Tortolano v Ogilvie Construction Ltd [2013] ScotCS CSIH_10 (21 February 2013)

Tortolano v Ogilvie Construction Ltd [2013] ScotCS CSIH_10 (21 February 2013)

Section 1(2) of the Damages Act 1996 permits departure from the prescribed discount rate only where there are case-specific features justifying a different rate; general economic changes affecting all cases do not suffice. The pursuer's proposed averments did not disclose any such case-specific feature and were properly excluded.

Citation
[2013] ScotCS CSIH_10
Parties
Pursuer and Reclaimer: Anthony Stephen Tortolano; Defenders and Respondents: Ogilvie Construction Limited
Jurisdiction
Scotland
Judgment Date
21 February 2013
Procedural Posture
Personal Injury Damages Action / Reclaiming Motion (appeal) Against Interlocutor Refusing Amendment to Allow Averments on Discount Rate
Outcome
appeal refused
Legal Topics
Discount Rate for Future Pecuniary Loss, Damages Act 1996 Section 1, Damages (personal Injury) (scotland) Order 2002, Judicial Discretion to Depart From Prescribed Rate, Statutory Construction
Personal Injury Damages Statutory Interpretation Discount Rate for Future Pecuniary Loss Damages Act 1996 Section 1 Damages (personal Injury) (scotland) Order 2002 Judicial Discretion to Depart From Prescribed Rate Statutory Construction

Case Brief

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Parties

Anthony Stephen Tortolano

Pursuer and Reclaimer

Ogilvie Construction Limited

Defenders and Respondents

Procedural Posture

Personal Injury Damages Action / Reclaiming Motion (appeal) Against Interlocutor Refusing Amendment to Allow Averments on Discount Rate

Legal Issues

  1. 1 Whether a pursuer can lead evidence to justify a discount rate different from the statutory prescribed rate under section 1(2) of the Damages Act 1996
  2. 2 Whether general economic changes constitute a 'case specific' reason under section 1(2)
  3. 3 Proper construction of section 1(1) and 1(2) of the Damages Act 1996

Ratio Decidendi

Section 1(2) of the Damages Act 1996 permits departure from the prescribed discount rate only where there are case-specific features justifying a different rate; general economic changes affecting all cases do not suffice. The pursuer's proposed averments did not disclose any such case-specific feature and were properly excluded.

Court Disposition

appeal refused

Orders

  • Reclaiming motion refused; interlocutor of the Lord Ordinary dated 10 October 2012 adhered to; pursuer's proposed averments on discount rate excluded.