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Paterson v Paterson & Ors [2012] CSOH 183 - 30th November 2012


Pateson, the pursuer, sustained a severe injury to his right ankle when he fell from a ladder at work. At the time of injury and during the proceedings he was employed by Tilly Confectionery, a company founded by his parents. He claimed against the company and both his parents for negligence and breach of statutory duty. Liability was admitted and it was agreed that Paterson was 25 per cent to blame for the accident. The dispute centred on the parties' competing valuations of damages.

Case put out by order to make final calculations regarding interest and deduction in respect of contributory negligence. Held; i) An award of £35,000 for solatium properly reflected the profound effect that the injury had had on the claimant's life, taking into account all the circumstances, which included that he continued to live under the shadow of further surgical intervention, with no guarantee as to the outcome, he would not regain full function of his ankle, he was at material risk of developing arthritis and the injury had had a significant psychological effect; ii) In deciding whether to make a Smith v Manchester award, three following questions were asked: first, was there a substantial or real risk that the claimant will lose his job; secondly, when is the risk likely to materialise, and; thirdly, what would be the claimant's chances of obtaining a job? Although there was more than a speculative risk that the pursuer would not remain working with Tilly for the rest of his career, that risk was at the lower end of the range. Any risk was unlikely to occur for a significant period. Although a prospective employer may be deterred from taking on the pursuer due to his physical limitations, in the context of his aptitude for business, a premium may be placed on his experience and contacts. Taking all those contingencies into account, the loss of employability award was assessed at £60,000, based upon 18 months of national earnings using a multiplicant of £40,000; iii) The pursuer's girlfriend, who spent most nights and weekends with him, was found a 'relative' within the terms of s. 13(1)(b), Administration of Justice (Scotland) Act 1982. At the material time she lived with the pursuer and the quality of the relationship was characterised as being akin to a marriage. On a 'broad brush approach', past and future services were valued at £5,000. As regarded a s. 9 claim, £3,000 was awarded for past and future loss; iv) Future costs for medical treatment and travel expenses in relation to that medical treatment was found at £2,700.