Frank William Fletcher As Guardian Of Lisa Smart V. Christopher Lunan
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Neutral Citation | [2008] CSOH 55 |
| Date | 20 March 2008 |
| Docket Number | PD187/07 |
| Court | Court of Session |
| Published date | 01 April 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 55 | |
| PD187/07 | OPINION OF LORD CARLOWAY in the cause FRANK WILLIAM FLETCHER as Guardian of LISA SMART Pursuer; against CHRISTOPHER LUNAN Defender: ________________ |
Pursuer : Mackay QC, RG Milligan; Bonnar & Co,
Defender : Stephenson; The Anderson Partnership
20 March 2008
(a) General
[1] On 27 October 2002 at about 1 am, Lisa Smart, then aged twenty one, was walking with a friend along Main Street, Saline. They had been at a social function at the local golf club. They had reached a point on the road with no pavement on the side along which they were walking. As they continued, they were both hit by a car driven by the defender, who was well over the legal limit for alcohol when driving. The defender was convicted of a contravention of section 2 of the Road Traffic Act 1998 (dangerous driving) and sentenced to two years imprisonment. Miss Smart suffered a serious head injury.
[2] In May 2007, on the pursuer's motion, a four day proof restricted to liability was allowed. This was fixed for 15 January 2008. However, not long before it was due to commence, the defender admitted liability and the parties agreed that the degree of contributory negligence would be assessed at fifteen per cent. An eight day proof on quantum was then requested and this has been allocated in March 2009. The defender has made two interim payments to the pursuer, one of £150,000 and one of £100,000. The pursuer now seeks interim damages of an additional £500,000.
[3] The terms of the Rule of Court (43.11) are familiar. They permit the court to ordain a defender to make an interim payment of:
"such amount as it thinks fit, not exceeding a reasonable proportion of the damages which...are likely to be recovered by the pursuer".
The court must accordingly determine the amount of damages which are "likely to be recovered" before it can order the payment of the "reasonable proportion". Although this exercise will, in part, involve the court estimating what it might award after a proof, the rule instructs a broader approach. The proportion is to be of the amount which the pursuer is "likely to recover". Most (but certainly not all) cases, especially those involving catastrophic injuries such as the present one where liability is not in dispute, settle in advance (or on the day) of the diet of proof. That settlement will, for a variety of reasons, be for less (sometimes substantially less) than a pursuer's often optimistic valuation but more (sometimes substantially more) than a defender's parsimonious assessment. Settlements tend not to depend upon precise arithmetical calculation but on broad estimates of the strengths and weaknesses of each side's figures. The court ought to take a similar broad axe with a blunt blade approach to its estimate of likely damages recovery, before fixing the "reasonable proportion" on a relatively conservative basis (see my remarks in D's Parent & Guardian v Argyll and Clyde Hospitals 2003 SLT 511 para [5]; Lord Hodge in Lennox v Bishop 2005 SCLR 1107 at paras [13-14]; and Lady Dorrian in Taylor v Sands [2006] CSOH 186).
(b) Miss Smart's Condition and Care
[4] In support of the application, the pursuer presented a schedule of damages totalling over six million pounds. The defender countered with one amounting to less than £450,000. It is not in dispute that Miss Smart is presently resident in the Bandrum Nursing Home, Saline. She is functionally tetraplegic, with movement only in her fingers and the toes of one foot. She is conscious and communicates mainly by using a hand held buzzer. She has a tracheostomy in situ and is fed through a tube. There are two major areas of dispute. The first is the level of Miss Smart's cognitive function, notably her ability to express a desire on where she is to live. The second is her life expectancy.
[5] The pursuer referred to a report (6/2 of process) from Dr Alan Carson, consultant in neuropsychiatry, who examined Miss Smart on 23 December 2006. This states (p 14):
"I would consider it as absolutely inevitable given the severity of her initial injuries that a significant and highly limiting degree of cognitive impairment will be present, and this will be the major rate limiting step on her future function. This will now have reached a static level and will not improve further...[E]even allowing for more sophisticated communication techniques, I do not believe that she has the capacity to make all but the most basic of choices".
Dr Carson notes that, nevertheless, one choice that she has made is to be cared for at home. He continues:
"There is nothing about her current care needs that could not be done on a home basis, and I cannot detect any medical reason to contradict home management. In particular, her current placement is a nursing home without direct medical cover, and indeed for any medical emergencies it would be the same general practitioner who would deal with both. It is, however, clear that she would need input from qualified nursing staff on a 24 hour basis if homecare were to be attempted".
Having examined various other aspects of Miss Smart's situation, Dr Carson concludes (p 16):
"Thus, although there will be a number of practical considerations which will need to be overcome, I would in this case enthusiastically endorse the idea of home care, and I felt that her parents had made mature and sensible decisions in this regard".
[6] The pursuer also founded upon a report (6/24) from Michael Barnes, Professor of Neurological Rehabilitation, who saw Miss Smart on 30 August 2007, and writes (p 8):
"...it is very likely...that she will have significant impairment of cognitive and intellectual functioning. However, it is equally clear that she has a significant level of awareness of her immediate environment and can interact at a reasonable, but simple, level with her environment and with her family and carers".
Dr Carson refers to Miss Smart having a "slightly reduced life expectancy" (p 17) but Professor Barnes concludes (p 14) that her life expectancy is reduced by around 50%, that is to say from 61 years to 30.5 years (per the Ogden Tables), on the basis that she continues to have high quality care, therapy and appropriate equipment.
[7] The defender relied upon a report (7/5) from Dr WJK Cumming, consultant neurologist, who saw Miss Smart on 28 July 2004 and 12 April 2006. Dr Cumming did not consider that she was understanding speech, processing information or replying appropriately to questions (paras 9.11-12). He gained the impression that her cognitive function was lower than those around her might think. Although he accepted that an independent (home) care regime might be set up for her (para 9.70), he considered that to be extremely difficult in practical terms. He regarded her present environment in the nursing home as "safest" and the "best" facility for her needs (paras 9.71-79). Dr Cumming originally gave her life expectancy at between four and seven years...
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...[21] – [27]; see, also, Freeman v Lockett [2006] PIQR P23, Tomlinson J at paras [5] – [7], [29] and [32]; Fletcher (A Guardian) v Lunan [2008] CSOH 55, Lord Carloway at para [9]; McGregor on Damages, 19th edn (2014) at paras 38-186 – 38-189). The proper assessment of damages requires that a......