Jean Francois Guilbert And Others V. Allianz Insurance Plc
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2009] CSOH 10 |
| Court | Court of Session |
| Docket Number | PD1313/07 |
| Published date | 27 January 2009 |
| Date | 27 January 2009 |
| Year | 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 10 | |
| PD1313/07 | OPINION OF LORD KINCLAVEN in causa JEAN FRANCOIS GUILBERT and OTHERS Pursuers; against ALLIANZ INSURANCE PLC Defenders: ________________ |
Pursuers: Hofford, Q.C.; Bonar Mackenzie, W.S.
Defenders: J.G. Thomson, Advocate; Simpson & Marwick, W.S.
27 January 2009
Introduction
[1] This is a reparation action arising out of a fatal road traffic accident which occurred on the A9 on 7 July 2004.
[2] The first pursuer, Jean Francois Guilbert, is the husband of the deceased - the late Marie Paul Odile Guilbert.
[3] Liability was admitted and the case came before me for proof on quantum of damages.
[4] Mr Hofford appeared for the pursuers.
[5] Mr Thomson appeared for the defenders.
[6] I was informed that the claims by the second, third and fourth pursuers had been settled and that a measure of agreement had been reached in relation to the claim by the first pursuer.
[7] The issues which required to be resolved after for proof related to the first pursuer's claim for loss of support.
[8] In particular I was asked to decide the appropriate deductions to be made from certain agreed figures to reflect the cost of the deceased's personal needs and maintenance.
[9] The only witness to give evidence was the first pursuer - Jean Francois Guilbert.
[10] Very helpfully counsel produced a detailed Joint Minute of Admissions (No. 24 of Process) which is set out in full below.
[11] In overview, the main difference in principle between the submissions made by the parties related to the significance to be attached to what was described as a "conventional rule of thumb" sometimes used in such cases.
[12] Mr Hofford, for the first pursuer, submitted that there was a rule of thumb which fell to be applied and that it resulted in a deduction of 25% in relation to past and future loss of support.
[13] Mr Thomson, for the defenders, accepted that there was a conventional rule of thumb but contended that it was no more than that - a rule of thumb. He submitted that the court always required to look at the evidence and the facts of the individual case and that, in the present case, it was appropriate to make a deduction of 33% in relation to past loss of support and 50% in relation to future loss of support.
[14] In the whole circumstances, and for the reasons outlined below, I consider that it would be fair and reasonable to make a deduction of 30% in relation to past loss of support and 35% in relation to future loss of support.
[15] I shall illustrate my decision in spreadsheet format below.
[16] I shall also put the case out By Order so that counsel have an opportunity to address me on the precise terms of the interlocutor to be pronounced.
[17] Meantime I shall reserve the question of expenses.
[18] I would outline my decision more fully as follows.
The Background and Pleadings
[19] The Record is No. 14 of Process.
[20] The first conclusion of the summons as amended seeks payment by the defenders jointly and severally to the first pursuer in terms of sections 1(3) and 1(4) of the Damages (Scotland) Act 1976 (as amended) of the sum of £750,000 plus interest.
[21] As appears more fully from the pleadings, the first pursuer sues as an individual and as the widower of the late Marie Paul Odile Guilbert ("the deceased") and in terms of sections 1(3) and 1(4) of the Damages (Scotland) Act 1976 (as amended). He was born on 25 October 1947 and resides in Paris, France. He was employed as a Telecommunications Consultant. The deceased was born on 4 February 1945 and died on 7 July 2004. There are three children of the marriage between the first pursuer and the deceased, namely, the second pursuer Cecilia Quennemet (born 2 December 1975), the third pursuer Evelaine Guilbert (born 19 January 1980) and the fourth pursuer Sylvane Guilbert (born 22 September 1981). All three daughters reside in Paris, France. The Second Pursuer is employed as a Technical Ground Engineer. The third pursuer is employed as a Marketing Consultant. The fourth pursuer is employed as a Water Management Engineer.
[22] On or about 7 July 2004, the fourth pursuer was driving a Renault motor car registration number 342 KLZ 75 along the A9 Inverness to Perth Road. The first pursuer was a rear seat passenger. The deceased was a front seat passenger. The second defender was driving a Vauxhall motor car registration number X67 UGE which collided with the front of the pursuers' vehicle. As a result of the accident, the deceased was killed instantly. The first and fourth named pursuers also suffered injuries.
[23] The first defenders are the motor vehicle insurers of the second defender in terms of section 143 of the Road Traffic Act 1988. In terms of Regulation 3 of the European Communities (Rights against Insurers) Regulations 2002 the first defenders are directly liable to the pursuers to the extent that they sustained loss, injury and damage as a result of the second defender's failures in duty.
[24] Liability was admitted for the purpose of the present action (Answers 4 and 11).
[25] The first pursuer's averments of loss in Article 5 relate solatium, past wage loss, services and outlays. Those heads of loss are not in issue.
[26] The first pursuer's averments in relation to loss of support are contained in Article 6 of Condescendence which is in the following terms:
"The first pursuer has suffered the loss of his wife, the deceased. He had a close and loving relationship with the deceased. He has lost the love, society and affection of the deceased. He has suffered and continues to suffer grief and sorrow at the deceased's death and the circumstances in which it occurred. He has suffered a loss of financial support. The deceased contributed significantly to the household budget. She earned more than the first pursuer. She was due to retire in early 2005 but for the accident. The first pursuer has suffered a loss of the deceased's pension rights. Vouching in respect of the first pursuer's earnings and the deceased earnings and pension rights will be produced. The first pursuer has suffered the loss of those personal services which the deceased would have rendered to him had she lived. The first pursuer has the following heads of claim: (1) damages as a widower under section 1(4) of the Damages (Scotland) Act 1976 (as amended) for the loss of the deceased (2) loss of financial support as widower and loss of personal services under section 1(3) of the Damages (Scotland) Act 1976 (as amended) and (3) funeral expenses. Quoad ultra the defenders averments in answer are denied."
[27] Answer 6 for the Defenders is in the following terms:
"Sections 1(4) and 1(3) of the Damages (Scotland) Act 1976 (as amended) are referred to for their terms beyond which no admission is made. Quoad ultra denied."
The evidence of the first pursuer - Jean Francois Guilbert
[28] In examination-in-chief Monsieur Guilbert explained that he was 60 years of age. He lived in Paris at the address stated in the pleadings. He had just retired from working as a telecommunications consultant in France. His wife was Marie Paul Odile Guilbert (the deceased) who was tragically killed on 7 July 2004. They had been married for 32 years. The deceased was 59 years old when she died. The first pursuer was aged 56 at that time.
[29] The three children of the marriage were Cecilia, Evelaine and Sylvane. They were aged 28, 24 and 23 (respectively) when their mother died. Sylvane, the youngest, was the last daughter to leave home - about 18 months prior to the proof.
[30] The first pursuer described the deceased as a very intelligent, simple-living, individual. There were no large expenditures. She was very generous. They had a lot of common tastes in art and sport. They played music together for elderly people in hospital and retirement homes. They were a very close family. They did a lot of activities together. He still had a close relationship with the children.
[31] The deceased worked in the data processing field as an "IT director". She was well paid. The first named pursuer's earnings depended on the period concerned. When he was employed by a large company, he was paid more. When he ran a start up company business as an independent consultant he accepted a lower salary for himself.
[32] The first pursuer and the deceased had a joint bank account that both salaries went into. The deceased did not spend much on herself. She was very frugal in terms of clothes and hair. She was not interested in appearances. Money went on the home, the car, insurances and joint activities such as travel and sport. The children were also supported until they were independent. Their studies and accommodation and travel were financed from the joint account - for example Sylvane was in Scotland for a year. The first pursuer goes on giving some money to the children - in a savings account that might help them acquire a flat. He had provided a personal guarantee and assisted in the purchase of a flat by way of a "personal deposit". They still have holidays. He used to rent a house by the seaside - and had done so in 2007.
[33] The evidence of the first pursuer given in cross examination can be summarised (and sequenced to provide a basic chronology) as follows:
1. Before the accident the deceased earned a lot more than the first pursuer.
2. The first pursuer's net earnings in 2003 were €21,974.53.
3. The deceased's earnings in 2003 were €65,467.92.
4. Prior to the accident they led a simple life with no large personal expenses. They lived within their income which went on the first pursuer, his wife and their youngest daughter Sylvane. He thought that before the accident about 20% of their income went on supporting Sylvane.
5. In the first year after his wife died the first pursuer had to be cautious. He had to decrease some expenditure. He was not receiving his own retirement income and in 2005 he sold a flat which he was renting.
6. But for the accident,...
To continue reading
Request your trial