O'Brien's Curator Bonis v British Steel Plc
| Jurisdiction | Scotland |
| Judgment Date | 26 April 1991 |
| Date | 26 April 1991 |
| Docket Number | No. 34. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Weir.
ReparationDamagesPersonal injuries or deathMeasure of damagesFuture care in nursing homeDeduction of personal costs from multiplicandAppropriate multiplierAppropriate use of Ogden Tables.
ReparationDamagesPersonal injuries or deathMeasure of damagesNecessary services by relativeAppropriate multiplier.
The curator bonis to an incapax who had sustained serious injuries in the course of his employment with the defenders reclaimed against the Lord Ordinary's awards for future care in a nursing home and for future services to be rendered by her in looking after the incapax at home, on the ground that they were too low. On the question of future care in a nursing home the Lord Ordinary (Weir) had taken as a multiplicand the annual cost of such care, which was 11,200, deducted 3,920, which represented personal costs, on the ground that these would be covered by the agreed sum for future loss of earnings, and increased the resulting figure of 7,280 to 8,000 to take account of the possibility that theincapax might need more costly care in the future. The reclaimer argued that the deduction for personal costs, which represented food, clothing, heating and lighting, should be reduced to 1,000 to allow for the cost of food only. Regarding the appropriate multiplier, the Lord Ordinary had accepted that the life expectancy of theincapax, who was aged 41 at the date of proof, would be about 30 years and had selected a multiplier of 11 based on the figure for future loss of earnings, which was 10. The reclaimer argued that the appropriate multiplier could be at least 16 on the basis of arithmetical calculations demonstrating that the fund resulting from a multiplier of 11 would be totally exhausted in 16 years, while that resulting from a multiplier of 16 would be sufficient for about 29 years. A figure of 17 was accordingly suggested on her behalf. It was further suggested that the court should adopt the proposals of the working party which had compiled the Actuarial Tables with Explanatory Notes published by H.M.S.O. (the Ogden Tables), to use multipliers based on the assumption that funds were to be invested in index-linked stocks discounted at a rate of 2 to 3 per cent, rather than the traditional discount rate of between 4 and 5 per cent. The tables showed that even on an assumption of 4 per cent interest a multiplier of 16.1 would be appropriate in this case. Finally, on the question of the pursuer's future services to the incapax, there was no dispute about the multiplicand based on agreed annual cost of services during home visits, but the multiplier, which was the same as that for future care in the nursing home, was again challenged as being too low.
Held (rev. judgment of Lord Weir) (1) that it would normally be appropriate to resort to the use of a multiplier in all cases where earnings would be lost or costs incurred over a future period of years and in cases where experience could be relied upon as a guide to what was reasonableand claims for future loss of earnings would usually fall into that categoryit would be sufficient to rely on the figures used in comparable cases without resort to more sophisticated methods of calculation, even as a check; (2) that the court could take judicial notice of the Ogden Tables and the report of the working party by way of general background and that it could be assumed that the calculations which they reflected were accurate as a matter of arithmetic, but it was not right for the court to use the tables as a starting point in order to determine the multiplier appropriate to the cost of future care in the present case although that did not mean that they could not be used as a check on a multiplier arrived at by other means; (3) that the Lord Ordinary's choice of a multiplier in respect of future care in a nursing home, based on the figure for future loss of earnings, was unreasonable as a longer time factor was involved and, in view of the facts that 15 or 16 would cover the period of life expectancy and that there was a slight risk of reduced life expectancy due to epilepsy, the appropriate multiplier was 15; (4) that the Lord Ordinary had been right to adopt the same multiplier for future services as for future care in a home as he accepted that the marriage would last and that the reclaimer's life expectancy exceeded that of the incapax, so that that figure should also be 15; and (5) that the only deduction in respect of personal costs should be for food, as heating and lighting could not be separated from the cost of accommodation, so that the multiplicand for future care should be increased to 11,000 and reclaiming motionallowed.
Mrs Theresa Mary Docherty or McWilliams, curator bonisto Bernard O'Brien, raised an action of damages against theincapax's former employers, British Steel plc, in respect of injuries sustained by him on 5th August 1984 in the course of his employment with the defenders. The defenders admitted liability and the matter came before the Lord Ordinary (Weir) for proof on certain heads of claim and also on the matter of quantum. His Lordship made awards for the cost of the future care of the incapax at a specialist care centre and of future services to be provided by thecurator. The terms of the Lord Ordinary's opinion appear sufficiently from the opinions of their Lordships in the Inner House.
The curator reclaimed against the Lord Ordinary's awards on the ground that they were too low.
The reclaiming motion called before the First Division, comprising the Lord President (Hope), Lord Allanbridge and Lord Cowie, for a hearing thereon.
At advising, on 26th April 1991,
LORD PRESIDENT (Hope).The pursuer in this action is the curator bonis to Bernard O'Brien, who sustained very serious injuries on 5th August 1984 while working in the course of his employment with the defenders at their Clydesdale Works, Bellshill. Theincapax was so severely disabled by his injuries that he is incapable of giving proper instructions for the management of his affairs. The defenders had admitted liability by the time the case came before the Lord Ordinary for proof, and many of the heads of the claim for damages were also agreed. The claim took the form which has become familiar in cases of persons whose injuries have resulted in permanent and severe disablement. In addition to claims for solatium and loss of wages and for the future expenses of the curator, the pursuer claimed the cost of nursing care up to the date of the proof together with the cost of the future care of the incapax at the epilepsy centre at Quarrier's Village, Bridge of Weir, of specialist care for his particular needs in the future and of motoring expenses. There was also a claim for the services of his wife up to the date of the proof and in the future which was made in terms of sec. 8 of the Administration of Justice Act 1982. The only items which remained in dispute at the proof were the claim for the cost of future care at Quarrier's Village and the claim for Mrs O'Brien's future services. The Lord Ordinary made awards under these two heads, both of which have now been challenged by the pursuer in this reclaiming motion on the ground that they are too low.
The Lord Ordinary has described the tragic background against which he had to arrive at his decision in this case, and it is not necessary for me to repeat what he said. The incapax has been living at Quarrier's Village since September 1988 when he was admitted to the epilepsy centre there because the stress of looking after him at home had proved to be too much for his wife and family. He returns home for a visit on alternate weekends and has an occasional week-long stay there, but the Lord Ordinary was satisfied that he is going to require special attention for the rest of his life and that there is no alternative to institutional care. He will remain for the foreseeable future and possibly permanently at Quarrier's Village, although it is possible that he may at some time in the future be moved to another establishment which is more suited to his particular disability. The calculation of damages under the head of cost of future care proceeded on the assumption that the cost of residence in these institutions will have to be met from private funds. There were therefore two points which the Lord Ordinary had to decide. The first was the appropriate figure to take per annum as being the annual cost of supporting theincapax at Quarrier's Village. The second was the appropriate multiplier to apply to that cost in order to compute the amount of the award. The only point which the Lord Ordinary had to decide in regard to the claim for future services by Mrs O'Brien was the appropriate multiplier, since there was no dispute about the annual cost of these services.
It is convenient to deal first with the Lord Ordinary's decision about the annual cost of future care, since no issues of principle arise here and the point turns simply upon the interpretation of the evidence. This consisted of a letter from Dr Jane Gray, a consultant physician at Quarrier's Village, which sets out the annual cost of residence there as at the date of the proof. The weekly charge paid by all residents in the epilepsy centre was 215.22, which amounted to 11,200 per annum. But it was agreed that a deduction had to be made from that figure to avoid duplication with what was covered by the award for loss of earnings. The deduction is for what has been described as the domestic element in the cost of the future care, the theory being that this element is a cost which the incapax would have incurred anyway if there had been no accident and which his curator should therefore meet out of the award for future loss of earnings. The reasons for this are explained by Lord Scarman in Lim Poh Choo v. Camden and Islington Area Health AuthorityELR [1980] A.C. 174, at pp. 190192. The defenders'...
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