Tracy McFadyean against Renfrewshire Council (Court of Session)

Factual and Procedural Background

On 6 October 2021, the Plaintiff, then aged 48 and employed as an orthopaedic staff nurse, was injured by a chisel that fell approximately 30 feet from the roof of her brother's house in The City. The Defendant's employees, who were working on the roof, accepted liability for the accident. The Plaintiff sought damages for her injuries. The case proceeded to a proof on quantum to determine the amount of damages. Evidence was given by the Plaintiff, her husband, and a consultant ENT surgeon. A clinical psychologist's report was admitted as evidence by joint agreement. The Defendant did not challenge the credibility of the Plaintiff's witnesses nor led any evidence.

The Plaintiff suffered a skull fracture, ongoing tinnitus, persistent headaches, and psychological symptoms consistent with PTSD. She experienced significant disruption to her daily life, including difficulty sleeping, irritability, and reduced ability to perform household tasks. She returned to work on a phased basis after 12 weeks but later reduced her hours, resulting in a pay reduction. The Plaintiff sought various heads of damages including solatium, loss of employability, and claims for necessary and personal services under the Administration of Justice Act 1982.

Legal Issues Presented

1. How should the Plaintiff’s injuries be categorised for the purpose of applying the Judicial College Guidelines—whether as two injuries (head/brain injury and PTSD) or three (head/brain injury, tinnitus, and PTSD)?
2. What is the appropriate quantum of damages for solatium considering the combined effects of the Plaintiff’s injuries?
3. Whether the Plaintiff has established a claim for loss of employability.
4. What is the appropriate award for necessary and personal services under sections 8 and 9 of the Administration of Justice Act 1982?
5. Whether any discount is appropriate for overlap between heads of damages or for failure to mitigate losses.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff argued for damages under four heads: solatium, loss of employability, necessary services (section 8), and personal services (section 9) claims.
• For solatium, the Plaintiff relied on the Judicial College Guidelines chapters for brain/head injury and PTSD, preferring to treat the skull injury as a brain injury for valuation purposes.
• The Plaintiff sought a solatium figure combining the head injury and PTSD claims, estimating approximately £82,550 excluding interest.
• Loss of employability was claimed by analogy with a previous case where the plaintiff continued working but with difficulty, seeking about 1.25 times the Plaintiff’s salary plus loss due to reduced hours.
• Claims for necessary and personal services were quantified together at about £30,000 to date, with future claims calculated by applying a multiplier to an annual figure.

Defendant's Arguments

• The Defendant accepted the Judicial College Guidelines as a starting point but advocated treating the Plaintiff’s injuries as three distinct injuries: tinnitus, skull injury, and PTSD.
• The Defendant proposed applying the tinnitus guidelines separately, valuing the skull injury as a minor head injury, and placing the PTSD claim at the lower end of the scale due to expected recovery with therapy.
• The Defendant submitted that the aggregate of individual claims should be discounted to avoid double counting, referencing the Sadler case.
• The Defendant argued the loss of employability claim was unfounded since the Plaintiff’s job was secure and there was no real risk of her entering the labour market.
• The services claims were deemed excessive and insufficiently supported by evidence, suggesting only a modest award for the period before the Plaintiff’s return to work.
• The Defendant contended the Plaintiff failed to mitigate losses by not exploring private psychological therapy options.
• Two cases were cited to illustrate that the Plaintiff’s claimed solatium was excessive: JW v Salisbury NHS Foundation Trust and Palmer v Mantas and Anr.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered whether the Plaintiff’s injuries should be treated as two (head/brain injury and PTSD) or three (head/brain injury, tinnitus, and PTSD) for damages valuation. The court preferred the two-injury approach, noting that the Plaintiff’s tinnitus likely results from brain injury and that Chapter 3(A) of the Judicial College Guidelines adequately captures the injury’s effects. This approach also simplifies discounting for overlap.

The court applied the Judicial College Guidelines to value the head/brain injury element at £45,000 after adjusting for the difference between English and Scottish awards. For PTSD, the court placed the Plaintiff in the "moderate" category, valuing that element at £25,000.

Regarding the potential overlap between injuries, the court applied the Sadler principle, recognizing some but not significant overlap, and thus reduced the combined solatium to £60,000. Interest was calculated at 4% from the date of the accident, adding £8,693.

The court rejected the loss of employability claim, finding no evidence that the Plaintiff faces labour market disadvantage or job insecurity. The court also dismissed the Plaintiff’s attempt to claim loss of earnings due to reduced hours as a disguised loss of employability claim, noting lack of pleading support.

On the claims for necessary and personal services under the Administration of Justice Act 1982, the court found the evidence vague and insufficient to justify the amounts sought. However, it accepted that some award was appropriate for past and future services, allowing £10,000 for each claim, totaling £20,000 inclusive of interest.

The court considered the Defendant’s argument regarding failure to mitigate by not privately funding CBT but found the Plaintiff’s conduct reasonable given her ongoing efforts to obtain treatment via the NHS and other measures.

The court noted that the case law cited was of limited assistance and that the Judicial College Guidelines were the more reliable tool for valuation.

Holding and Implications

The court awarded the Plaintiff a total of £88,693, comprising £68,693 in solatium damages inclusive of interest and £20,000 for necessary and personal services claims. The court reserved all questions of expenses.

The decision directly compensates the Plaintiff for the injuries and losses sustained and does not establish new precedent beyond the application of established principles and guidelines. It clarifies the approach to valuing combined head injury and tinnitus claims under the Judicial College Guidelines and confirms the limited circumstances for loss of employability awards when employment is secure.