Scottish Court of Session Decisions

In this action the pursuer, who was 60 years of age at the time of his accident, sues the defenders as vicariously liable for alleged negligence on the part of an employee of theirs. The claim followed upon an accident in which the pursuer tripped over some wire netting in the defenders' premises. The pursuer was not employed by the defenders but was said to have worked permanently at the defenders' premises. He had apparently done so for some time, although the averments are unspecific on that matter. As a result of the accident he sustained injury to his right index finger and right shoulder. He returned to work some three and a half months after the accident but ceased to work some six months thereafter on 10 October 1996, alleging that the injury to his shoulder caused his inability to work.

At procedure roll the argument presented for the defenders was that the case was unsuitable for jury trial by reason of special cause, although the relevance of certain averments was also attacked. The first ground alleged in the Note of Argument was that difficulties could arise with the phrase "his employers having contracted his labour to the defenders" in Condescendence 2. After some deliberation counsel for the pursuer moved to amend the pleadings to delete that phrase. Similarly, he moved to add the word "about" before "foot" and to delete the words "or more" after "foot" on line 1 of page 6 and to substitute "his employers" for "the defenders" in line 9 on page 11. I allowed these amendments.

The second argument for the defenders centred on alleged lack of specification. The pursuer averred that his accident was caused by the fault and negligence on the part of the "said employee of the defenders". All that was said in relation to that was "one of their employees in the shop ... had left the mesh obstructing a walking route". Counsel for the defenders submitted that proper pleading involved either naming the employee or, if the name were not known to the pursuer, a statement to that effect and, possibly, some averments by means of which the pursuer would be able to establish by inference that the offending mesh had been left by one of the defenders' employees.

There was considerable force in the suggestion from defenders' counsel that this defect of specification was sufficiently material to warrant the exclusion of the averment from probation which would inevitably result in the dismissal of the action. Counsel for the pursuer's response was, and he asked me to note this, that "in the context of this case the pursuer has relevantly averred his case and if it is specific enough for proof before answer, it is specific enough for jury trial". The identity of the employee does not, he said, affect the question of relevancy and all that was required was to prove that he was an employee. Counsel for the pursuer was specifically asked by the court whether he could either name the employee in question or make an averment to the effect that the identity of the employee was not known to him. He declined to do so and further declined an opportunity to take time to consider his position after he had informed the court that he was unable to make the averment that the identity of the defenders' employee was unknown to the pursuer. He thus declined an opportunity properly to ascertain the position. As a result it appears to me that the pursuer had considerable difficulties with the requirement to provide the defenders with fair notice in the context of a jury trial. The pursuer, it is obvious, has tailored and curtailed his pleadings with a view to obtaining a jury trial. The corollary of that ambition, however, is that clear notice and specification must to be given. The opportunities in a jury trial for adjournment or amendment are very limited. While it may be sufficient in a case brought under the optional procedure to say that the accident was the fault of the defenders or their employees, if the choice is made to go for jury trial proper pleadings are required. The consequence of having shortened pleadings in optional procedure is that a jury trial is not allowed.

I consider the pursuer's averments as they stand to be of very doubtful relevancy and it is only with hesitation that I am prepared to allow these to go to inquiry. The necessity for naming persons, albeit in a different context, was emphasised by the Inner House in Boulting v Elias 1990 S.L.T. 596. However in that case it was plain that the pleader must have known the identity of the persons he refused to name. In the present case he may or may not. The court is simply not told. In these circumstances the proof requires to be before answer since considerable difficulty could arise if, at inquiry, the pursuer is in fact able to name the alleged delinquent. The matter however does not end there because at the inquiry difficult questions may arise in relation to the way in which the pursuer can attempt to prove that the alleged delinquent was in fact an employee of the defenders. It is a plain inference from the pursuer's pleadings that there were persons on the premises who had to do with material on the premises (the pursuer himself being one) who were not employees of the defenders. It may be that the pursuer will have to rely upon establishing by inference that the delinquent was the defenders' employee. That is an inference which it would be more appropriate for a judge to deal with than a jury.

The function of the court in relation to the mode of inquiry was described in Graham v Associated Electrical Industries 1968 S.L.T. 81, by the Lord President at page 82 as follows:

In the present case difficulties in my view will arise in relation to the proof of the employment of the alleged delinquent for the reasons above noted. In addition, if the pursuer does in fact know the identity of the employee then the matter of his own contribution, if any, to his accident may assume differing proportions. These are considerations which might have made the case unsuitable for jury trial even if the pursuer had been able to make the averments it was suggested he should make.

In addition, the defenders argued that difficult questions of medical evidence also made the case unsuitable for jury trial in that the pursuer had a pre-existing condition which may have been exacerbated. He also averred matters about depression and it was unclear whether that one or other or both of those matters affected his ability to work or otherwise.

The short time the pursuer had until retirement age obviates, I think, in this case the difficulties posed by the decision of the House of Lords in Wells v Wells 1988 3 W.L.R. 329 which desiderates a somewhat elaborate process for the calculation of future wage loss with, as a starting point instead of as a check, the "Ogden Tables". An article in 1998 Scots Law Times News at page 291 in which a junior counsel pleads for guidance from the Inner House, perhaps by way of a report, on this matter was published on the day of the debate.

So far as the matters of medical complexity were concerned I was referred, for illustrative purposes, to a decision of Temporary Judge Horsburgh in Meechan v McFarlane 1996 S.L.T. 208 and of Lord Cameron of Lochbroom in Pietryea v Strathclyde Regional Council 1988 S.L.T. 184. The latter case manifestly had more complexities than the present and, insofar as the former case was concerned, with due respect to the views of the judge, I would not have come to the same conclusion on the facts as they were stated in the report. I note that that case was the subject of a reclaiming motion but that the reclaiming motion did not proceed.

Accordingly, while I would not have considered the medical matters argued by themselves as sufficient to amount to special cause for withholding the case from jury trial, they are an additional factor to the factors which I have considered to be overwhelming in relation to the merits of the action. This case is unsuitable for jury trial and I accordingly allow a proof before answer.