Personal injury news July 2020

The introduction of the Limitation (Childhood Abuse) (Scotland) Act 2017 allowed adults who had suffered abuse as children, and whose claims would otherwise be time barred, to seek damages. One of the first of these claims to go to proof was T v The English Province of the Congregation of Christian Brothers 2020 SLT (Sh Ct) 108; [2020] SC EDIN 13. T (now in his early 50s) sought damages under a number of heads for sexual and physical abuse inflicted on him as a teenager by three employees at a residential school run by the defenders. 

T began suffering from post-traumatic stress disorder shortly after leaving the school and, although fluctuating in severity, the condition persisted to the present day. The defenders challenged the evidence of the psychiatrist he led, but presented no evidence to contradict this and Sheriff McGowan accepted her opinion. He awarded solatium at £120,000, £80,000 to the past. Interest was awarded at 2% for the period of the abuse and 4% thereafter. As the abuse happened several decades ago, the interest due is substantial. The defenders had suggested a value for solatium of £70,000. 

The calculation of loss of earnings was complicated by the fact that T had suffered significant deprivation as a child while in the care of his mother, and had been in and out of foster care. As a result, his education had been significantly disrupted. He left school with no formal qualifications and, even if he had not suffered the abuse, he would have experienced difficulty securing work. The court had to differentiate between the effects of T's childhood and the consequences of the abuse on his employment prospects and progression. 

T's employment history was dealt with in stages. His personality was affected by the PTSD and the sheriff concluded that this was likely to have had an impact on the pursuer’s promotion opportunities and delayed his advancement. The sheriff noted that this was effectively a lack of earning capacity, rather than a claim for past loss of earnings, and had to determine how to reflect that in an award of damages. Ultimately, he awarded a lump sum equivalent to a year’s net earnings in the type of managerial post currently held by T. T was also awarded one year’s salary for disadvantage on the labour market.

This was the focus of the English decision in Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB). Walsh, a delivery driver employed by the defendants, suffered head injuries after falling from the back of his lorry while making a delivery. Having lowered the lorry’s tail lift, he stepped backwards, or lost his footing, and fell approximately one metre to the ground. 

The case was based on common law, as informed by a number of regulations, including regs 4 and 6 of the Work at Height Regulations 2005. In particular, the claimant argued that measures should have been in place to ensure that the tail lift was always raised when a worker was in the back of the lorry. 

At first instance, the county court judge dismissed the claim on the basis that it would not have been reasonably practicable to raise the tail lift when the back of the lorry was occupied. He concluded that such a measure would not have been proportionate to the degree of risk. 

The appeal was successful. Of particular interest is the court’s criticism of the judge’s application of reg 6(3) and (5) of the 2005 Regulations, which relates to elimination or reduction of risk of injury from falls from height so far as is “reasonably practicable”. It was held that the judge had misdirected himself and the test of reasonable practicability was much more than simply a balancing exercise. The starting point was to consider whether the measure in question was practicable. If it was, the question of reasonableness then arose, and it was for the defendants to show that the cost and difficulty of the measure so substantially outweighed the risk involved as not to be reasonably practicable. 

Contributory negligence was assessed at 50% as the claimant had lowered the tail lift, so was aware of its position and that there was therefore a drop from the back of the vehicle.

There are limited circumstances in which a pursuer can rely successfully on the operation of the maxim res ipsa loquitur, but the pursuer in Birch v George McPhie & Son Ltd 2020 SLT (Sh Ct) 93; [2020] SC EDIN 17 was able to do so. 

While employed by the defenders, the pursuer had used a sink in one of their workshops. Hot water reached the sink through a water heater fixed to the wall and cold water came through a separate tap. The pursuer turned on the hot tap and a burst of excessively hot water scalded his hand. He argued that the defenders had breached their common law obligations to take reasonable care for employees’ safety.

His esto position involved the maxim res ipsa, on the basis that an inference of negligence arose from the sudden flow of excessively hot water from the tap. 

The fundamental problem with the pursuer’s primary case was the lack of reasonable foreseeability. The precautions which he argued the defenders ought to have taken depended on establishing that they knew, or ought to have known, that the water heater was capable of delivering water at a sufficiently high temperature to cause a scald injury. There was no evidence to establish why this had happened on the day of the accident. The water heater was tested annually and the temperature had always been found to be within a safe range. A consultant forensic engineer could not explain why the water temperature at the time of the accident had been so high, and none of the tests he had undertaken had produced water of such a high temperature. 

As no explanation had been provided for the sudden burst of excessively hot water, an essential requirement for the operation of res ipsa had been satisfied. The pursuer did not know, and could not reasonably be expected to know, the cause of the event leading to the accident. This gave rise to an inference of negligence, which the defenders had to rebut by establishing that the accident was not caused by a breach of their duty of care. 

The water heater was designed to deliver hot water without mixing it with cold water, and the sheriff concluded on that basis that, in the exercise of reasonable care, it was incumbent on the defenders to undertake a risk assessment to identify the measures necessary to avoid a scalding type injury.

There was no suggestion that the water heater had ever been checked internally and, in the absence of any risk assessment, no evidence that the annual testing process was sufficient to address the risk of an employee being scalded. It was for the defenders to undertake that assessment, which they had failed to do, and they had not rebutted the inference of negligence that arose from the circumstances of the accident. 

The pursuer in Lowe v Cairnstar Ltd [2020] SC EDIN 16; [2020] SC EDIN 16 was successful in her claim for damages against the owners and occupiers of a nightclub where the pursuer had slipped and fallen on the floor of the toilets, injuring her ankle. She asserted that the floor had been slippery due to the presence of water or some other liquid. The defenders did not accept that the floor had been wet. A risk assessment of the toilet area had been carried out and the hazard of “slipping on tiles and other flooring” if they became wet had been identified. The defenders asserted that, to address this, they had set up a system of inspections at 30 minute intervals and any spills were cleaned up. 

A health and safety consultant gave evidence for the pursuer that the toilet floor presented a high slip risk when wet. Given the floor’s location, it was not sufficiently slip resistant to provide a safe floor in that environment. 

Sheriff Braid concluded that the floor had been wet at the time of the accident and had been slippery because of the presence of liquid. This presented a hazard. He accepted the expert evidence about the risk presented by the tiles when wet and held on that basis, and in light of the location of the floor, that no system of inspections could have discharged the defenders' duty of reasonable care. It would have been reasonably practicable for the defenders to have installed flooring that met the recommended slip resistance and their failure to do so breached their duty of care, both at common law and under the Occupiers’ Liability (Scotland) Act 1960. 

The pursuer had been drinking before the accident and the defenders alleged she was “intoxicated”. Sheriff Braid noted that this was a subjective term and concluded that the pursuer had not failed to take reasonable care for her own safety based on the amount of alcohol she had consumed. However, if the pursuer had been exercising reasonable care, she ought to have seen the liquid on the floor, and a deduction of 25% was appropriate for contributory negligence. 

There have been few decisions of late in which the court has determined the level of damages for loss of society under s 4(3)(b) of the Damages (Scotland) Act 2011, so McCulloch v Forth Valley Health Boards [2020] CSOH 40 is worthy of note. 

In this case, the widow and family of a man who died after suffering a cardiac arrest following his discharge from hospital sought damages from the defenders, alleging negligence on the part of one of their consultant cardiologists. Although negligence was proved, no causal link was established between the consultant’s negligence and the death and, on that basis, the claim failed. 

The level of damages to be awarded in the event of success had been agreed in relation to the majority of the claims (the amounts are noted at p 49 of the opinion), but the level of damages for loss of society for the deceased’s two children was left to the court to determine. The deceased’s daughter was aged seven at the time of his death and 15 at date of proof. His son was 18 months at the date of death and nine years at proof. Lord Tyre noted that, when considering the level of awards, regard should be had to jury awards in comparable cases, as well as to past judicial awards (per Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486). The defenders argued that £60,000 would have been appropriate for each child, but as damages had already been agreed at £70,000 for the deceased’s stepchild, that should be the level of the damages for his two children. Lord Tyre noted that the closest parallel was Anderson v Brig Brae Garage Ltd (25 June 2015, unreported) in which a jury awarded £80,000 to a child who had been six weeks old at the date of her father's death and three at the date of trial. He concluded that the same level would be appropriate for both children in this case.