Janet Hill And Nicholas Hill As Joint Financial And Welfare Guardians Of Simon Hill Against Highland Health Board
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2016] CSOH 146 |
| Date | 13 October 2016 |
| Docket Number | A272/11 |
| Court | Court of Session |
| Published date | 13 October 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 146
A272/11
OPINION OF LORD KINCLAVEN
in the cause
JANET HILL AND NICHOLAS HILL
As Joint Financial and Welfare Guardians of Simon Hill
Pursuers;
against
HIGHLAND HEALTH BOARD
Defenders:
Pursuers: Di Rollo QC, Fitzpatrick; Digby Brown LLP
Defenders: Dunlop QC, Hamilton; NHS Central Legal Office
13 October 2016
Introduction
[1] In this reparation action, the pursuers seek to exclude certain averments (proposed by the defenders by way of Minute of Amendment) on the grounds that the averments concerned are irrelevant et separatim lacking in specification. The averments bring into question the extent to which the defenders in a personal injuries action may be held liable for the costs of future care, where the pursuers seek to insist upon private funding, without establishing a Personal Injuries Trust (“PIT”), and where (following upon a joint minute) the extent of agreed liability may be insufficient to sustain such care in the long term.
[2] The pursuers seek damages of £12 million, as the Joint Welfare and Financial Guardians of Simon Hill (“Simon”) to whom they owe fiduciary duties by virtue of sheriff court interlocutors. The interlocutor of the sheriff at Dingwall dated 3 May 2013 in terms of Part 6 of the Adults with Incapacity (Scotland) Act 2000 is produced as No. 6/32 of process (and see also No. 6/132 of process). The first pursuer is Simon’s mother and the second pursuer is Simon’s brother. Simon was born on 20 February 1980. He suffered severe injuries on 6 October 2006, as a result of a fall, and is now an incapable adult in terms of the 2000 Act by reason of those injuries. The pursuers seek to hold the defenders liable in damages for Simon’s injuries, alleging that they were caused by the defenders’ fault and negligence.
[3] The contentious averments relate to the quantification of damages. The defenders aver (in Answer 7 of the “Working Print” of the Closed Record, No. 46 of process) that:
“Simon’s accommodation and care at the [specified] Centre are received by him at minimal cost to him. That will remain so in the event of any damages awarded in the present claim being paid into a Personal Injury Trust (“PIT”)...” [“the first passage”]
“The creation of such a trust would represent reasonable mitigation of Simon’s loss. A reasonable person charged with looking after his own affairs and faced with the choice of paying for the care and accommodation at the Centre or arranging a PIT and obtaining such care and accommodation free or at minimal cost would invariably opt for the latter. It would not be reasonable to decline to set up a PIT in such circumstances. The costs related to the creation and maintenance of a PIT are accepted by the defenders as being a legitimate head of claim in the present action...” [“the second passage”]
“Separatim and in ant (sic) event the home care package averred as necessary by the pursuers is not one which is feasible or sustainable in the longer term. The present action now proceeds on the basis of damages agreed at 50% of the sum agreed and awarded by the Court. On the pursuers own averments, such a sum will be insufficient to support Simon in the home care regime for which it is contended.” [“the third passage”]
[4] There is also a Joint Minute (No. 26 of process), in terms of which the parties have agreed:
“that the Defenders shall be found liable to make reparation to the Pursuers to the extent of fifty percent (50%) of the loss, injury and damage suffered as a result of the accident to Simon Hill (‘the Adult’) referred to on Record.”
[5] A proof before answer was allowed on 30 May 2012, and split between liability and quantum on 26 February 2014. A proof on liability and contributory negligence was appointed to proceed on 17 June 2014, and thereafter discharged upon receipt of the parties’ Joint Minute (supra) on 20 June 2014. Following sundry procedure and extensive further adjustment of the Minute of amendment for the defenders (No. 20 of process) and Answers thereto for the pursuers (No. 22 of process) a hearing to debate the outstanding issues of parties was fixed and consideration of the adjusted Minute and Answers was continued to that hearing which proceeded before me.
Submissions for the pursuers
[6] The pursuers contended that the first and second passages (at page 38D – 39B of the Working Copy Record) seek to assert that, in calculating the amount of future damages, the pursuers should not be awarded a sum to reflect the actual cost of Simon’s future care. It was submitted that there is no basis in law or averment of fact for such an assertion. On the contrary, the pursuers are entitled as of right to require the wrongdoer to make reparation rather than rely on funding from the local authority or health authority (Peters v East Midlands Strategic Health Authority [2010] QB 48, Dyson LJ at paras [33] – [36] and [53] – [56] and Harman (A child) v East Kent Hospitals NHS Foundation Trust [2015] PIQR Q4, Turner J at paras [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 reasonable care package be determined and that the actual cost of that be awarded to the pursuers, subject to the parties’ agreement as to liability (supra). The assertion by the defenders, as to the minimal costs of current care, is irrelevant. These costs are contributed to partly by the local authority, partly by the health authority, and partly by the pursuers (see Record at pp 25E – 26C and 33D – 34A). The assertion that such a state of affairs will continue is likewise irrelevant et separatim lacking in specification. There are no averments by the defenders as to how funding for future care (whether residential or domiciliary) would be provided, by whom and for how long, whether or not a PIT is set up. There are no supporting documents lodged by the defenders and no witnesses to be led relative to these matters.
[7] Further, no account is taken of section 2(4) of the Law Reform (Personal Injuries) Act 1948, which provides that:
“In an action for damages for personal injuries (including any such action arising out of a contract), there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under…the National Health Service (Scotland) Act 1978”.
[8] It is for the defenders to make it clear that the future funding (or any part of it) asserted to be available would not involve facilities available under the National Health Service (Scotland) Act 1978. No attempt is made to identify whether any element of the future costs of care would be payable by the defenders and whether such costs would be payable by virtue of the 1978 Act. It is unclear on what statutory basis the costs would be paid by the defenders.
[9] The averments in the second passage are irrelevant et separatim lacking in specification. The defenders do not offer to prove that the pursuers as financial guardians with legal responsibility for Simon would be acting unreasonably by failing to set up a PIT. The pursuers’ functions and duties as financial guardians are determined by the sheriff and do not include setting up a PIT. It is for the pursuers to decide what care and accommodation may be appropriate for Simon. The averment in respect of the recovery of costs related to the creation and maintenance of a PIT is irrelevant, as the pursuers do not seek any such costs.
[10] The third passage of averments is also irrelevant. The pursuers are entitled to recover half of the loss sustained. The loss sustained has yet to be quantified. Once it is quantified the defenders are liable for half of that loss. The quantification of that loss is not affected by the fact that the pursuers will only recover half of it. The agreement reached in the present case was in respect of contributory negligence. The terms of the Joint Minute make it clear that the pursuers are entitled to fifty per cent of the loss, injury and damage suffered as a result of Simon’s accident. Damages are to be reduced having regard only to the claimant’s share in the responsibility for the damage (Sowden v Lodge [2005] 1 WLR 2129, Pill LJ at paras [74] – [86] and Longmore LJ at para [100]; Law Reform (Contributory Negligence) Act 1945 ( the “1945 Act”), section 1).
[11] Accordingly, all the specified averments should be excluded from probation.
Submissions for the defenders
[12] The defenders invited me to repel the pursuers’ challenge to the relevancy and specification and to allow proof before answer on all the averments in the “Working Print” of the Closed Record (supra).
[13] By way of preliminary observation, it was submitted, first, that the cases cited by the pursuers were not binding, being decisions of the English courts, and that the propositions advanced by the pursuers were all untested under Scots law. In the assessment of damages, Scots law tended to shy away from the more rigid rules preferred by English law (Duke of Portland v Wood’s Trustees 1926 SC 640; Haberstich v McCormick & Nicholson 1975 SC 1). Secondly, the object of any award of damages is to restore the pursuer, so far as is possible by payment of money, to the position that obtained prior to the injury (Livingstone v Rawyards Coal Co (1880) 7 R (HL) 1). That being so, it would be unprincipled to award damages in compensation of losses, which have not been, and will not be, incurred. Thirdly, the touchstone in any award of damages is the concept of reasonableness. As part of that concept, an injured party must act reasonably so as to mitigate his loss. Failure to do so may result in damages being refused or limited (Darbishire v Warran [1963] 1 WLR...
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