof only on the question of the amount of damages to which the pursuer is entitled.  I heard evidence from the following witnesses:  (1) the pursuer;  (2) Professor Margaret McQueen, Professor of Orthopaedic Trauma at the University of Edinburgh;  (3)  Professor Geoffrey Hunt, Professor of Philosophy at St Mary’s University, Twickenham;  (4) Dr Rory Mackenzie, formerly a lecturer in Theology and Religious Studies at the International Christian Centre in Glasgow;  (5) Dr Colin Rodger, Consultant Psychiatrist;  (6) Dr Sophie Hicks, a general practitioner at Leith Walk Surgery, Edinburgh;  and (7) Mr Arthur Espley, a retired consultant orthopaedic surgeon.  Witnesses (1) to (5) were led on behalf of the pursuer and witnesses (6) and (7) on behalf of the defender.  The pursuer had also led on commission prior to the proof the evidence of Naowarat Nelson, a Thai therapist who had known the pursuer for over 12 years. 

 

The pursuer’s injuries:  solatium
[3]        Evidence about the pursuer’s injuries came from the pursuer himself, Professor McQueen, Dr Hicks and Mr Espley.  His condition as summarised by Professor McQueen from a review of the hospital case notes is as follows: 

“Mr Phensrisai was brought to the Accident and Emergency Department of the Royal Infirmary of Edinburgh on 24^th December 2012.  It is recorded that he had been a restrained front seat passenger in a head on collision and the vehicle in which he was travelling subsequently rolled on its roof.  Mr Phensrisai was complaining of back and chest pain.  On examination he was tender over the mid-thoracic spine and had right posterior scalp lacerations.  He had no neurological abnormalities.  X-rays were stated to show left upper posterior rib fractures and a CT scan is stated to have shown a sternal fracture, fractures at T5/6 and he was given analgesia. 

 

Mr Phensrisai was admitted to the Thoracic Surgery Unit when he underwent orthopaedic review on 24^th December 2012.  It was noted that Mr Phensrisai was complaining of pain mainly in his back but had no other current pain after being a front seat passenger in a road traffic accident.  He was noted to be neurologically intact in the upper limbs and to have C6/7 fractures and T5/6 fractures.  It was advised that he continue wearing a collar and the Neurological Department had been contacted.  Later that day it is recorded that following a consultation with the neurological registrar on call Mr Phensrisai had to continue with a hard collar and special precautions.  It was thought that he might require surgery for his thoracic spine once his chest injuries had stabilised.  Later that day also it was noted that the CT report had shown the following injuries: 

 

1. Unstable mid-thoracic fractures at T5 and T6.
2. Sternal fracture.
3. Fractures of the left fourth to sixth ribs.
4. A neural arch fracture of C6/7 with alignment maintained.

 

There was no evidence of interabdominal injury or head injury.  Mr Phensrisai was subsequently catheterised. 

 

There is a further note from Thoracic Surgery dated the 24^th of December 2012 which notes that following discussion with the neurological consultant on call it was noted that the cervical fractures were likely to be stable but that the thoracic fractures would need intervention.  Mr Phensrisai was subsequently transferred to the Western General Hospital on 25^th December 2012. 

 

Mr Phensrisai was admitted to the Western General Hospital on 25^th of December 2012 when it was noted that he had a sternal fracture, rib fractures, C6/7 spinous process fracture and T6 and T7 compression fractures.  It was thought that the T7 fracture could be unstable.  No neurological deficit was noted.  On the 28^th of December 2012 it was noted that Mr Phensrisai had had an MRI scan the previous day and had multi-level vertebral fractures but no cord compression.  Later on that day it was noted that Mr Phensrisai was neurologically intact and not in pain and could sit up in bed but had to wear his collar at all times. 

 

On 31^st of December 2012 it was noted that Mr Phensrisai’s neck pain had improved and he had no neurological problems.  It was noted that Mr Phenrisai had been discussed with Mr Yacoub and he was to have conservative management.  It was noted that he should start mobilising as his pain allowed.  Subsequent notes indicate that Mr Phensrisai was gradually mobilised with physiotherapy and by 8^th of January 2013 it was noted that his pain was improving and he had no neurological abnormality.  On the 9^th of January 2013 it was noted that an MRI scan and x-ray showed a worsening kyphosis but it was noted that Mr Phensrisai was mobilising independently.  On the 11^th of January it was noted that he had a mild gibbus at T6 but was doing well and he was discharged home that day. 

 

Mr Phensrisai was reviewed in the Neurological Outpatient Clinic on the 21^st of January 2013.  It was noted that his thoracic pain had decreased and he was off ibuprofen and was taking paracetamol.  X-rays of the cervical and thoracic spine were noted to be similar to previous appearances and the thoracic spine x-ray showed collapse of the T6 vertebra with anterior bridging.  There were no neurological abnormalities. 

 

Mr Phensrisai was seen again on the 4^th of February 2013 when it was noted that he was well.  X-rays of the cervical spine were stated to be similar to previously with no significant deformity.  The x-ray of the thoracic spine was also noted to be similar to previous imaging.  He was seen again on 25^th of March 2013 when it was noted that he had sustained posterior element fractures of C6 and C7, T5 vertebral body fracture and a T6 crush fracture, fracture of the sternum and multiple ribs on the left side.  It was noted that he was no longer using his hard collar and that his symptoms were slowly improving although he still had intermittent movement associated pain affecting the left side of the chest over the area of his previous rib fractures.  It was noted that he also sometimes had pain in the sternum and the mid-thoracic spine, particularly when walking.  He also had some neck pain in bed at night and was occasionally using a soft collar for comfort.  It was noted that he remained neurologically intact.  It was advised that he start physiotherapy.”

 

[4]        When the pursuer was examined by Professor McQueen on 23 July 2013 he told her that he still had pain in the mid-thoracic area of his back and left upper chest pain, that his back was sore if he sat unsupported, but that he was able to walk and stand for 15 to 20 minutes.  He said he was sorer first thing in the morning but that the pain eased about 10 minutes after he did physiotherapy exercises.  He could dress and undertake his personal hygiene without difficulty.  He was unable to drive as he got spasms in both hands and lacked confidence, but could travel as a passenger with a pillow to support his back.  He could manage a bus but his back became sore, particularly if the bus jolted.  He had lived with a friend since the accident as he could not afford living on his own.  He was able to do only light housework and could not use a vacuum cleaner.  He could do small amounts of ironing daily and could go shopping, but was uncomfortable when doing so.  He was able to carry on his main leisure activity of reading but could no longer use large books.  He was able to do voluntary work as a Buddhist chaplain, but could not bow or do sitting meditation, which required him to sit upright unsupported with crossed legs.  His social life was affected as he no longer went running with friends.  He was unable to lie flat in his bed at night and therefore sometimes had difficulty getting comfortable.  He awoke frequently on two to three nights per week.  He took two to six ibuprofen tablets per day. 

[5]        When Professor McQueen examined the pursuer she found that he could stand erect and that his gait was normal, but that he was very cautious and slow in all movements.  There was no tenderness in his spine.  A good range of movement in the thoracic spine was restricted by sternal pain.  There was a slight kyphus in the thoracic spine.  There was a good range of movement in the cervical spine.  He had no neurological abnormalities.  He was tender in three discrete areas in the sternum and tender to light touch over the whole of the left anterior chest.  There was pain on compression of the chest, but chest expansion was normal with no pain during the manoeuvre. 

[6]        Professor McQueen concluded from the history and her examination that the pursuer had sustained cervical and thoracic spine fractures, a sternal fracture and rib fractures as a result of the accident.  His spinal fractures were treated non-operatively with a collar on his cervical spine which he retained for a period of approximately three months.  He had received, and was then continuing to receive, physiotherapy.  He required assistance with his personal care for three months, which was reasonable.  Clinical examination did not reveal any major deformity in the thoracic spine.  There was no tenderness in the neck or thoracic spine and a good range of movement, which suggested that his spinal fractures had healed.  It was a typical outcome of such spinal fractures that an individual would have difficulty with prolonged sitting, standing or walking and with the heavier aspects of daily life.  In relation to his apparently severe left chest pain, clinical examination had revealed evidence of abnormal illness behaviour with tenderness in multiple areas in the sternum and the whole of the anterior chest on light touch only.  There was pain on chest compression, but no pain elicited when he was distracted.  Chest wall pain could be fairly prolonged after three rib fractures and a sternal fracture, but generally for several months.  Professor McQueen had some difficulty in explaining the area of tenderness in his chest as it was much wider than the area of the rib and sternal fractures.  He also appeared to have very severe tenderness with tenderness to light touch in this area.  She thought his psychological state might be influencing his perception of the symptoms and disabilities in his chest, but that was outwith her area of expertise. 

[7]        Mr Espley examined the pursuer on 27 August 2015.  He agreed with the opinion of Professor McQueen.  He found some evidence of inappropriate behaviour on examination of the pursuer.  He felt that the stated level and widespread nature of his pain and disability over two and a half years after the accident was greater than he would have expected for the injuries sustained.  He accepted that the healed spinal deformity was likely to be uncomfortable on certain activities.  He would have expected the pursuer’s chest, left shoulder and upper arm pains and his neck discomfort to have largely recovered within 12 to 18 months of the accident.  The GP records suggested that by October 2014 the quality of his social life was good and that he was sleeping comfortably.  He thought that the pursuer was very apprehensive about his ability to cope with the activities of life and specifically with maintaining the standard meditation position.  The pursuer appeared to be unaware of the importance of a graduated programme of increasing physical activity and he had therefore strongly advised him to increase his physical activity.  He expected that the pursuer’s symptoms would continue to improve further over the following year, leaving him with relatively minor thoracic symptoms.  His T6/7 compression fractures might give rise to a certain amount of mid-back discomfort, which should be compatible with most activities of work, play and daily living, excluding heavy lifting.  Any osteoarthritic changes which he might develop around his thoracic fractures should not cause significant long term problems in terms of mobility or level of pain.  No further treatment such as physiotherapy was considered necessary at that stage provided the pursuer continued with his prescribed exercise programme. 

[8]        Dr Hicks, the pursuer’s GP, first saw him when he came to the surgery on 25 January 2013.  He was in a hard collar and required the assistance of the district nurse for collar care a minimum of twice weekly.  On 1 February 2013 he telephoned Dr Hicks to enquire about a wheelchair.  She saw him again on 9 April 2013 when he had been discharged from neurosurgery but was being followed up by orthopaedics for his back.  He was awaiting physiotherapy.  His sister was about to leave for Thailand and he was nervous about not having her.  Dr Hicks reviewed him on 12 June 2013.  He was improving slowly.  He had been told by orthopaedics that no surgical intervention was required and that it could be 12 to 18 months before he fully recovered.  On 8 November 2013 he told Dr Hicks that he was due to go back to London in January and was unsure if he felt ready to do so.  He was still attending physiotherapy.  On 13 November 2013 he was discharged from physiotherapy, which he had first attended on 3 May 2013.  The discharge summary stated as follows: 

“Much improved pain and function with time, exercises and advice.  Has been gradually increasing general activity levels and is feeling ready to go back to university in London in January.  No further input is required and the residual sternum ache he still experiences occasionally should ease over time.”

 

On 12 March 2014 jobcentreplus wrote to Dr Hicks informing her that the pursuer, who had been claiming employment and support allowance, had recently been assessed for his ability to work and it was decided he was capable of work from 5 March 2014.  On 19 May 2014 the pursuer saw another doctor in the practice, Dr Gisu Cooper.  He complained of pain on and off in his chest wall and said it was worse than when he had made the appointment.  He said that he had been assessed by an expert who had told him that “the pain was in his head.” He was not using analgesics and was keen to receive any input which might help his pain which had no physical basis.  He agreed to be referred to the pain clinic.  On 30 May 2014 the pain clinic wrote to the pursuer informing him that they had been unable to contact him by telephone and if he wished an appointment he should telephone them within 14 days, failing which he would be automatically discharged.  On 6 October 2014 he saw yet another doctor in the practice, Dr Jay Swann, in order to discuss a private psychiatric report which he had received in June of that year (Dr Rodger’s report, referred to below) and which recommended the commencement of anti-depressant medication.  Dr Swann noted that he was doing well, coping with the pain without analgesia, using meditation, and had adjusted his sleeping posture so that he could sleep pain free and well.  His appetite and energy levels were good, he enjoyed time with friends and singing and playing the guitar.  His motivation was good and he was carrying out physiotherapy twice daily to help with the pain.  Dr Swann did not diagnose any depressive illness.  His speech was normal, he was euthymic and reactive, smiling and laughing and had no thoughts of self-harm or suicide.  There was no evidence of psychosis or mania and he had good insight.  He agreed that he was doing well and did not require anti-depressants, but said he would come for review if he developed a depressive illness or was struggling in the future, when medication could be further discussed. 

[9]        On 23 May 2014 the pursuer was examined by Dr Colin Rodger, Consultant Psychiatrist, of Insight Psychiatric Services, Edinburgh at the request of the pursuer’s solicitors.  He told Dr Rodger that following the accident he experienced psychological difficulties with anxiety about car travel for fear of being involved in further accidents and also difficulties with disrupted attention, concentration and memory and anxious ruminations about his changed circumstances.  Dr Rodger  stated his opinion as follows: 

“I consider that Mr Phensrisai’s psychological difficulties represent a chronic Adjustment Disorder (DSM-V diagnostic code 309.9) which, on the balance of probabilities, has been precipitated by the accident on 24 December 2012 and his associated physical difficulties and limitations which would not have been likely to develop if this accident had not occurred.  This is on the basis that an Adjustment Disorder involves the development of emotional or behavioural symptoms in response to an identifiable stressor occurring within three months of the onset of the stressor, and that these symptoms are clinically significant, involving marked distress and/or significant impairment in social or occupational functioning. 

 

I consider that Mr Phensrisai continues to suffer with a mild chronic Adjustment Disorder and his mental condition is amplifying his perception of pain and disability which is, in turn, impeding his functioning and promoting ongoing psychological stress, which perpetuates his Adjustment Disorder.  This would be my explanation for the observations noted by Professor McQueen regarding Mr Phensrisai’s abnormal illness behaviour.”

 

Dr Rodger then went on to recommend a course of treatment with anti-depressants which, as stated above, the pursuer did not follow up after discussion with Dr Swann.  On being referred in the course of his oral evidence to the note of the pursuer’s consultation with Dr Swann on 6 October 2014, Dr Rodger’s response was that this suggested that the pursuer had improved since he had seen him on 23 May 2014 or that he was presenting as improved to Dr Swann.  The fact that he was then studying for an MSc degree was consistent with that. 

[10]      I am satisfied that the physical injuries and symptoms suffered by the pursuer as a result of the accident were as stated by Professor McQueen and Mr Espley in their reports and oral evidence, with the exception of the continuing left sided chest pain of which the pursuer complained.  There was no organic cause for this pain and the pursuer showed signs of illness behaviour when examined.  Moreover, I am not satisfied that Dr Rodger was correct in his diagnosis of a mild chronic adjustment disorder.  The pursuer was referred to Dr Rodger by his solicitors in a forensic context, not by his GP in a clinical context.  He had not previously consulted his GP in connection with any psychological difficulties.  He saw Dr Rodger on 23 May 2014, Dr Rodger’s report is dated 3 June 2014 and he did not consult his GP about psychological difficulties until he saw Dr Swann on 6 October 2014, when his history and presentation were inconsistent with an adjustment disorder or depressive illness.  The pursuer, as was only to be expected and as anyone would be, was clearly mentally affected by his injuries, but I consider that Dr Rodger was too pessimistic in diagnosing a chronic adjustment disorder.  Accordingly, solatium falls to be assessed leaving out of account continuing left sided chest pain and chronic adjustment disorder. 

[11]      For the pursuer reference was made to Wylie v Omniasaig SA 2013 SLT 46;  Dickie v Khandani 2012 [CSOH] 122;  Palmer v Millwall 2001 CLY 1563;  Maynard v Oliver [2003] 3 QR 6;  and the Judicial College Guidelines, chapter 6.  For the defender reference was made to Munnoch v Tay-Forth Foundries Ltd [2007] CSOH 159 and Wilson v North Star Shipping (Aberdeen) Ltd [2014] CSOH 156.  In light of my findings about the nature and extent of the pursuer’s injuries, the awards in these cases and the figures provided in the Judicial College Guidelines I assess solatium at £30,000, of which two thirds is attributable to the past.  Interest will run at 4% per annum on the portion referable to the past from the date of the accident until the date of decree.

 

Past services
[12]      This claim is based on necessary services rendered by the pursuer’s sister Khanitta Phensrisai after his discharge from hospital during the period 14 January to 10 April 2013.  She came from Thailand to care for him and did virtually everything for him on a daily basis over the period of her stay.  She was, in effect, a full-time live-in carer.  This is not, in my opinion, a case where the award for services can be based on an hourly rate, but rather one where a broad approach requires to be taken.  I consider the sum of £5,000 sought by the pursuer under this head to be entirely reasonable and therefore make an award in that sum.  His sister’s air fare is unvouched but, in light of the sum of £515 which the pursuer paid in advance for the same flights, modestly assessed at £560.  Interest will run on the sum of £5,000 at 4% per annum from 14 January to 10 April 2013 and from 11 April 2013 to the date of decree at 8% per annum.  Interest on the sum of £560 will run at 8% per annum from 14 January 2013 to the date of decree. 

 

Past wage loss
[13]      The pursuer’s net annual pre-accident earnings from part -time work, mainly chaplaincy and interpreting fees, amounted to £3, 059.  My opinion, based on the evidence of Professor MacQueen and Mr Espley, is that the pursuer could have resumed such work a year after the accident and that he is therefore entitled to one year’s loss of earnings, amounting to £3, 059, with interest at 4% from 1 January to 31 December 2014 and from 1 January 2015 at 8% per annum until the date of decree. 

 

Future Wage Loss
[14]      Professor Geoffrey Hunt has been Professor of Philosophy at St Mary’s University, Twickenham since 2001.  He has spent 42 years in academia.  He is involved mainly in research and raising funds.  He has a cohort of PhD students and is mainly in charge of supervising them.  He was the Director of Studies and supervisor of the pursuer, who began his PhD studies on 1 February  2016.  He explained that a PhD thesis has to be original and publishable, have depth rather than breadth and the candidate had to do field research, which the pursuer had done.  It was quite tough work, required application and commitment for three years, sustained concentration, intelligence, a background in the field, and the proposal had to be accepted by the academic authorities.  A PhD was the highest accolade in academia.  It was agreed with the pursuer that he would have to go to Thailand, probably twice, to collect government documents, interview health workers and visit hospices, working in two languages, Thai and Lao, as well as English and Pali.  The pursuer had first applied in 2012.  He worked during October, November and December.  His research was into euthanasia policy in connection with Buddhist ethics, particularly in Thailand.  He saw the pursuer between three and five times, in addition to his induction. 

[15]      He had first met the pursuer in 2003 or 2004 when visiting a Buddhist temple in London for meditation practice.  He was the Buddhist chaplain at the University of Surrey and in 2010 or 2011 he asked the pursuer if he would be interested in doing a PhD.  There were very high prospects of the pursuer completing his PhD in three years because of his dedication, commitment and concentration.  He was also already knowledgeable in the field.  He did not remember discussing with the pursuer the specific question of subsequent employment following upon the completion of his PhD.  The pursuer talked of an educational post at a university as he wanted to help others.  He thought the pursuer might have found a post in Buddhist Studies, which were flourishing.  Asian and Chinese studies were developing.  He thought the pursuer’s prospects of finding a post were good, but it was not easy to get an academic post in any field except electronics.  Two of his PhD students out of ten or twelve had become lecturers.  The pursuer worked in a very narrow niche area.  His understanding was that supply was less than demand in this area.  He thought that the pursuer would have found a job perhaps within more or less a year of completing his PhD as his having been a Theravada monk would have put him in a very strong position of credibility. 

[16]      So far as Professor Hunt’s personal dealings with the pursuer were concerned, he had first seen him after the accident at his friends’ flat in Edinburgh on 21 January 2013.  He was not able to turn very much to greet him, to get up from his chair or bend forward or move his neck.  His comprehension was not normal and he thought he was in a pretty bad way.  He seemed very poorly and it was obvious that he had skeletal injuries.  He could not at that time envisage him returning to his PhD work within six months and suggested to him that he take leave of absence.  At the end of that period he suggested another period of six months, meaning the whole of 2013.  A maximum of one year’s leave of absence was allowed, after which the candidate had to re-apply.  In the course of 2013 he had contact with the pursuer about eight or ten times by email or phone.  At the end of his leave of absence the pursuer was clearly not very well and sounded rather despondent that he had maybe lost his opportunity to do a PhD.  Although he had not decided not to proceed with his PhD, he looked into the question of studying in Edinburgh, where he had a support system.  He told the pursuer to do a master’s degree in Edinburgh and advised him that it would be easier if he continued in the same subject area.  His major concern was that the purser should not become demoralised and give up on the whole plan.  During 2014 he continued to have email and phone contact with the pursuer and went through the different options with him until he focused on an MSc in religious studies.  He encouraged the pursuer to follow that course.  The pursuer was awarded an MSc in 2015.  He saw the pursuer in London in December 2015.  The pursuer had already asked if he could start up where he had left off with his PhD.  He contacted the Faculty office to ask if any concession could be made and was told that that was not possible and that the pursuer would have to start from scratch and go through the induction process again.  His getting through his MSc had improved his inter-faith knowledge and spoken English.  His dissertation had been related to euthanasia and he was raring to go and get on with his PhD at the end of 2015.  There was no hard and fast rule that a student had to live within a certain distance of the university at which he was doing his PhD.  He would like the pursuer, if living in Edinburgh, to visit and attend seminars, as long as he was in touch by email.  Some students lived abroad.  His mobility was the main problem earlier on.  He had a support system in Edinburgh, but not quite the same network in London.  He envisaged the pursuer taking three years to complete his PhD, making it easier for him to get a lecturing job within a year after that. 

[17]      Dr Rory Mackenzie was until July 2015 a lecturer in theology and religious studies at the International Christian Centre in Glasgow, which was validated by the University of Aberdeen for granting degrees.  He had a special interest in Thailand as he had been a missionary there for twelve years and had done a PhD in new Thai Buddhist movements.  He had known the pursuer for about 13 years.  He got to know him when he came to Edinburgh to officiate at Buddhist ceremonies.  He would meet him two or three times a year at Portobello Town Hall, where the Thai community met.  He was one of the five monks officiating and sometimes he would give a talk.  He was used a lot by the temple in London as he spoke English.  In 2012, when he was studying for a PhD at St Mary’s University, he asked Dr Mackenzie to act as his second supervisor, but he could not do so as he did not have a background in medical ethics.  Professor Hunt invited him to be the pursuer’s second adviser.  Before 2012 he had gathered some materials for the pursuer and had had conversations with him about the scope of his study, probably by email, possibly by phone and quite possibly at the Thai temple in Edinburgh.  He was quite confident that the pursuer would complete his studies as he was quite a determined character and had left the monastic life to pursue his doctoral studies.  He thought the pursuer would take four years to complete his PhD as most students took four years.  He thought three years was optimistic but within the realms of possibility.  On this he would defer to Professor Hunt as a more experienced academic.  He had every confidence that the pursuer would complete his studies successfully.  The pursuer had mentioned to him that he would like to lecture in the UK on completion of his PhD.  He thought the pursuer would be an attractive prospect as he spoke Pali, had been a monk for 25 years and spoke English.  He would not be able to get a job if he did not speak English.  The popularity of Buddhism was not, in Dr Mackenzie’s opinion, a particularly critical issue.  He did not have a view on the pursuer’s prospects of employment.  A junior lecturer would start at £30,000 per annum, increasing over six years to senior lecturer at £39,000.  His understanding from looking at job adverts was that there would be an automatic increase each year. 

[18]      He had seen the pursuer in intensive care in hospital within hours of the accident, and thereafter possibly twice a week during his stay in hospital.  He had been physically damaged but showed great courage and fortitude.  He waited to see how long his recovery process would take.  After his discharge from hospital he visited him at home each weekend.  He was always mentally positive and hopeful.  He moved slowly, seldom slept and needed care.  He was not in a fit position in 2013 to resume his studies.  He struggled to move around in the first few months and would struggle with the rigours of the outside world.  He visited him each week in 2014.  He felt he had made a good choice not to return to St Mary’s University in 2013 as he would not have had the capacity to concentrate for sustained periods.  He was living in Edinburgh with two former monks.  After discussion they agreed that he should try to get into Edinburgh university to do a PhD and remain in the city, having regular contact with students and lecturers and not having to spend a long time in travel.  Ultimately he was not able to get onto a doctoral programme as there was insufficient supervision available.  He was accepted for an MSc, which was a taught programme.  He met up with him on a weekly basis and found that he coped well with the programme and made friends with his fellow students, but he was not sure that he noticed any appreciable change in his mood.  He had thought it best that he should do the MSc and then go on to do the PhD afterwards as the MSc would give him a good framework for working in the British academic system. 

[19]      Dr Mackenzie was now the pursuer’s external adviser or second supervisor for his PhD, for which the validator was Liverpool Hope University.  He thought that if the pursuer completed his PhD within four years he would have done well.  He had no reason to think that the pursuer had changed his mind about a lecturing position.  Although he could be wrong, he expected the pursuer to complete his PhD.  He could not say what the pursuer’s prospects of obtaining a job as a lecturer were.  He had attractive features.  Jobs came up in different places.  He could not say how long it would take the pursuer to obtain a lecturing job, which would have to relate to Buddhism.  His MSc had probably helped him become more critically aware and enhanced his writing skills and also his job prospects.  He had indicated some time ago, well before he approached Edinburgh University to do a PhD, that he would like to have a teaching job in the UK.  There was currently a job advertised in South Asian Studies at Bristol University, but he could not say how many people would be applying for it.  His Pali language would have been highly significant for that job had he then been able to apply for it.     

[20]      I am satisfied, on the basis of the evidence of Professor Hunt and Dr Mackenzie, that the pursuer would have been likely to have achieved his PhD within four years of the accident, that is, by January 2017.  The next question is whether it is likely that he would have gone on to become a lecturer thereafter.  While I am in no doubt that the pursuer had, and has, a sincere and earnest ambition to become a lecturer on completion of his PhD, I am not satisfied that it is an ambition which he is likely to achieve.  He has no experience in the field of full-time professional employment.  Although he can speak and understand English reasonably well, his spoken English is frequently difficult to understand because of his pronunciation.  This would have been bound to present an obstacle for him at any interview for a lecturing post.  The evidence which I heard about the availability of posts for which he would be qualified was mainly anecdotal in nature.  There was no concrete evidence given about the number of posts which have arisen in the past or are likely to arise in the future or of the competition for such posts.  Without knowing these facts I think it is not possible to make any realistic assessment of the pursuer’s prospects of becoming a lecturer.  Dr Mackenzie, who was very well acquainted with the pursuer, was not prepared to venture any opinion on the pursuer’s prospect of obtaining a lecturing post on completion of his PhD.  I consider that any conclusion about what the pursuer would have done after obtaining his PhD is entirely speculative in nature and that his claim for loss of earnings by reason of the delay in achieving his PhD (on my assessment of the evidence, a period of one year) has not been established.  I therefore make no award under this head. 

 

Loss of earning capacity
[21]      The pursuer claims £15,000 for loss of earning capacity based on the evidence of Professor MacQueen that he will remain compromised on the labour market due to his difficulties with prolonged sitting, standing, walking, bending or heavy lifting.  On the evidence led I am not satisfied that he has suffered any loss of earning capacity.  It is unlikely that the pursuer would have sought any form of employment which he would now be excluded by reason of the injuries he sustained.  I note also that since the accident he has carried out work as a cleaner and also that he has been able to study for an MSc. 

 

Lost Items
[22]      The pursuer claims for various items which are said to have been lost in the accident, including an iphone and laptop computer.  The defenders opposed any awards for these two items, submitting that there was no evidence about what happened to them.  The pursuer gave clear evidence, which I accept, that these items were lost in the accident and he is therefore entitled to be compensated for them.  The award which I make under this head is £1,939.  Interest will run on the different portions of this award at the rates and from the dates shown in the pursuer’s schedule of damages until the date of decree. 

 

Miscellaneous costs
[23]      I shall allow £1,747 for abortive PhD fees, £515 for the fare for an aborted flight to Thailand, £90 for swimming lessons and travel and £500 for the additional cost of the new PhD from early 2014, making a total of £2,852, with interest at the rates and from the dates shown in the pursuer’s schedule of damages.  I disallow the claim for the cost of the MSc, which in my view does not flow from the accident, and in any event the pursuer now has the benefit of this post-graduate degree. 

 

Decision
[24]      I shall award total damages, exclusive of interest, in the sum of £43,410.  It will be for the parties to provide an agreed calculation of interest.  I shall appoint the case to call By Order for the figure for interest to be provided to the court, the question of expenses dealt with and decree pronounced.