Description
The pursuer suffered serious injury as a result of an accident while at work and sought damages in respect of common law negligence and breach of statutory duty from his employers, the defenders. The heads of damages included continuing loss of earnings and the cost of future care and support. Taking advantage of the amendment process, the pursuer sought to increase the sum sued for and included averments raising the issue of the appropriate discount rate to be adopted in determining damages for future pecuniary loss. The defenders sought the deletion of the pursuer's averments directed at the appropriate discount rate on the grounds of unfair prejudice consequent upon a new issue being introduced at a late stage and on fundamental irrelevancy. The pursuer insisted on the inclusion of the impugned averments on the grounds that the discount rate fixed by the Scottish Ministers was no longer appropriate and the court should exercise its discretion to adopt a more appropriate rate.
The impunged averments were found irrelevant. Held; i) where a party takes an opportunity to improve pleadings or to introduce new matters under the guise of answering a Minute of Amendment, these answers fall to be regarded as if they had appeared in a separate minute of amendment and therefore may be objected to on the same basis. In the event of such objection it becomes a matter for the court's discretion as to whether such answers will be allowed to form part of the pleadings; ii) the assumed real rate of return on investment when calculating compensation for future pecuniary loss must be key to any calculation of the appropriate multiplier if the resultant lump sum of damages is to adequately compensate a pursuer. It followed that the impunged averments were very relevant to the determination of an appropriate discount rate; iii) the 2.4% discount rate prescribed by the Scottish Ministers is the general rule, which is only subject to
section 1(2), Damages Act 1996 if a party can show that on the circumstances of the particular case another rate is more appropriate. Whether or not a case is one in which the prescribed rate is appropriate depends on whether the case was not in the Lord Chancellor's contemplation by reference to the considerations mentioned by Dyson LJ at [33] in
Warriner v Warriner [2002] EWCA Civ 81; iv) the purposes of certainty and avoidance of litigation would be defeated by an interpretation of section 1(2) which meant that the discount rate was up for reconsideration whenever a party took the view that one or other of the factors relied on by the Lord Chancellor when making the section 1(1) order was, for whatever reason, less than robust. As such, the pursuer's claim that the economic conditions of 2012 had clearly and materially changed since the rate was fixed in 2002 was found irrelevant. The pursuer had not attempted to aver that this was not one of a generality of cases. Whether the impunged averments would be irrelevant in the event of the pursuer applying for judicial review of the Scottish Minister's failure to exercise the section 1(1) power in the face of the economic changes that have supervened since 2002 was not an issue that the court was required to consider.
