Scottish Court of Session Decisions

This action in which the pursuer claims damages for injuries sustained when he fell from a catwalk onto scaffolding which he alleges was 40 feet below the catwalk, came before me on procedure roll in respect of the defenders' second, third and fourth pleas-in-law.

Somewhat surprisingly, despite the fact that the pursuer had pled one common law and three separate statutory cases under different statutory provisions, the defenders took no issue on the relevancy or complexity of that aspect of the case. It is, however, necessary to note that at the inquiry there will be issues relating to common law and statutory liability as well as contributory negligence.

The defenders' argument was that various averments relating to the pursuer's injuries and loss were irrelevant, or of doubtful relevancy, and that insofar as these were doubtful, special cause existed for withholding the case from jury trial. The defenders also have a general plea to the relevancy of the case which they did not argue. The defenders' criticism of the pursuer's averments was mainly directed towards their confusion and lack of specification. The pursuer averred that he fell through a distance of approximately 40 feet. He said he sustained injuries to his head but the only specified injury was a "significant peri-orbital haematoma", otherwise a black eye. He was detained in hospital overnight and resumed work after about four weeks. The pursuer specifically admits that at an examination on 2 September 1994 no evidence of any after effects (of the accident) was found apart from a scar over the forehead with associated tenderness, and also admits that there was no objective abnormality on examination. The pursuer further admits that he was the victim of a stabbing incident in 1994, although he does not specify the date, and that he had been exposed to fumes although again no specification was given. The pursuer's averments continue: "since the accident the pursuer has suffered from a personality change. He suffers constantly from headaches, sickness and mood swings. That personality change and the said symptoms are a consequence of the accident". The defenders criticised these averments in that they did not specify when the personality change took place or the alleged constant suffering from headaches, dizziness and mood swings. After he returned to work, he says, his said symptoms i.e. headaches, dizziness and mood swings, resulted in an "increasing level of depression". He says he continued to suffer from "feelings of depression" when he took up work elsewhere at a date unspecified. In July 1995 he says his mental state deteriorated to the extent that he was no longer able to continue working. However, by May 1996 he obtained employment with the defenders where he remained until November 1996. He says that his condition "did not improve" and he had been unable to work since then. In relation to his loss of earnings claim all that is said is "he has lost and accordingly (my emphasis) will continue to lose wages".

The defenders complained that they had been given no fair notice or proper specification of what the future was said to hold for the pursuer. There was no indication in any specific way of what the pursuer was suffering from nor of what work he could do, nor when or whether he could work. These consideration were argued to be sufficient to have, at least, a substantial part of the pursuer's claim dismissed. It was not made clear whether the pursuer was suffering from neurological or psychological damage and the defenders were left in the dark as to the basis of his claim.

I regarded there being sufficient force in the defenders' argument on these matters alone to constitute special cause for withholding the case from jury trial. I was referred to a number of authorities and to a conspectus of these as outlined in Mr Hajducki's monograph on civil jury trial. I did not consider that any of the illustrations there quoted were of material assistance. I follow the general proposition that what constitutes special cause is within the discretion of the Lord Ordinary namely that it requires to be special to the particular case and that the mode of enquiry, given that the pursuer does have a statutory right to jury trial is a matter for the Court to determine; Graham v Associated Electrical Industries Ltd 1968 S.L.T. 81.

The pursuer stressed that a psychological injury, or feelings of depression or an inevitable vagueness about future loss did not mean that a case was thereby unsuitable for jury trial. Counsel referred me to Gibson v MacAndrew Wormald & Co Ltd 1988 S.L.T. 562 but that case does not in my opinion bear much relation to the present. There liability was admitted and the pursuer's feelings of depression proceeded from the fact that his lungs had already suffered damage due to the inhalation of asbestos dust, his knowledge of the risk of developing a fatal disease and of existing damage. That, it respectfully seems to me, is a comparatively simple matter for a jury to determine. The second case was Currie v Strathclyde Regional Council Fire Brigade 1998 Rep.L.R. 41 where a pursuer claimed damages for the loss of the prospects of promotion for the prospect that she might have to retire substantially before retirement age and the prospect that she might have to take up alternative employment at a lower level of wages. It is plain from the brief report that what the pursuer was claiming was lump sum damages for the contingencies above quoted. Again that matter appears to me to be comparatively simple.

In the present case on the pleadings the jury would be given no guidance whatsoever about the nature of the pursuer's disability, about his prospects of employment and/or the level of wages that might be earned, or of when he might be expected to retire. The fact that he has been off work since November 1996 because of an alleged inability to work does not justify the assertion that "accordingly" he will continue to lose wages for some unspecified period.

Further, in relation to special cause as opposed to relevancy, there is an issue about the pursuer's condition being attributable to the accident which is not fully met by the pursuer's pleadings. The defenders make specific averment that any anxiety state that he suffers from was the result of an incident on 4 April 1995 where he thought his fellow worker had died in a constricted and fume-filled space. The defenders' averments on that matter are specific including averments about treatment which are met merely with a general denial. On the pursuer's pleadings there is nothing to indicate that the panic attacks he avers were attributable to the accident since the context of the pursuer's mention of panic attacks in his pleadings is at the very place of employment where the above mentioned incident took place. Such lack of candour tends to indicate that there are potential difficulties in the evidence which will require special care in evaluation.

I would add that I do not consider that any assistance in the matter of evaluating special cause is obtained by the observation that juries in criminal trials have various matters to assess which may be similar or more complex. There is no provision for special cause in relation to criminal trials however desirable that may seem in complex matters and what a jury is forced to do in a criminal trial may not be appropriate when considering the mode of enquiry in a civil matter.

I would also add that a matter which might perhaps fall within the criticism of being general as opposed to special to the cause, arises, in my view, as a result of the decision of the House of Lords in Wells v Wells [1998] 3 W.L.R. 329. Does that case virtually end jury trials? The assessment of the lump sum for future loss now requires firstly a multiplicand to be established and secondly a multiplier which takes into account not only, in the case of future loss of earnings, actuarial or medical expectation of life but also the length of that working life and the contingencies attached to that by way of redundancy, failing health and the like. This has to be done before an assessment is made of what the relevant rate of return on index-linked gilts is at the material time in order to arrive at some specific lump sum. It is this addition of the calculation required to be made about rate of return upon which the House of Lords it seems has insisted in Wells which would make the direction of a jury in relation to future loss of earnings very much more complicated now than it has been in the past. Some discussion took place at procedure roll as to whether this matter might be reported to the Inner House for some guidance as to whether and if so how an issue might be framed in such circumstances if such a case were appropriate to issues at all, but, on reflection, I do not consider that the present case raises sufficiently pointedly the questions to be determined. The averments in relation to future loss were so ambiguous that they have just survived the test of relevance. It will require to be considered on some suitable future occasion where otherwise the case would be suitable for a jury trial but for this element, whether a Report might be appropriate.

I accordingly find that special cause exists for withholding the case from jury trial in respect of the combination of the doubtful relevance of the pursuer's averments of his injuries, his medical condition, the sequelae of such injury whether it be neurological or psychological, the silence as to his future prospects and the problems of directing a jury in the light of the dicta in Wells. In addition the issues raised by the defenders' pleadings inadequately met by the pursuer's averments are a further special cause for determining that this case is more appropriately dealt with by way of a Proof before Answer than a jury trial. I accordingly allow a Proof before Answer leaving the pleas to the relevancy standing.