Scottish Court of Session Decisions

In this case the first pursuer Brian Murray Robertson sues the defender for damages in respect of serious injuries sustained by him in a road accident on 19 December 1990, when he was knocked down by a motor vehicle said to have been driven by the defender. At the time of the accident the first pursuer was 12 years of age. He is now 20. The second pursuer is the father of the first pursuer. He sues the defender for damages in respect of psychological and physical illness which he avers was brought on by attending the locus of the first pursuer's accident shortly after it occurred. He also sues for patrimonial loss resulting from these illnesses.

The action came before me on the procedure roll where, on behalf of both pursuers, counsel moved for issues. This motion was opposed on behalf of the defender on the ground that the action at the instance of the second pursuer should be dismissed as irrelevant, or alternatively, that it was of such doubtful relevancy that the appropriate mode of enquiry was proof before answer. It was argued further that certain averments made on behalf of the first pursuer in relation to future loss of earnings and pension prospects raised questions which were so complex that the action was unsuitable for jury trial.

In seeking the dismissal of the action at the instance of the second pursuer Mr Gallacher for the defender argued that the second pursuer's plea-in-law to the effect that he was entitled to reparation, for loss, injury and damage suffered as a result of the fault and negligence of the defender, was unsupported by averments capable of inferring the existence of a duty of care owed by the defender the second pursuer. There was also an absence of averments setting out a breach of such a duty. The first pursuer had made averments of the duties of care owed to him by the defender, and of the failure of the defender to fulfil those duties, but there was a complete absence of corresponding averments on behalf of the second defender. In order to succeed in his action the second pursuer required to establish that the defender owed him a duty to take reasonable care. In order to do that, he required to aver and subsequently prove that there was a foreseeable risk of harm to him which should have been present in the mind of the defender at the time. Reference was made to Donoghue v Stevenson 1932 AC 562, per Lord Atkin at p.580. The second pursuer had failed to make any averment bringing himself within the reasonable contemplation of the defender as someone to whom there would have been a real risk of harm from the defender's actions. The risk of harm must be a real one, not a mere possibility which could never influence the mind of a reasonable man, see Overseas Tank Ship (UK) Limited v The Miller Steamship Co Pty 1967 AC 617per Lord Reid at 642G, Bourhill v Young 1943 AC 92 per Lord Thankerton at p.98. It was not yet the law that all parents who witnessed the locus of an accident in which a child of theirs was involved would necessarily have a relevant claim. The existence of a relevant claim depended on the facts of each case. In the absence of a condescendence of fault the defender was disabled from asserting the contrary. The defender had no indication of the evidence which might be led on behalf of the second pursuer. In these circumstances the second pursuer's case was irrelevant.

Mr Gallacher advanced an alternative argument to the effect that the second pursuer's case was intrinsically of doubtful relevance and its relevancy could only be assessed once the facts had been heard. Reference was made to Alcock v The Chief Constable of South Yorkshire 1992 1 AC 310, Page v Smith 1996 1 AC 155 and White v The Chief Constable of South Yorkshire 1999 1 All ER 1.

Mr Gallacher's attack on the first pursuer's case related to the following passage in Article 5 of Condescendence:

The argument was that in order to award damages in relation to these factors a sophisticated exercise in financial projection was necessary. An estimate would require to be made as to when the pursuer would have started employment, how long he would have remained in employment, what he would have earned, how the value of money would be affected and how a discount should be applied to take account of a lump sum payment. The normal practice would be to use a multiplier and have recourse to the Ogden Tables. If that approach were to be adopted there might require to be evidence from an actuary as to how the tables should be used. It was unreasonable to expect a jury to undertake the calculation of reasonable compensation for pension loss. The first pursuer's case was therefore unsuitable for jury trial.

In response Mr McEachran made three points. His first point was that there was a statutory right to a jury trial in terms of Section 9 of the Court of Session Act 1988. The second point was that the special cause for withholding a case from jury trial must be special to the particular case, and the third was that in road traffic cases there was no need for detailed pleadings. The inclusion of a condescendence of fault in relation to the second pursuer would be no more than the formal repetition of an established form of words. The same duty of care was incumbent on the defender in relation to both pursuers, namely, the duty to drive carefully. The recent cases cited by the defender supported the second pursuer's position. The requirements for liability summarised by Lord Keith in Alcock were clearly met in this case. These were (i) close family ties between the first and second pursuers; (ii) the proximity of the second pursuer to the accident; and (iii) a causal connection between the defender's negligence and the second pursuer's nervous shock. The facts averred fell well within the range of duty established by McLaughlin v O'Brien 1983 AC 410.

In relation to the attack on the first pursuer's pleadings, Mr McEachran argued that the quantification of loss of pension rights would be dealt with by taking a broad axe. Reference was made to Currie v Strathclyde Regional Council Fire Brigade 1999 S.L.T. 62.

In my view the attack on the relevancy of the second pursuer's case falls to be determined on the basis of the primary argument advanced on behalf of the defender. In actions of damages for personal injuries our system of pleadings requires the pursuer to identify and aver the duty or duties of care owed to him by the defender on which he relies, and which he alleges have been breached. The consequence of this requirement is that the defender has the opportunity to examine the averments of fault made against him and to attempt to persuade the Court, on the basis of the pleadings alone, that they are irrelevant, for example, on the ground that, as a matter of law, the duty alleged against him is not owed by him to the pursuer. If the defender fails so to persuade the Court, and the averments of fault pass the test of relevancy, the jury is then asked to determine whether the duty averred has been breached or not.

In this case the second pursuer has omitted to make any averments of the duties owed to him by the defender which he alleges have been breached. In the absence of such averments the defender is given no notice of the nature of the duty alleged against him and is therefore unable properly to assess the relevancy of the case or to assert the contrary. The jury cannot be directed as to the nature of the duty which the pursuer alleges to have been breached, and so are unable to decide whether it has been breached. A fundamental ingredient is therefore missing from the second pursuer's pleadings.

It was argued that the making of such averments was a mere formality and, in any event, that the averments made by the first pursuer of the duty incumbent upon the defender to drive carefully were equally applicable to the second pursuer. For the reasons which I have already set out I do not consider that, in our present system of pleadings, the making of averments of duty constitutes a mere formality. Furthermore, the speeches in the cases of Alcock v The Chief Constable of South Yorkshire 1992 1 AC 310 and McLoughlin v O'Brian [1983] 1 AC 410 make it clear that any duty owed to a secondary victim such as the second pursuer is not co-extensive with or identical to the duty owed to the primary victim such as the first pursuer. In these circumstances the defender is entitled to have clear notice of the precise nature and extent of the duty alleged against him by the second pursuer and of the nature of the breach of that duty. For these reasons I reject the argument advanced on behalf of the second pursuer. Counsel for the pursuers did not seek leave to amend but preferred to rest on the pleadings as they stood. In that situation I require to hold that the case made on behalf of the second pursuer is irrelevant and falls to be dismissed. While I have felt bound to come to this conclusion in the light of the position adopted on behalf of the second pursuer, it does not necessarily follow, having regard to the decision in the case of McLoughlin v O'Brian, that a factual basis does not exist for a relevant claim to be made on behalf of the second pursuer, if properly pled.

I now turn to the defender's argument that the first pursuer's case should be withheld from jury trial. The head of claim upon which this argument was based is in essence a claim for loss of earnings for the whole of the first pursuer's working life and of any pension that he might have received thereafter. His counsel submitted that his claim would require to be dealt with by the jury on a broad axe basis, and where an item of claim incapable of precise quantification a jury was as well qualified as a Judge to determine its amount, see Stark v Ford (No.2) 1996 S.L.T. 1329. It is averred that the first pursuer would have worked as a joiner or a driver and would have earned the average for full time males on adult rates. It seems to me that this is a claim which is open to quantification in a comparatively straightforward way and lacks many of the alternatives and imponderables which often bedevil claims for loss of earnings. I do not therefore consider that a jury armed with the appropriate evidence and properly directed should have undue difficulty in arriving at an appropriate figure for loss of earnings for a normal working life and in assessing whether a pension would be likely to be paid and at what level. I consider that a jury is as well able as a Judge to carry out that task. In these circumstances, in relation to the first pursuer's case, I shall allow issues.