Guilbert & Ors v Allianz Insurance Plc [2009] ScotCS CSOH

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Guilbert & Ors v Allianz Insurance Plc [2009] ScotCS CSOH_10 (27 January 2009) URL: http://www.bailii.org/scot/cases/ScotCS/2009/CSOH_10.html Cite as: 2009 SLT 264, [2009] ScotCS CSOH_10, [2009] CSOH 10, 2009 Rep LR 28, 2009 GWD 8-138

OUTER HOUSE, COURT OF SESSION

[2009] CSOH 10

PD1313/07

OPINION OF LORD KINCLAVEN

in causa

JEAN FRANCOIS GUILBERT and OTHERS

Pursuers;

against

ALLIANZ INSURANCE PLC

Defenders:

________________

Pursuers: Hofford, Q.C.; Bonar Mackenzie, W.S.

Defenders: J.G. Thomson, Advocate; Simpson & Marwick, W.S.

27 January 2009

Introduction

[1] This is a reparation action arising out of a fatal road traffic accident which occurred on the A9 on 7 July 2004.

[2] The first pursuer, Jean Francois Guilbert, is the husband of the deceased - the late Marie Paul Odile Guilbert.

[3] Liability was admitted and the case came before me for proof on quantum of damages.

[4] Mr Hofford appeared for the pursuers.

[5] Mr Thomson appeared for the defenders.

[6] I was informed that the claims by the second, third and fourth pursuers had been settled and that a measure of agreement had been reached in relation to the claim by the first pursuer.

[7] The issues which required to be resolved after for proof related to the first pursuer's claim for loss of support.

[8] In particular I was asked to decide the appropriate deductions to be made from certain agreed figures to reflect the cost of the deceased's personal needs and maintenance.

[9] The only witness to give evidence was the first pursuer - Jean Francois Guilbert.

[10] Very helpfully counsel produced a detailed Joint Minute of Admissions (No. 24 of Process) which is set out in full below.

[11] In overview, the main difference in principle between the submissions made by the parties related to the significance to be attached to what was described as a "conventional rule of thumb" sometimes used in such cases.

[12] Mr Hofford, for the first pursuer, submitted that there was a rule of thumb which fell to be applied and that it resulted in a deduction of 25% in relation to past and future loss of support.

[13] Mr Thomson, for the defenders, accepted that there was a conventional rule of thumb but contended that it was no more than that - a rule of thumb. He submitted that the court always required to look at the evidence and the facts of the individual case and that, in the present case, it was appropriate to make a deduction of 33% in relation to past loss of support and 50% in relation to future loss of support.

[14] In the whole circumstances, and for the reasons outlined below, I consider that it would be fair and reasonable to make a deduction of 30% in relation to past loss of support and 35% in relation to future loss of support.

[15] I shall illustrate my decision in spreadsheet format below.

[16] I shall also put the case out By Order so that counsel have an opportunity to address me on the precise terms of the interlocutor to be pronounced.

[17] Meantime I shall reserve the question of expenses.

[18] I would outline my decision more fully as follows.

The Background and Pleadings

[19] The Record is No. 14 of Process.

[20] The first conclusion of the summons as amended seeks payment by the defenders jointly and severally to the first pursuer in terms of sections 1(3) and 1(4) of the Damages (Scotland) Act 1976 (as amended) of the sum of £750,000 plus interest.

[21] As appears more fully from the pleadings, the first pursuer sues as an individual and as the widower of the late Marie Paul Odile Guilbert ("the deceased") and in terms of sections 1(3) and 1(4) of the Damages (Scotland) Act 1976 (as amended). He was born on 25 October 1947 and resides in Paris, France. He was employed as a Telecommunications Consultant. The deceased was born on 4 February 1945 and died on 7 July 2004. There are three children of the marriage between the first pursuer and the deceased, namely, the second pursuer Cecilia Quennemet (born 2 December 1975), the third pursuer Evelaine Guilbert (born 19 January 1980) and the fourth pursuer Sylvane Guilbert (born 22 September 1981). All three daughters reside in Paris, France. The Second Pursuer is employed as a Technical Ground Engineer. The third pursuer is employed as a Marketing Consultant. The fourth pursuer is employed as a Water Management Engineer.

[22] On or about 7 July 2004, the fourth pursuer was driving a Renault motor car registration number 342 KLZ 75 along the A9 Inverness to Perth Road. The first pursuer was a rear seat passenger. The deceased was a front seat passenger. The second defender was driving a Vauxhall motor car registration number X67 UGE which collided with the front of the pursuers' vehicle. As a result of the accident, the deceased was killed instantly. The first and fourth named pursuers also suffered injuries.

[23] The first defenders are the motor vehicle insurers of the second defender in terms of section 143 of the Road Traffic Act 1988. In terms of Regulation 3 of the European Communities (Rights against Insurers) Regulations 2002 the first defenders are directly liable to the pursuers to the extent that they sustained loss, injury and damage as a result of the second defender's failures in duty.

[24] Liability was admitted for the purpose of the present action (Answers 4 and 11).

[25] The first pursuer's averments of loss in Article 5 relate solatium, past wage loss, services and outlays. Those heads of loss are not in issue.

[26] The first pursuer's averments in relation to loss of support are contained in Article 6 of Condescendence which is in the following terms:

"The first pursuer has suffered the loss of his wife, the deceased. He had a close and loving relationship with the deceased. He has lost the love, society and affection of the deceased. He has suffered and continues to suffer grief and sorrow at the deceased's death and the circumstances in which it occurred. He has suffered a loss of financial support. The deceased contributed significantly to the household budget. She earned more than the first pursuer. She was due to retire in early 2005 but for the accident. The first pursuer has suffered a loss of the deceased's pension rights. Vouching in respect of the first pursuer's earnings and the deceased earnings and pension rights will be produced. The first pursuer has suffered the loss of those personal services which the deceased would have rendered to him had she lived. The first pursuer has the following heads of claim: (1) damages as a widower under section 1(4) of the Damages (Scotland) Act 1976 (as amended) for the loss of the deceased (2) loss of financial support as widower and loss of personal services under section 1(3) of the Damages (Scotland) Act 1976 (as amended) and (3) funeral expenses. Quoad ultra the defenders averments in answer are denied."

[27] Answer 6 for the Defenders is in the following terms:

"Sections 1(4) and 1(3) of the Damages (Scotland) Act 1976 (as amended) are referred to for their terms beyond which no admission is made. Quoad ultra denied."

The evidence of the first pursuer - Jean Francois Guilbert

[28] In examination-in-chief Monsieur Guilbert explained that he was 60 years of age. He lived in Paris at the address stated in the pleadings. He had just retired from working as a telecommunications consultant in France. His wife was Marie Paul Odile Guilbert (the deceased) who was tragically killed on 7 July 2004. They had been married for 32 years. The deceased was 59 years old when she died. The first pursuer was aged 56 at that time.

[29] The three children of the marriage were Cecilia, Evelaine and Sylvane. They were aged 28, 24 and 23 (respectively) when their mother died. Sylvane, the youngest, was the last daughter to leave home - about 18 months prior to the proof.

[30] The first pursuer described the deceased as a very intelligent, simple-living, individual. There were no large expenditures. She was very generous. They had a lot of common tastes in art and sport. They played music together for elderly people in hospital and retirement homes. They were a very close family. They did a lot of activities together. He still had a close relationship with the children.

[31] The deceased worked in the data processing field as an "IT director". She was well paid. The first named pursuer's earnings depended on the period concerned. When he was employed by a large company, he was paid more. When he ran a start up company business as an independent consultant he accepted a lower salary for himself.

[32] The first pursuer and the deceased had a joint bank account that both salaries went into. The deceased did not spend much on herself. She was very frugal in terms of clothes and hair. She was not interested in appearances. Money went on the home, the car, insurances and joint activities such as travel and sport. The children were also supported until they were independent. Their studies and accommodation and travel were financed from the joint account - for example Sylvane was in Scotland for a year. The first pursuer goes on giving some money to the children - in a savings account that might help them acquire a flat. He had provided a personal guarantee and assisted in the purchase of a flat by way of a "personal deposit". They still have holidays. He used to rent a house by the seaside - and had done so in 2007.

[33] The evidence of the first pursuer given in cross examination can be summarised (and sequenced to provide a basic chronology) as follows:

1. Before the accident the deceased earned a lot more than the first pursuer.

2. The first pursuer's net earnings in 2003 were €21,974.53.

3. The deceased's earnings in 2003 were €65,467.92.

4. Prior to the accident they led a simple life with no large personal expenses. They lived within their income which went on the first pursuer, his wife and their youngest daughter Sylvane. He thought that before the accident about 20% of their income went on supporting Sylvane.

5. In the first year after his wife died the first pursuer had to be cautious. He had to decrease some expenditure. He was not receiving his own retirement income and in 2005 he sold a flat which he was renting.

6. But for the accident, his wife would have retired in 2005.

7. Sylvane finished her studies in December 2006.

8. The first pursuer retired in 2007 aged 60.

9. His income was higher when he retired.

10. His net income from his pension was €52,141.

[34] There was no re-examination.

Joint Minute of Admissions

[35] The Joint Minute of Admissions is No. 24 of Process.

[36] For the purposes of the present action, the parties were agreed as follows:

"1. That all heads of claim in the current action, with the exception of:

(a) past loss of support;

(b) interest on past loss of support; and

have a combined total value of £80,000 inclusive of interest to 17.6.08 and that thereafter interest will be applied at 8% per annum.

2. That for the purposes of assessing past loss of support, that following matters are agreed:

(a) that from the date of death (7.7.04) to 17.6.08

(i) the combined income of the deceased, Marie Paul Odile Guilbert, and the first pursuer would have been 362,798 Euros net of tax;

(ii) the first pursuer's income was 102,685 Euros net of tax;

(b) that from the date of death (7.7.04) to 17.6.08, the first pursuer's loss of support is to be calculated by reference to the combined income (362,798 Euros net of tax) less a percentage deduction to reflect the cost of the deceased's personal needs and maintenance;

(d) that the resultant figure is then subject to the deduction of the first pursuer's net income (102,685 Euros) resulting in a net figure constituting past loss of support;

(e) that interest on the resultant figure is to be applied at 4% per annum from 7.7.04 to 17.6.08 and thereafter at 8% per annum.

3. That for the purpose of assessing future loss of support, the following matters are agreed:

(a) that the combined income of the deceased and the first pursuer is 118,609 Euros per annum net of tax;

(b) that the first pursuer's deductible income is 52,141 Euros per annum net of tax

(c) that the first pursuer's loss of support is to be calculated by reference to the combined income (118,609 Euros net of tax) less a percentage deduction to reflect the cost of the deceased's personal needs and maintenance;

(d) that the size of the said percentage deduction is a matter for the court to decide;

(e) that the resultant figure is then subject to the deduction of the first pursuer's net income (52,141 Euros) resulting in a net figure constituting the multiplicand for determining future loss of support.

(f) that the applicable multiplier is 16.

(h) that the future loss of support is determined by 16 x the multiplicand arrived at in paragraph 3(e) hereof."

[37] Counsel were also agreed that the appropriate rate for converting Euros to Pounds (Sterling) was the rate current on 17 June 2008, namely:

€ 1 Euro = £ 0.7945 Pounds (Sterling).

Productions

[38] The only production referred to at the Proof was the Pursuer's Production No. 6/10 of Process described as "Earnings Summary Document for the First Named Pursuer".

The Damages (Scotland) Act 1976

[39] Section 1(3) of the Damages (Scotland) Act 1976 (as amended) provides as follows:

"(3) The damages which the responsible person shall be liable to pay to a relative of a deceased under this section shall (subject to the provisions of this Act) be such as will compensate the relative for any loss of support suffered by him since the date of the deceased's death or likely to be suffered by him as a result of the act or omission in question, together with any reasonable expense incurred by him in connection with the deceased's funeral."

Authorities and References

[40] Counsel also referred me to the following authorities and references:

1. Porter v Dickie 1983 SLT 234, Lord Ross at page 235-236;

2. Harris v Empress Motors Ltd (CA) [1984] 1 WLR 212, O'Connor L.J. at pages 216H-217D;

3. Brown v Ferguson 1990 SLT 274, Lord Sutherland at page 275I to 276B;

4. Wotherspoon v Strathclyde Regional Council 1992 SLT 1090, Lord Abernethy at page 1091F-H and 1091L;

5. Sargent v The Rt Hon Donald Dewar MP 2001 SCLR 190, Lord Clarke at page 191B and 195C;

6. Smith's Executrix v J. Smart (Contractors) plc 2002 SLT 779, First Division, Lord President (Cullen) at page 780F-H;

7. Audrey Weir v Robertson Group (Construction) Limited [2006] CSOH 107, Lord Glennie at paragraphs [19] and [20]; and

8. Kemp and Kemp on The Quantum of Damages in relation to "Dependency Claims; Calculating the Loss: The Multiplicand" (paragraph 29-033 to 29-048) at paragraphs 29-035 to 29-038, and paragraph 29-040.

The Submissions for the First Pursuer

[41] In essence, Mr Hofford for the first pursuer, submitted that there was a rule of thumb which fell to be applied in this case that it resulted in making a deduction of 25% in relation to past and future loss of support.

[42] Mr Hofford took as his starting point the views of Lord Glennie in Audrey Weir v Robertson Group (Construction) Limited [2006] CSOH 107. In that case a figure of 30% was used as a deduction. That was an agreed compromise between 25% and 33.33%.

[43] In particular, in relation to loss of support Lord Glennie said:

"
[19] Before coming to deal with these two separate factors, it is necessary to summarise briefly the evidence given by the pursuer in this respect. She said that the deceased smoked cigarettes, possibly up to about 20 a day depending upon how busy he was. He did not drink much. He never went to the football. She gave the impression of a close family life in which the deceased was involved with domestic affairs and gardening as well as being a good father to his children. She felt that substantially all of his earnings came into the family and that he kept little for himself. She also had an income of £3,615.15. Both of their incomes were paid into the joint account and used for the benefit of the family as a whole.

[20] I am told that there is no hard and fast rule reflected in the Scottish authorities as to the appropriate percentage to apply. However, the English cases have shown the development of a standard practice, which might almost be described as a rule, to be applied in the absence of factors justifying a departure from it. In terms of this rule, the appropriate percentage is about 75% where there are dependent children of the family, and 66.67% where there are no children. The justification for this that where there are children the net earnings of the deceased are divided between four equal recipients, namely the deceased himself, the spouse, the children and the household in general, whereas, where there are no children, there are only three equal participants in the net earnings. An exposition of this conventional rule is to be found in the case of Robertson v Le Strange [1985] 1 A11.E.R. 950 at 955. It is not necessary for me to refer to other passages in the authorities and textbooks in support of this approach, since Mr Smith, for the pursuer, suggested that to reflect the fact that there would be dependent children in the family for a number of years but thereafter they would leave the home, I should find a figure between these two extremes and take 70% as the appropriate percentage. Mr Laing for the first defenders was content with this."

[44] In support of his submission Mr Hofford also referred me to the following cases.

[45] Harris v Empress Motors Ltd (CA) [1984] 1 WLR 212, O'Connor L.J. at pages 216H-217D. That case was cited as authority for the proposition that where the family unit is husband and wife the conventional figure is 33% and where there are children the deduction falls to 25%.

[46] Brown v Ferguson 1990 SLT 274, Lord Sutherland at page 275I to 276B. In that case Lord Sutherland stated that:

"The normal approach to the position where both spouses are earning is to add the incomes together and deduct say 25 per cent as being for maintenance of the deceased. The net figure so arrived at less the earnings of the surviving spouse forms the loss of dependency."

[47] Wotherspoon v Strathclyde Regional Council 1992 SLT 1090, Lord Abernethy at page 1091F-H and 1091L. In that case, Lord Abernethy agreed with Lord Sutherland's comments in Brown v Ferguson. He said:

"In the present case I consider that 25 per cent would be an appropriate deduction for the deceased's maintenance."

[48] Sargent v The Rt Hon Donald Dewar MP 2001 SCLR 190, Lord Clarke at page 191B and 195C. In that case Lord Clarke said (at page 195C):

"I therefore consider that following the approach of the Court in Brown v Ferguson ... as was applied in Wotherspoon v Strathclyde Regional Council ... I should add a figure of 11 x £7,400 to the figure of £330,000 as representing the joint income of the parties available for the family, making a total of £411,400. In my judgment from that should be deducted 30 per cent in respect of the deceased's own maintenance, leaving £287,980. From that figure falls to be deducted the figure for the first pursuer's income, viz £81,400 leaving £206,580 as the sum which would have been available for family support."

[49] Smith's Executrix v J. Smart (Contractors) plc 2002 SLT 779, First Division, Lord President (Cullen) at page 780F-H. In that case the Lord Ordinary excluded from probation averments relating to loss of support. In the Inner House the Lord President said:

"
[6] [an] important consideration is that in practice the assessment of loss of support is approached by judges on a broad basis: the evidence bearing on the extent of relative support may well be of an imprecise nature and a number of imponderable elements have to be taken into account. In Hatherley v Smith, Lord McCluskey at 1989 SLT, pp 318-319, remarked that it was not necessary for the pursuers in such cases to aver what the deceased spent on himself or what proportion of the food and drink was appropriated to his personal consumption. He referred to recent cases in which judges had taken a broad approach and held that the deceased in the family circumstances disclosed was, in effect, consuming one third or one quarter of his income, and accordingly the rest was deemed available for the purposes of supporting the survivors.

[7] A number of decisions illustrate the approach which has been adopted where both spouses are employed. In Brown v Ferguson, which was decided shortly before Hatherley, Lord Sutherland observed at 1990 SLT, p 275:

'The normal approach to the position where both spouses are earning is to add the incomes together and deduct say 25 per cent as being for maintenance of the deceased. The net figure so arrived at less the earnings of the surviving spouse forms the loss of dependency'.

Cf Wotherspoon v Strathclyde Regional Council and Sargent v Dewar. It follows, that in the absence of averments directed to supporting a different basis, the averments of the pursuers in such an action would be understood as inviting the court to take the normal approach which we have described.

[8] In the light of these considerations we are not persuaded that in the present case, where it was averred that the second pursuer was supported from the deceased's earnings, the absence of averments by the pursuers as to the extent to which the deceased supported the family or as to the extent to which the spouses shared in that support represents a fundamental lack of proper specification of the pursuers' pleadings."

[50] Mr Hofford sought to distinguish the case of Porter v Dickie 1983 SLT 234 on its facts. He suggested it had no relevance given the terms of the Joint Minute in the present case.

[51] I was also informed that Sylvane had received a small sum reflecting a loss of support but no details were provided.

[52] In the result, Mr Hofford submitted that there was a rule to the effect that there should be a deduction of 25% in the present case for both past and future loss of support.

[53] He submitted that if the defenders wished to contend for a figure higher than 25 % they must make averments and lead evidence to that effect. That was the effect of the rule and there was nothing by way of averment or evidence from the defenders which could give rise to a different approach in the present case. So it was argued.

[54] Mr Hofford accepted, somewhat reluctantly, that the court may be entitled to take a broader more flexible approach but he suggested that was limited to making a small adjustment to the figure of 25% and only where there was an averment by the defenders that would merit modification.

The Submissions for the Defenders

[55] Mr Thomson, for the defenders, accepted that there was a rule of thumb that could be applied in relation to the assessment of loss of support but he contended that it was no more than that - a rule of thumb.

[56] There was no rigid rule that called for a 25% deduction in this case as the pursuer suggested.

[57] It was for the pursuer to establish his case on facts admitted or proved.

[58] The pursuer in this case had not sought to establish the value of the dependency by building it up item by item.

[59] It was now for the court to make a reasonable assessment based on the evidence.

[60] In essence, Mr Thomson submitted that the court always required to look at the evidence and the facts of the individual case.

[61] In the present case, it was appropriate to make a deduction of 33% in relation to past loss of support and 50% in relation to future loss of support.

[62] That was the effect of the authorities listed above. So it was argued.

[63] In the course of his submission, Mr Thomson highlighted features of the present case which he suggested were unusual.

[64] In particular, when the first pursuer retired his income increased by a fairly large amount. He was earning about €22,000 but his income increased to about €52,000. In contrast the deceased was earning just over €65,000 and would have been entitled to a pension of just over €66,000. After retirement there would be a broad equivalence of incomes without any suggested increase in outlays. In the circumstances the court should consider that a deduction of 50% was more appropriate.

[65] After retirement, the first pursuer was less dependent on the deceased.

[66] Mr Thomson accepted that Sylvane was supported to some extent after the accident but he suggested that the children would not have been a significant drain on family resources given their respective ages, circumstances and employment.

[67] Mr Thomson also referred me to Porter v Dickie 1983 SLT 234, Lord Ross at page 235 - 236 as support for the proposition that there was nothing wrong in breaking down a loss of support claim into different periods. In that case Lord Ross said in relation to loss of support:

"(a) I first consider the position up to May 1981 when the pursuer became redundant. The evidence is that the pursuer and the deceased pooled their resources. At the date of death the pursuer's net wage was £46 per week. In my opinion, it would be reasonable to regard one-half of that total as required for the support of the deceased and the other half for the support of the pursuer, and following upon the death of the deceased the pursuer would suffer no loss since he still had his own earnings of £58 per week which was more than half of the joint earnings. In the circumstances I feel that the pursuer has not established any loss of support during this period. Counsel for the pursuer urged me to make some award for this period although he admitted that any loss must be slight; in my opinion, however, the pursuer is not entitled to any damages in respect of loss of support for this period.

(b) I next consider the period from May 1981 to May 1982. ... Again, I regard it as reasonable to assume that half of the joint earnings would have been available for the support of the pursuer and the remaining half for the support of the deceased. ...

[68] Mr Thomson also referred me to Kemp and Kemp on The Quantum of Damages in relation to "Dependency Claims; Calculating the Loss: The Multiplicand" (paragraph 29-033 to 29-048) at paragraphs 29-035 to 29-038 and paragraph 29-040.

[69] I will consider Kemp and Kemp in greater detail below.

Observation of the Authorities

[70] At this stage, it might be helpful to make a few observations on the authorities listed above.

[71] In relation to Audrey Weir v Robertson Group (Construction ) Limited I am not persuaded that Lord Glennie was seeking to lay down a rigid rule of the sort now argued for by the first pursuer.

[72] On the contrary Lord Glennie begins paragraph [20] with the words "I am told that there is no hard and fast rule reflected in the Scottish authorities as to the appropriate percentage to apply." I agree with that basic proposition.

[73] In Brown v Henderson, Lord Sutherland refers to deducting "say" 25% (emphasis added). That is not a firm foundation for the rigid rule suggested by the first pursuer.

[74] In Smith's Executrix v J Smart (Contractors) plc the Court did not prescribe a rigid 25% rule. The Lord President referred to the assessment of loss of support being approached by judges "on a broad basis".

[75] In any event Smith's Executrix concerned a point of relevancy and specification. The procedural position and the issues were different. I require to make an assessment of damages after proof.

[76] Porter v Dickie illustrates that the court can take a broad flexible approach and may treat different periods of time in different ways.

Kemp and Kemp on The Quantum of Damages

[77] It might be helpful to consider the views of the learned authors of Kemp and Kemp on The Quantum of Damages (in paragraph 29-033 - 29-048) in a little more detail.

[78] In particular, for ease of reference, it might be helpful to extract a series of short passages as follows:

1. "Providing that the deceased's dependants can give reasonable accurate evidence, the best way in many cases to establish the annual value of the dependency is to build it up item by item ..." (paragraph 29-035).

2. "At this stage it is often helpful to apply a cross-check to the dependants' estimates by ascertaining the deceased's net annual income at the date of his (or her) death to see whether it could in fact cover the total estimated dependency and still allow enough for the deceased's keep and his personal expenditure." (paragraph 29-035).

3. "Where it is difficult to obtain reliable evidence as to payments made by the deceased to or for the benefit of his dependants, an alternative, although less accurate, approach may be adopted. Start with the deceased's net income at the date of his death: estimate how much of this he spent on himself: then, if his pattern of life justifies the assumption, take the remainder of his net income as being spent for the benefit of his dependants." (paragraph 29-035).

4. "It is now common practice to apply a conventional rule of thumb that the dependency is 66 per cent for a spouse and 75 per cent where there are also children. This was described by O'Connor L.J. in ... Harris v Empress Motors Ltd. ..." (paragraph 29-036).

5. "This rule of thumb will only be applied in a normal case with no unusual features." (paragraph 29-037).

6. " ... It is clear that the value of the dependency cannot be taken at such an arbitrary figure and must always depend on facts. See Shiels v Cruikshank [1953] 1 W.L.R 536, HL, Mallett v McMonagle [1970] A.C. 167 per Lord Diplock at 176 D-G, Taylor v Connor [1971] A.C. 115 where the figure taken amounted to about 50 per cent and there was no hint of a two-thirds rule..." (paragraph 29-037).

7. "Whilst the rule of thumb approach has the great merit of simplicity in an area in which in many cases a detailed analysis will be disproportionate to the sums at stake, it is suggested that there should be at least some reflection as to whether to provide direct evidence instead especially by claimants." (paragraph 29-038).

8. "Something further should be said about the so-called "rule of thumb". Where there are no dependent children the dependency (whether upon a sole income as in Harris v Empress Motors, or a joint income as in Coward v Comex) is said to be two‑thirds. This is because it is presumed that one-third of the family income was spent on each spouse exclusively, and the remaining one-third on joint expenditure (rent/mortgage, fuel etc). Where there are children, the rule of thumb is that the dependency (of widow and children taken together) rises to 75 per cent. Now the rule of thumb decrees that one quarter is spent on each spouse, one quarter on the children, and one quarter on joint expenses. These percentages may need adjustment depending on the number of children; and it is important to emphasise that these presumptions may be displaced by hard evidence as to how the family purse was actually spent." (paragraph 29-039).

9. "Prospective changes to the dependency. The court will probably also have to estimate how the financial relationship, between the deceased and the dependant would have continued in the future. In general terms, that is simply part of assessing what benefit the dependant had a reasonable expectation of receiving." (Kemp and Kemp paragraph 29-045).

[79] The guidance given by Kemp and Kemp does not suggest such a rigid and inflexible approach as that suggested by Mr Hofford

Discussion

[80] In light of the competing submissions of counsel, it might be helpful to begin with a few general observations - which may (or may not) be self evident.

[81] The main objective in such cases is to make a fair and reasonable assessment of damages such as will put the claimant back to the same position as he would have been but for the defenders' breach of duty.

[82] The over-arching principle, in my opinion, is that every case depends on its own particular facts and circumstances and falls to be decided according to the evidence.

[83] In effect, Mr Hofford on behalf of the first pursuer suggested that where a pursuer makes an averment that he had suffered loss of support the court should apply a deduction of 25% in a case where there are children unless the defenders aver and prove something that indicated that a higher percentage was appropriate. I do not agree.

[84] In my opinion, there is no rule of Scots law that all a claimant requires to do in order to secure an award of damages is to make an averment of entitlement. An averment by the pursuer is a necessary starting point but it is only a starting point. Averments require to be based on evidence and, in the absence of agreement, the averments require to be supported by evidence at proof if they are to be insisted upon. The initial burden of proof rests with the pursuer.

[85] Such general considerations apply even in relation to the relatively simple averments found in Chapter 43 Personal Injury Actions.

[86] Ultimately, the assessment of the evidence remains a matter for the court - having regard to the whole circumstances including credibility and reliability, and quality, character and strength of the evidence adduced. That is nothing new.

[87] What is new is the suggestion made on behalf of the pursuer in this case that a 25% deduction should take effect as something akin to a rigid rule. In my view there is no such rigid rule - at least not in Scots law - and not in relation to a case where the children concerned are adults who have left home and are in employment.

[88] A rule of thumb may be a useful tool and a starting point or a cross-check available to help reduce the matters in dispute and to focus the issues but it is no substitute for deciding a case according to the evidence.

[89] In the absence of agreement, it is for the pursuer to satisfy the court that the sums claimed are appropriate, fair and reasonable in the circumstances of the particular case concerned.

[90] In my view, there is no hard and fast rule reflected in the Scottish authorities as to the appropriate percentage to apply.

[91] Mr Hofford highlighted the fact that a rule provides a way of avoiding what might otherwise be a tedious exercise. That may well be so but do not regard that in itself as a good reason for not carrying out an exercise (tedious or otherwise) if it results in a fair and reasonable assessment of damages.

[92] In my view, it is also open to the court to make different allowances by way of deduction in relation to different periods of time - depending always on the circumstances of the case.

[93] For those reasons, and to the extent outlined above, I do not accept the pursuer's submissions in relation to the rule of thumb.

[94] Against that background, I now turn to my assessment of the appropriate percentages in the circumstances of this particular case.

The Appropriate Percentages

Past Loss of Support

[95] In relation to past loss of support, in my view, 25% is too low.

[96] There are three children of the marriage but they are all adults, in employment and living away from home - as outlined above. There was, however, evidence of some continuing financial support after the accident.

[97] In the circumstances, in my opinion, the appropriate percentage deduction in relation to past loss is 30%.

Future Loss of Support

[98] 25% is also too low in relation to future loss of support.

[99] Any support to the children is likely to be modest and diminishing.

[100] I have given careful consideration to Mr Thomson's arguments but I am not satisfied that it would be appropriate to allow a deduction as high as 50%.

[101] The first pursuer's income did increase when he retired whereas the deceased's income remained broadly the same. That provides a good basis for a fresh assessment of loss in relation to future loss. However, it does not necessarily mean that a higher percentage deduction is called for. The "new" post-retirement income figures are used to form the basis of the fresh assessment - including the new combined net income (118,609 Euros)and the new figure to be deducted in respect of the first pursuer's net income(52,141 Euros). The question as to the appropriate percentage deduction still remains at large for assessment by the Court - along the lines outlined above.

[102] In my opinion, in this case, the appropriate percentage deduction in relation to future loss is 35%.

[103] It might be helpful if I illustrate my views in the form of a schedule of damages.

Schedule of Damages

[104] The effect of my decision can be illustrated as follows:

Time Periods and Interest

	Date of accident and death				07/07/2004
	Date of assessment				17/06/2008
	Period from accident to assessment				3.95	years
	If allow Interest at				4.00	%
	Total interest to date of assessment				15.79	%
	Interest from		17/06/2008		8	%


Past Loss of Support

	From	07/07/2004	to	17/06/2008

	First Pursuer's net income				102,685.00		Euros
	(an average of		26,009.73	per annum)

	Deceased's net income				260,113.00		Euros
	(an average of		65,885.67	per annum)
					_________

	Combined net income				362,798.00		Euros
	(an average of		91,895.40	per annum)

	Deduct for personal maintenance of deceased

		30.00	%		108,839.40		Euros
					_________

	Sub-Total				253,958.60		Euros

	Deduct First Pursuer's net income				102,685.00		Euros
					_________

	(A) Past loss of support				151,273.60		Euros

	(B) Add interest to		17/06/2008

		15.79	%		23,888.80		Euros
					_________

	Past Loss of Support inclusive of interest (A) + (B)					175,162.40	Euros

Future Loss of Support

	From	17/06/2008

	First Pursuer's net income				52,141.00		Euros

	Deceased's net income				66,468.00		Euros
					_________

	Combined net income				118,609.00		Euros

	Deduct for personal maintenance of deceased

		35.00	%		41,513.15		Euros
					_________

	Sub-Total				77,095.85		Euros

	Deduct First Pursuer's net income				52,141.00		Euros
					_________

	Multiplicand for loss of support				24,954.85		Euros

	Agreed Multiplier			x	16.00		years
					_________

	(C) Future Loss of Support					399,277.60	Euros
						_________

	Total Loss of Support (A) + (B) + (C )				€	574,440.00


	Convert Euros to Pounds Sterling
	using agreed conversion rate			x		0.7945
						_________

	Total Loss of Support					456,392.58	Pounds


Other Heads of Claim

	Add other agreed Heads of Claim					80,000.00	Pounds
						_________

	Total Award for First Pursuer				£	536,392.58
						_________

	with interest thereon at			8	%
	from			17/06/2008
	until payment

[105] In the whole circumstances, lest my calculations are contentious, I shall put the case out By Order so that counsel can address me on the precise terms of the interlocutor to be pronounced in light of my decision - whether in terms of a Joint Minute or otherwise.

[106] Meantime I shall reserve the question of expenses.

Scottish Court of Session Decisions