Kerry Donnelly V. Fas Products Limited
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Date | 19 March 2004 |
| Docket Number | A3353/00 |
| Court | Court of Session |
| Published date | 19 March 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A3353/00
| OPINION OF LORD BRODIE in the cause KERRY DONNELLY Pursuer; against FAS PRODUCTS LIMITED Defenders: ________________ |
Pursuer: Allardice; Thompsons,
Defenders: MacSporran; Bishops
19 March 2004
Introduction
[1] The pursuer is Kerry Donnelly. She lives in Holytown, by Motherwell. The pursuer was born on 1 May 1979. She sues her former employers for damages in reparation for a severe crushing and burning injury to her left (dominant) hand sustained on 5 June 2000 when she was working as a production assistant in the defenders' factory. Liability has been admitted. There is no issue as to contributory negligence. The proof which I heard was accordingly concerned only with the quantification of the pursuer's claim for damages.
[2]The pursuer suffered her injury while using a machine which moulded pie shells. Among the moving parts of the machine were two components which were guarded by a removable interlocked guard. Their purpose was to mould and then trim lumps of dough, thereby forming pie shells. The pursuer removed the guard in order to clean off a piece of dough which had become stuck. She expected that removal of the guard would shut down the moving parts of the machine. On this occasion it did not. The pursuer's left hand was crushed under a descending component. The pursuer's hand remained trapped for some ten minutes before it was freed. The part of the machinery in which the pursuer's hand was trapped was at high temperature. The pursuer's hand was severely burned. No other part of her body was injured in the accident. The pursuer suffered extreme pain.
[3]I heard the evidence of the pursuer; Mr James Campbell Semple, a retired consultant orthopaedic and hand surgeon; Dr Rao, the pursuer's general medical practitioner; Dr Jennifer Elizabeth Caldwell, an occupational therapist; John Ellis, occupational therapist; Brian Keith, an employment consultant and careers adviser; Mrs Margaret Irwin, the pursuer's mother; and Mr Mark Broomfield, a lecturer in prosthetics and orthotics. The evidence of Sir Michael Bond, formerly Professor of Psychiatry at the University of Glasgow, had been taken on commission. The report of the commission was lodged as number 19 of process.
[4]After hearing the evidence, I allowed the pursuer to amend the Closed Record by inserting the words "support and comfort" after "zips" where that word occurs at page 15B.
[5]Parties were agreed that the appropriate award for solatium is £57,500. I was advised that there has been an interim payment of damages in the sum of £50,000, made on 5 December 2002. I was invited to make my assessment of the various heads of damages and, having done so, have the case brought out by order, in order that parties might advise me as to the final computation of damages, having regard to the interim payment, interest and the requirement to deduct benefits. I shall do so.
The medical treatment received by the pursuer and the physical consequences of her injury
[6]The agreement between the parties as to the appropriate amount to be awarded by way of solatium meant that less evidence was led as to the exact nature of the pursuer's injury and the medical treatment that she received than otherwise might have been the case. She was taken to the Glasgow Royal Infirmary by a fellow employee. She was treated with morphine and diamorphine. She underwent a series of operations, the last of these being in August 2002. Her fingers on the left hand, other than the stump of her index finger, were removed. She retains her thumb (described by Mr Semple as normal in all respects). A graft of muscle tissue was taken from her right arm and a skin graft was taken from her right thigh for use in the re-construction of the pursuer's hand. She described the result of these operations as having left her with a hand which is "unsightly", "abnormal", "a mess". The appearance of the hand in August 2000 is illustrated in a number of photographs which are lodged as number 6/8 of process. Number 6/8/12 of process illustrates that part of the inside of the pursuer's right arm from which muscle tissue was taken and 6/8/15 illustrates that part of her right thigh from which a skin graft was taken. More recent photographs of the pursuer's left hand are appended to Mr Semple's report dated 23 July 2003, 6/14 of process. The pursuer feels embarrassed about the appearance of her hand and her right arm. She regards her hand and arm as unsightly. She keeps them covered when she can. The pursuer is not similarly concerned about the appearance of her leg. The pursuer is able to make a pinch grip between her thumb and what remains of her index finger, as is illustrated in one of the photographs appended to 6/14 of process. This allows her, for example, to pick up and carry her handbag and to hold a pile of photographs, but not to pick up a kettle full of water. Sometimes she drops things. She is able to do up "some" buttons but she cannot fasten or unfasten her bra. She uses her right hand if she wishes to pull a zip. The pursuer is conscious of cold. She is not now in pain but she did suffer pain for more than six months after the accident. The current condition of the pursuer's hand is permanent.
[7]Initially, the pursuer's mother, Margaret Irwin, had to "do everything" for her. She helped care for the pursuer in hospital. When the pursuer was discharged from hospital her hand was heavily bandaged. She had no useful function in the hand and required a lot of assistance from her mother. Despite improvement in her condition, the pursuer has continued to receive help from, and spend most of her time with, her mother. She accepted in cross-examination that her mother has been over-protective of her. When Mrs Irwin came to give evidence she said that she had been told that she was over-protective of the pursuer but explained that she was always concerned that the pursuer might hurt herself. In his report on his interview and examination of the pursuer carried out on 5 July 2002, number 6/10 of process Mr Semple records the pursuer's account to him of her mother always standing behind her in the kitchen in case she injures either hand on cooking equipment and he offers the view that it would be much better if the pursuer were allowed and indeed encouraged to make a life of her own. When it was put to Professor Sir Michael Bond, in the course of cross-examination, that the pursuer's mother was over-protective, he accepted that she might be regarded as over-protective but that her daughter was showing very dependent childlike behaviour which elicits in a mother protective behaviour in response. He thought that this was to be regarded as a normal phase in the process of getting through this problem.
[8]The pursuer has been and remains clearly very significantly disabled by reason of having lost the greater part of the index finger and all of the remaining fingers of her dominant left hand. When asked, during examination in chief, whether she was now able to look after herself, the pursuer said that there were some things that she was still not able to do. She gave the instance of food preparation. This was the only example she was able to give of a task requiring two hands with which she might experience difficulty. She explained, at another point in her evidence, that she sometimes cooks but that she finds that she cannot put things in the oven. She has difficulty with shopping when it involves purchasing a number of items. She said that she cannot put groceries into a bag. She drops items that she wishes to purchase. It is difficult for her to count money. The pursuer will avoid shopping for clothes when the shops are busy.
[9]The pursuer is able to use a washing machine but said that she could not hand wash. The pursuer said she could hoover. Her mother, on the other hand, gave hoovering as an example of something which the pursuer no longer did.
[10]The pursuer and her mother live together. No one else lives in the house. With the exception of the holiday in Greece which is referred to below the pursuer and her mother have not been separated since the accident. The pursuer said that as she has got better she has become able to go out alone but she is happier when someone is with her. If unaccompanied she may "get into a panic". She therefore generally goes out with her mother. About six months after the accident she had felt able to go out to the pub with her sister. The pursuer confirmed that she got benefit from the emotional support of her mother.
[11]When Mrs Irwin was asked, subject to an objection by Mr MacSporran that there was no record for this line of evidence, whether the pursuer would be able to set up home on her own, Mrs Irwin said that she did not think that the pursuer would be able to cope as most tasks needed two hands and the pursuer had only a pinch grip in her left hand. The report by Dr Caldwell, number 6/20 of process, which was spoken to by Dr Caldwell in evidence, expresses the view, at page 18, that should the pursuer get married and therefore move out of her mother's house, she would require additional help with housework and later, should she have a family, she would require additional help such as a nanny or children's help. The pursuer was not asked about any of this beyond saying that "hopefully" she could see a future in which she was married with children, although she was not thinking of this at present. I shall return to what is to be made of Dr Caldwell's evidence later in this opinion.
[12]The pursuer said in evidence that she was scared of trains. She could use buses but wished to have someone with her because she had difficulty in holding on in order to maintain her balance when standing. It was helpful to have someone else to pay. She finds it easier to use a taxi than a bus. This avoids the problems associated with getting in and out of a bus and paying the fare. Prior to the accident the...
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