18 May 2015

In the case of Davidson v North Lanarkshire Council, the Pursuer drove a JCB into a shed, hit a door lintel and building rubble came crashing down in front of him. The Pursuer suffered from an adjustment disorder as a result for approximately 6 weeks and made a full recovery from his residual symptoms after 5 months. There were no physical injuries.

At first instance, the Pursuer was awarded a figure of £3,500 by way of solatium.

The decision was appealed by the Defenders on the basis that the award for solatium was excessive; that the Sheriff had erred in law in taking into account residual psychological difficulties experienced by the Pursuer after the adjustment disorder had resolved; and that the Sheriff erred in allowing oral evidence from the Pursuer and his wife to be heard when the psychiatric report had been agreed by way of joint minute.

The Defender relied primarily on Page v Smith [1996] 1 AC 155 to argue that the award of solatium should not encompass residual psychological difficulties experienced by the Pursuer after he no longer fulfilled the criteria for an adjustment disorder. Lord Boyd of Berwick stated in Page that “a defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for the nervous shock unless the shock results in some recognised psychiatric illness…” .

It was held that the Sheriff was entitled to take into account residual difficulties following the Pursuer’s recovery from the adjustment disorder. The residual difficulties had their origin in a recognised psychiatric illness, namely the adjustment disorder. The Sheriff Principal stated that he felt the award for solatium was ‘generous’, but did not interfere with what was at first instance a discretionary decision on the part of the Sheriff in light of the evidence which was placed before her.

The Sheriff Principal also held that the Sheriff was entitled to hear evidence from the Pursuer and his wife as the report was not entirely conclusive and their evidence clarified certain matters.

The decision in this case is another useful demonstration of the limitations of appellate court interference. The appeal courts will be reluctant to interfere with decisions which are highly fact sensitive and involve an exercise of discretion by the Sheriff or Judge who has had the benefit of hearing the evidence and submissions first hand.

The Sheriff Principal wasn’t persuaded by the narrow concept of solatium advanced by the Defenders. He was clear that the residual psychological symptoms and the disruption to the Pursuer’s life ought to be taken into account as they had their origin in a recognised psychiatric injury.

The decision also serves as a reminder that agreeing medical evidence does not necessarily mean that the Pursuer and his witnesses will not be able to give evidence at Proof to supplement this. As held by the Sheriff Principal, this remains a possibility where the medical report is not conclusive and some aspects require clarification. Difficulties are likely to arise, however, if the witnesses start to stray into areas not covered by the agreed medical evidence, or they give evidence which contradicts the medical expert’s findings.   It appears that this was an effective strategy by the Pursuer at first instance.  The details of the impact upon his family life were heard by the Sheriff, which provided extra emotional weight to the claim. This contributed to an award for solatium which was in the view of the Sheriff Principal, generous.