Damages – Seán Crossan's Scots Law

Undignified exit

The dismissal of Sonia Khan

In August 2019, a story which was widely reported in the British media, caught my attention: the abrupt dismissal of Sonia Khan as a special adviser (or ‘Spad’) with the UK Government. Ms Khan had worked for two previous Chancellors of the Exchequer (the UK Finance Minister). She was summoned to a meeting with Dominic Cummings, the UK Prime Minister’s top political adviser and sacked. Ms Khan was ordered to surrender her security passes and escorted from Downing Street by an armed Police Officer. All in all, it was a very undignified and humiliating exit for Ms Khan. Needless to say, Mr Cummings did not follow any disciplinary procedure when he made the decision to give Ms Khan her marching orders.

This decision was far from wise and Ms Khan has an extremely strong case for unfair dismissal in terms of the Employment Rights Act 1996 (she has the necessary continuous service of more than 2 years required to bring such a claim and no warnings were issued to her).

This affair led to me think about humiliating dismissals by employers and whether the affected employee could claim damages for the manner of their sacking? In other words, can the sacked employee claim that their feelings were injured as a result of the way in which they s/he was dismissed?

Links to articles about Sonia Khan’s dismissal can be found below:

https://www.independent.co.uk/news/uk/politics/sajid-javid-dominic-cummings-fires-special-adviser-johnson-brexit-sonia-khan-a9085056.html

https://www.standard.co.uk/news/politics/no-10-must-pay-sajid-javids-fired-aide-tens-of-thousands-in-compensation-a4232216.html

Injury to feelings in discrimination claims

When discussing discrimination claims in terms of the Equality Act 2010 (primarily), I often stress the issue of injury to feelings as an element that will be included in the calculation of a final award by an Employment Tribunal.

In several Blogs (please see the end of this article for the relevant links), I have discussed the importance of the Vento Guidelines or Scale.

In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] EWCA Civ 1871 compensation limits of £15–25,000 were laid down in situations where injury to feelings was involved in cases involving sex and race discrimination. In Sturdy v Leeds Teaching Hospitals NHS Trust ET Case 1803960/2007 14th and 15th April 2009 the Employment Tribunal decided that, since Vento had been decided in 2003, a higher rate of inflation had to be considered hence the increased award made to a victim of age discrimination.

These awards for injury or hurt feelings have now become known as the Vento Guidelines and in Da’Bell v National Society for the Prevention of Cruelty to Children (2009) EAT/0227/09, the Employment Appeal Tribunal (sitting for England and Wales) brought them into line with inflation.

Since Da’Bell, the Vento guidelines are usually updated annually in line with inflation.

The current bands or scales (from 6 April 2020) are:

♦ £900 to £9,000 for the lower band

♦ £9,000 to £27,000 for the middle band

♦ £27,000 to £45,000 for the top band

What’s the situation with unfair dismissal claims?

In Dunnachie v Kingston upon Hull City Council [2004] EWCA Civ 84, the English Court of Appeal set the cat amongst the pigeons when it stated that a compensatory award for unfair dismissal could also include injury to an employee’s feelings. The Court of Appeal was clearly relying upon an obiter remark made by Lord Hoffman during the decision of the House of Lords in Johnson v Unisys [2001] UKHL 13.

As far back as the decision by the short lived National Industrial Relations Court (1971-1974) in Norton Tool Co Ltd v Tewson [1972] EW Misc 1, the position was quite clear: the compensatory award in unfair dismissal claims did not include injury to an employee’s feelings in connection with the manner of the dismissal suffered by him or her.

Lord Hoffman’s obiter statement and the decision by the Court of Appeal in Dunnachie appeared to place this principle in considerable jeopardy and opened the door to what could have been a potentially significant, new development in unfair dismissal case law. Clearly, it would be advantageous for the House of Lords to provide a definitive ruling on this matter.

Subsequently, Kingston upon Hull City Council appealed against the judgement of the Court of Appeal to the House of Lords.

On Thursday 15th July 2004, the House of Lords delivered its judgement in this case ([2004] UKHL 36). Their Lordships (Lord Hoffman amongst them – ironically) killed off any idea that an award for unfair dismissal could include injury to an employee’s feelings for the manner of the dismissal.

Compensation, therefore, in unfair dismissal claims will be concerned with the employee’s economic losses only.

Conclusion

The decision of the House of Lords in Dunnachie v Kingston upon Hull City Council [2004] UKHL 36 was and remains a clear restatement of the orthodox position as set down by Sir John Donaldson all those years ago in Norton Tool Co Ltd.

As Lord Steyn, one of the Law Lords, remarked in Dunnachie:

“On the other hand, the correctness of the Norton Tool decision was not an issue in Johnson v Unisys. It is true that there were references by both sides in the oral argument to Norton Tool. But the House heard no adversarial argument exploring the correctness or otherwise of that decision. In these circumstances a definitive overruling of a decision which had stood for nearly 30 years would have been a little surprising.”

In fact, Lord Hoffman’s observation (and it was nothing more than observation we are now assured) could in no way be interpreted as an attempt to overturn a long-standing and well-established legal principle. Lord Hoffman, in Johnson v Unisys [2001], was not “inviting the House to overrule a longstanding decision on a point of statutory construction that was not in issue and not explored in opposing arguments.” The statement by Lord Hoffman was clearly obiter dictum i.e. things said by the way which do not form part of the actual court’s judgement and that was the end of the matter.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2020/02/09/bad-hair-day/

https://seancrossansscotslaw.com/2019/04/23/exclusion/

https://seancrossansscotslaw.com/2019/04/10/everyday-experiences-of-racism/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

Copyright Seán J Crossan, 8 April 2020

Sick to the back teeth …

In the last few months, I’ve discussed two medical negligence cases involving the NHS in Scotland. Since last week, I now have a hat trick with the decision of Lady Wise (sitting in the Court of Session) in respect of Derek Hamilton v Lanarkshire Health Board [2020] CSOH 24.

The facts of the case are pretty straightforward:

In 2013, Mr Hamilton had been playing with his grandson when he swallowed his dental plate. Now, it may seem facetious of me to say this, but Mr Hamilton’s grievance was not directed at his grandson’s high jinks. The issue was with what happened next. He attended the local NHS hospital for treatment and he was informed that he would have to undergo surgery to have the plate removed.

Mr Hamilton duly underwent an operation where Martin Downey, an experienced surgeon, removed said plate via the patient’s oesophagus. Unfortunately, while doing so the surgeon’s actions caused a tear or a perforation in the oesophagus and Mr Hamilton’s condition worsened rapidly. Consequently, the patient spent a total of 45 days in hospital as a result of complications arising from the botched procedure.

Mr Hamilton alleged that Martin Downey, had breached his duty of care to him and that he had carried out a procedure which “all general surgeons know is a catastrophe to be avoided.”

In finding Martin Downey liable for negligence, Lady Wise bluntly observed that:

“Mr Downey departed from usual and normal practice … and acted in a manner that no ordinarily competent general surgeon with colorectal speciality exercising ordinary skill and care would have done.“

Her Ladyship went on to state that:

“I have found that, but for the taking of that easily avoidable risk, the patient’s oesophagus would have remained intact as it was the act of removing the plate that caused the perforation. The pursuer [Mr Hamilton] has therefore established both breach of duty and causation.”

Mr Hamilton will receive £195,000 (plus interest) in compensation from Lanarkshire Health Board in settlement of his claim for personal injury.

A link to Lady Wise’s decision in the matter can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh24.pdf?sfvrsn=0

A link to a report on the BBC website about the case can be found below:

Man who swallowed his false teeth wins NHS damages

Derek Hamilton wins £195,000 damages after surgery to remove a dental plate left him seriously ill.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/22/duty-of-care/

https://seancrossansscotslaw.com/2020/01/25/counting-the-cost/

https://seancrossansscotslaw.com/2020/01/20/the-plumbers-arm/

https://seancrossansscotslaw.com/2019/08/05/an-unfortunate-error/

Copyright Seán J Crossan, 2 March 2020

Counting the cost

Photo by Ray Reyes on Unsplash

Recently, one of my students asked how judges determine the level of damages that the victim in a personal injury would receive. Was there a formula or did judges make a subjective decision?

I responded that it was the former answer and that there had to be a level of consistency and transparency displayed by judges when making these types of decisions.

The Damages (Scotland) Act 2011; the latest version of the Ogden Tables; judicial precedent; awards made by civil juries; and other relevant legislation will form a framework in which judges will operate to come to their decision in the matter of compensation.

The Ogden Tables deserve a special mention: these are compiled by actuaries using statistical calculations which assist lawyers and courts throughout the UK to assess the monetary value of personal injury and fatal accident claims.

A link to resources about the background to the Ogden Tables can be found below:

https://www.gov.uk/government/publications/ogden-tables-actuarial-compensation-tables-for-injury-and-death

A case which I mentioned in one of my most recent blogs involved medical negligence. In George Andrews v Greater Glasgow Health Board [2019] CSOH 31, Lord Pentland very helpfully lays out in great detail the levels of compensation awarded to the pursuer and the rationale for these. In that case, the pursuer raised an action because his partner had died as a result of a failure by a junior doctor to admit her to hospital when she was chronically ill and had a history of very serious health issues.

It’s quite instructive to see how a judge arrives at deciding the level of compensation to be awarded to successful pursuers.

In George Andrews v Greater Glasgow Health Board [2019], Lord Pentland awarded a sum of approximately £187,614 to the pursuer. This can be broken down as follows:

In the first instance, £2,922.44 was awarded for the pain and suffering (solatium) caused to the deceased partner of the pursuer due to the failure to admit her to hospital.

Lord Pentland made the following observations:

“A number of cases were cited to me; they included: Gallagher v SC Cheadle Hume Limited [2004] CSOH 103, Bellingham v Todd 2011 SLT 1124, McGhee v RJK Building Services Limited 2013 SLT 428 and Manson and others v Henry Robb Limited 2017 SLT 1173. As well as these judicial awards, reference was made to some jury awards. [my emphasis] Having regard to the guidance provided by these cases, to the deceased’s life expectancy of 7.5 years, and to the pursuer’s evidence, I consider that an appropriate figure for damages under section 4(3)(b) of the 2011 Act is £75,000.”

Section 4(3)(b) of the Damages (Scotland) Act 2011 provides that the damages payable to the relative of a deceased person (“A”) should be:

b) such sum, if any, as the court thinks just by way of compensation for all or any of the following –

(i) distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death,
(ii) grief and sorrow of the relative caused by A’s death,
(iii) the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.”

Lord Pentland also awarded the pursuer damages for loss of support. In the case under discussion, the pursuer had lost his partner (whom he had lived with for 20 years before her death) as a result of medical negligence.

Section 4(3)(a) of the 2011 Act addresses this issue:

such sum as will compensate for any loss of support which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of A’s death together with any reasonable expenses incurred by the relative in connection with A’s funeral,

This figure took into consideration the following matters:

“He has no family or children to console him. The pursuer misses the deceased greatly and has had substantial difficulty in adjusting to her death. He has had to sell the house they lived in and can no longer enjoy Christmas and going on holiday. Subparagraph (iii) covers matters such as the inability to share holidays, to pursue mutual interests and to go out socially together. …

… On the basis of a life expectancy of 7.5 years for the deceased, damages for loss of support in terms of section 4(3)(a) of the 2011 Act were agreed in the sum of £65,620, exclusive of interest. I shall allow interest on £55,000 at 4 per cent per annum from 8 January 2013 until the date of decree.”

In terms of Section 9 of the Administration of Justice Act 1982 , a successful pursuer can claim for ‘services’. As Lord Pentland identified in his judgement this might a monetary calculation to include the value of the following matters:

“… the deceased [the pursuer’s partner] did all the ironing and the dusting; the parties shared the cooking. It seems reasonable to proceed on the footing that the deceased would have prepared around half of the parties’ evening meals and that she would have spent several hours a week ironing and dusting. On that basis, I shall allow 3 hours per week at £7.00 per hour for the personal services rendered by the deceased to the pursuer at the time of her death. This brings out a multiplicand of £1,092 per year.”

It is usual practice for the calculation of the value of services to include the pursuer’s past and future losses.

Interest (usually at the statutory rate of 8%) normally accrues on an award of damages, but parts of the award (as in the present case) may have different rates applied.

A breakdown of Lord Pentland’s calculations in respect of damages plus interest (over and above the element for solatium) can be found below:

Section 4(3)(b) above refers to the Damages (Scotland) Act 2011

A link to Lord Pentland’s Opinion can be found below (paragraphs 170 to 185 of the judgement are particularly relevant):

https://www.scotcourts.gov.uk/docs/default-source/default-document-library/2019csoh31.pdf?sfvrsn=0

Related Blog articles:

https://seancrossansscotslaw.com/2019/08/05/an-unfortunate-error/

https://seancrossansscotslaw.com/2020/01/20/the-plumbers-arm/