Scottish Court of Session Decisions

This action arises from an accident suffered by Miss Susan Irvine in the Balmoral Hotel, Edinburgh on 30 December 1993. The action was raised by Miss Irvine, as first pursuer, and by her mother, Mrs Ann Irvine, as second pursuer. Mrs Irvine claimed damages for the distress suffered by her on witnessing the accident. Mrs Irvine's claim has been settled. I shall therefore refer to Miss Irvine simply as "the pursuer".

The pursuer avers that she was having afternoon tea with her mother and her sister in the Palm Court of the hotel. A waiter came to their table with a tray on which there was a pot of tea and a pot of hot water. The waiter reached across the table towards the pursuer and as he did so he dropped the tray. The pots fell onto the pursuer's lap and their contents spilled over her. The pursuer avers that she suffered serious scalding injuries to her thighs and groin and consequent psychological damage.

The defenders admit liability on record and interim damages of £11,000 have been awarded.

By interlocutor dated 16 April 1998 the case was remitted to the procedure roll for debate on the defenders' first plea-in-law, which is a general plea to relevancy seeking dismissal. On 7 September 1998 the defenders lodged a Note of Arguments. In this note the defenders did not argue for dismissal. Instead they sought to have the case withheld from jury trial for five reasons. The first three related to points of specification of the pursuer's averments of loss. The other two were to the effect that the action was per se unsuitable for jury trial. On 23 September 1998 the defenders lodged a Supplementary Note of Arguments in which they suggested a further reason why the action was unsuitable for jury trial. None of these reasons is foreshadowed in the pursuer's pleadings, nor do the defenders have a plea that special cause exists for the withholding of jury trial.

When the case came before me on the procedure roll counsel for the pursuers took the preliminary objection that the defenders were not entitled to argue that the case should be withheld from jury trial because they had given no notice of the point on Record. I reserved my decision on this question and heard the debate on the reasons put forward by the defenders in their Notes of Arguments. I shall return to the preliminary point later.

The pursuer has a statutory right to jury trial and can be deprived of it only if the defenders can persuade the court that there is some cause special to the case that makes the case unsuitable for that procedure.

The special cause may relate to the state of the pursuer's pleadings. It is a precondition of any jury trial that there are no outstanding questions of relevancy (Moore v Stephens & Sons Ltd 1954 SC 331). If the pursuer's pleadings are of doubtful relevancy, that in itself is special cause for the refusal of jury trial (Boyle v Glasgow Corporation 1949 SC 254). There may also be a special cause unrelated to the pleadings, for example delay (e.g. Conetta v. Central SMT Co., 1966 SLT 302). The defenders' submissions in this case relate to special causes of both kinds.

In his submissions counsel for the defenders confined himself to four of the reasons intimated in his Notes of Argument. I am satisfied that none of these reasons justifies the withholding of jury trial.

The pursuer's averments on this point are as follows:

It was argued for the defenders that in these averments the pursuer had failed adequately to specify the services that her parents had provided, or the period during which those services were provided, and that she had failed to specify what was her "every need".

I do not accept this objection. The pursuer has given fair notice that she was confined to bed for several weeks after the accident and that as a result her parents had to provide services for her. She does not have to condescend in minute detail on the services that she received. Neither the defenders nor in due course the jury should have any difficulty in understanding what services someone in the pursuer's position would have required.

In a section 8 claim, especially where as in this case the claim is likely to be of modest value, the court or the jury should take a broad approach to the assessment of damages (Ingham v John G. Russell (Transport) Ltd 1991 SC 201, Lord Justice-Clerk Ross at 205, Lord McCluskey at 211). In my view, the pursuer has an adequate basis on Record on which to lead evidence in support of this head of claim.

The pursuer avers:

Counsel for the defenders, while not demanding a detailed chronology of the course of the pursuer's illness, argued that the pursuer had failed to give proper notice of the main events in the course of the her post-accident medical history and of the dates on which these events occurred. He argued that the pursuer should specify which of the conditions that she suffered were short-lived and which were continuing.

I do not accept this submission. In my view, the pursuer has given fair and sufficient notice of the psychological consequences that she claims to have suffered. I cannot see that the defenders are in any way disadvantaged in the preparation of their defence on these questions, particularly since they can recover the pursuer's medical records and have her medically examined on their own behalf.

In answer to the pursuer's averments as to the psychological consequences of the accident the defenders make the following averments:

In reply to that the pursuer makes the following averments:

Counsel for the defenders argued that the parties' averments on these matters raised complex questions of causation relating to the pursuer's condition of post-traumatic stress disorder. There would be competing medical evidence on these questions. These complexities would be beyond the grasp of a jury.

In my view the fears raised by counsel for the defenders are overstated. The defenders themselves have raised the complication regarding the Cairo fire and the pursuer has given a succinct answer to the point that they make. In my view, the parties' pleadings on the point raise clear-cut questions of fact that will be resolved by the medical evidence. I am not persuaded that the medical evidence on these questions will necessarily be technical or complex.

But even if the medical evidence is to be technical and complex, that will not of itself make the case unsuitable for jury trial. Such complicated medical questions are commonly treated as matters of fact that are appropriate for the decision of a jury. There is nothing in the present case to suggest that it raises any medical question of such novelty or uncertainty that the jury are unlikely to understand it (cf. Fyfe v Barnet & Morton Ltd 1965 SLT (Notes) 52).

I have no reason to think that a jury will be unable to reach a common sense decision on the matter in the light of the evidence. They will receive appropriate directions from the presiding judge.

In declining to accept the defenders' argument on this point I take a similar approach to that taken by Lord Robertson in Barbour and Another v McGruer (1967 SLT (Notes) 41) and by Lord Avonside in Gardner v A. B. Fleming & Co Ltd (1969 SLT (Notes) 93).

The pursuer avers that:

In their Supplementary Note of Arguments the defenders submit that the documents relating to the pursuer's business records that they have recovered by commission and diligence "are in such a state as to make them difficult for a jury to follow, irrespective of assistance from an expert witness such as an accountant or direction from a judge." Counsel for the defenders informed me that the defenders were unable from these documents to make any accurate calculation of the pursuer's loss of income.

In my view this is not a good objection. It is not, I think, a point for the court to consider at this stage; and even if it is, it does not raise a question of special cause.

It is not appropriate for the court to attempt to reach any conclusion as to the evidential value of documents recovered by the defenders which may not in the event be produced. But even if the court were to accept the defenders' view of those documents, it would not provide any good reason for the refusal of jury trial. The onus will be on the pursuer to lodge such evidence as will entitle the jury, if they accept it, to make an award under this head of damages. It will be for the pursuer's advisers to decide whether to lodge documentary evidence and, if so, how best to present that evidence in a way that the jury can readily understand. If the evidence lodged on the pursuer's behalf is inadequate or incomprehensible, the pursuer will fail to prove this head of her claim. That is a problem that confronts the claimant in every contested action, no matter what the form of the enquiry.

Since I shall allow a jury trial, I need not decide the defenders' preliminary point. The older cases decided under different rules of court indicate that it was not the invariable practice for a defender who sought to avoid jury trial to table a specific plea in law to that effect (e.g. McIntosh v Cameron 1929 SC 44; McFaull v Compania Navigacion Sota y Anzar 1937 SLT 118; Robertson v T & H Smith Ltd 1962 SC 628); but that had certainly become the recognised practice when jury trial was last in fashion (Rigley v Remington Rand Ltd 1964 SLT (Notes) 100; Anderson v BRB 1974 SLT (Notes) 10).

In my view, it is good practice for the defender in such a case to give fair notice by tabling a plea in law supported by appropriate averments. Whether the defender's failure to do so precludes him from arguing the point; whether notice of it in a note of arguments would be sufficient; and whether any distinction falls to be made between cases where the special cause relates to the pleadings and cases where it relates to some extraneous consideration, are questions that I would prefer to decide on a fuller argument than I heard in this case.

I shall repel the defenders' first plea-in-law and allow issues.