Establishing the Two‐Injury Valuation Approach and Overlap Discount in Scottish Personal Injury Awards

Introduction

This commentary examines the Court of Session’s decision in Tracy McFadyean v Renfrewshire Council [2025] CSOH 44, delivered by Lord Braid on 20 May 2025. The pursuer, an orthopaedic staff nurse, sustained a serious head injury when a chisel fell 30 feet onto her skull while she was in her brother’s garden. Liability was admitted; the proof proceeded on quantum alone. Key issues included valuation of the pursuer’s injuries under the Judicial College Guidelines, the correct categorisation of distinct injuries (head/brain injury, tinnitus, PTSD), the application of a “Sadler” overlap discount, loss of employability, and awards for domestic services under sections 8 and 9 of the Administration of Justice Act 1982. The parties were Thompsons Scotland LLP for the pursuer and Ledingham Chalmers LLP for the defender.

Summary of the Judgment

Lord Braid adopted a “two‐injury” approach, treating the pursuer’s head/brain injury (including its audiological sequelae) and her post-traumatic stress disorder (PTSD) as two distinct claims for solatium under the Judicial College Guidelines. He valued the combined head/brain injury and tinnitus at £45,000 (net of a 10% Scotland adjustment), and PTSD at £25,000, before applying a modest “Sadler” discount for overlap, yielding a solatium award of £60,000. Interest to date was calculated at £8,693, making a total solatium figure of £68,693. He dismissed the employability claim for lack of real risk of future unemployment, and awarded £20,000 (inclusive of past interest) for domestic services under sections 8 and 9 AJA 1982. The overall award was £88,693 in favour of the pursuer.

Analysis

Precedents Cited

• Sadler v Filipiak [2011] EWCA Civ 1728: Established the principle of adjusting aggregate awards to avoid double counting when multiple heads overlap (“Sadler discount”).
• Rabot v Hassam [2025] AC 534: Confirmed the continuing relevance of the Sadler principle in the Supreme Court.
• Smith v Manchester Corp [1974] 6 WL UK 31: Historically recognised case on “loss of future earnings capacity” where the injured party remained in the same employment but at a disadvantage.
• JW v Salisbury NHS Foundation Trust [2024] WL 05442780 and Palmer v Mantas and Anr [2022] WL 22878922: Illustrative case values for tinnitus and brain injury used as comparative benchmarks.

Legal Reasoning

1. Number of Injury Heads
The pursuer argued for two heads—head/brain injury (including tinnitus) and PTSD—citing the lack of a standalone guideline for skull fractures. The defender advocated three separate injuries to capture tinnitus under Chapter 5(B). Lord Braid favoured the two-injury approach on practical grounds: clear guideline availability under Chapter 3(A) for brain injury, the connection between brain trauma and tinnitus, and procedural simplicity in applying overlap discounts.

2. Valuation under the Judicial College Guidelines
• Head/Brain Injury & Tinnitus: Placed at the top of the lower/ bottom of the higher brackets in Chapter 3(A) (“moderate” brain injury), range £52,550–£110,720, adjusted by a 10% reduction for Scotland. Valued at £45,000.
• PTSD: Classified as “moderate” (Chapter 4(B)), range £9,980–£28,250, again with a 10% Scotland adjustment. Valued at £25,000.

3. Sadler Overlap Discount
Having quantified each head, Lord Braid considered overlap. While tinnitus perpetuates PTSD symptoms, the primary effects differ—tinnitus causes sleep disturbance and irritability; PTSD arises from triggers and intrusive recollections. A modest reduction was applied, resulting in a combined solatium of £60,000.

4. Mitigation Argument
The defender suggested discounting PTSD for failure to pay privately for CBT. The court held the pursuer acted reasonably: she sought NHS support, attended counselling, used masking devices and sleep apps, and is on an NHS CBT waiting list. No mitigation discount was applied beyond the guideline assumption that CBT will be undertaken.

5. Loss of Employability
The defender successfully contended that no real risk of unemployment existed. The pursuer’s position with the NHS was secure; thus, there was no disadvantage on the labour market as required by Smith v Manchester. Accordingly, no award was made.

6. Services Claims (Sections 8 & 9 AJA 1982)
Section 8 compensates the pursuer for necessary domestic services rendered by a relative; section 9 compensates the relative for loss of services previously provided by the pursuer. The court accepted both heads could apply but found the evidence vague and allowed a combined award of £20,000, reflecting past and modest future assistance requirements.

Impact

The decision clarifies several points in Scottish personal injury law:

• The practicality of grouping audiological sequelae (tinnitus) with brain/head injury under Chapter 3(A) when supported by expert evidence.
• Affirmation of the 10% regional reduction when applying English Judicial College Guidelines in Scotland.
• Reinforcement of the Sadler principle to prevent double counting across multiple heads of solatium.
• Strict approach to loss of employability, requiring real and not hypothetical disadvantage.
• Recognition that awards under sections 8 and 9 AJA 1982 can coexist but must be grounded in detailed factual evidence.

Complex Concepts Simplified

• Judicial College Guidelines: A schedule of recommended award ranges for pain, suffering, and loss of amenity, used by courts as a starting point.
• Solatium: Compensation for non-pecuniary loss—pain, suffering, and loss of amenity.
• Sadler Discount: An adjustment to aggregate awards to remove overlap when multiple injury heads contribute to the same overall disadvantage.
• Loss of Employability: Compensation for a diminished ability to secure comparable employment in the future.
• Section 8 & 9 AJA 1982: Statutory provisions compensating for domestic assistance provided by relatives (s. 8) and for loss of services formerly provided by the injured party (s. 9).

Conclusion

The Court of Session in McFadyean v Renfrewshire Council has established a clear methodology for valuing co-existent head/brain injury (with tinnitus) and psychological injury under the Judicial College Guidelines, confirmed the applicability of a 10% regional discount in Scotland, and demonstrated the careful application of the Sadler principle to avoid double counting. It has also drawn firm lines around loss of employability claims and refined awards for domestic services under the AJA 1982. Practitioners can rely on this authority when advising on quantum in Scottish personal injury cases involving multiple, overlapping injury claims.