Scottish Court of Session Decisions

In this case the pursuer, who is now 72 years of age, sues the defender for damages for the very serious injuries she suffered in a road accident on 20 December 1996, when she was knocked down by a car driven by the defender on a street in Kirkcaldy. Liability to make reparation to the pursuer is admitted on record.

At Procedure Roll counsel for the defender argued in support of his second plea-in-law and contended that certain averments supporting the damages claim were of doubtful relevancy, that in any event the case was unsuitable for jury trial by reason of difficult mixed questions of fact and law, and that a proof before answer was the appropriate mode of inquiry. That was opposed by counsel for the pursuer, who sought issues.

Before considering the arguments advanced it is convenient to record that at the start of the hearing counsel for the pursuer moved to be allowed to make the following amendments to the closed record:

In response to the opening speech for the defender, counsel for the pursuer moved to be allowed to make the following further deletions from Condescendence 4:

These various amendments were not opposed on the defender's behalf.

In relation to the pursuer's surviving averments it was contended that the large amount of medical evidence required to deal with the multiple and extremely serious injuries sustained constituted special cause for disallowing issues. The averments relating to the claim for a wheelchair were unclear. The section 8 claim required the jury to make calculations applying different rates of pay at different periods of time for three persons whose supplies of services varied in length of time. There was no specification of what rate should apply to one aspect of the services provided by the pursuer's son Robert. The section 9 claim was unspecific. There is also confusion over the references to monoblock paving. The averments about the need to buy a Saab car were obscure. There was no clear specification of the alterations to the pursuer's kitchen. It was not apparent how hairdressing costs were necessitated in consequence of the accident. The need for engaging a paid companion was not clear. The averments about the pursuer's health were inconsistent. The dispute about life expectancy and the essential reference to actuarial tables constituted special cause for not allowing jury trial. The combination of these factors was important. Here there were relevancy problems, medical complications, and sequelae, and there were problems in the light of them all. Reference was made to Wells v Wells [1998] 3 W.L.R. 329, Dunn v Rigblast Energy Services Ltd 1999 S.L.T. 521, and Hadjucki: Civil Jury Trials § 2 - 18.

In reply, reference was made to McKeown v Arrol 1974 S.C. 97 and Shearer v Bevan's Exrs 1986 S.L.T. 226 as examples of cases with multiple claims being sent for jury trial. Judge or jury had to wield a broad axe in assessing all aspects of quantum: Stark v Ford (No 2) 1996 S.L.T. 1329. There was sufficient specification given to pass the test of relevancy. Wells did not make the case unsuitable for jury trial, and solved many problems. It establishes 3% as the discount rate applicable to the notional annuity consisting of index-linked government stocks, and to the annual increase on capital tied up in the purchase and conversion of the house. This case is at the lower end of the scale of difficulty that might be experienced. The pursuer was retired. Direction of the jury would be straightforward.

On the defender's behalf it was not disputed that the pursuer had a statutory right to jury trial, and that it was for the defender to show that cause special to this particular case existed for withholding it from a jury. The defender's argument that features which individually would not make a case unsuitable for jury trial may have that effect cumulatively was not disputed on behalf of the pursuer.

I was not persuaded by the defender's contention that the averments about the monoblock paving were of doubtful relevancy. I consider it is reasonably clear from the pleadings that such paving had already been laid at the front of the house at a cost of £1190, and the sum of £1950 was the anticipated cost of laying it at the rear to enable the pursuer to access her back garden. Likewise, I was not persuaded that the averments about the need for the provision of a Saab car were of doubtful relevancy. It is plain that the pursuer's pre-accident transportation requirements were satisfied by occasional use of the old car her son ran, but now she requires a specially adapted vehicle of the type averred, to avoid being housebound. Similarly, I think the complaint about the estimated cost of hairdressing is ill-founded. From the averments it may be inferred that before the accident the pursuer washed her own hair, and now she requires in-house assistance for this operation. Again, I do not consider that the averments about the cost of a carer companion are of doubtful relevancy. The pursuer's case is that this head of claim is based on the provision of respite care, so that her son may have time off.

However, in my opinion there is substance in the defender's other contentions, and I consider that for the following three reasons special cause has been shown to exist to justify withholding this case from jury trial.

Firstly, there are a number of heads of claim which are in my opinion of doubtful relevancy. I consider that it is necessary for a pursuer seeking jury trial to have made clearly relevant and specific averments on matters of materiality. In my view that requirement is not satisfied in this case in the following six respects.

(1) There is an apparent inconsistency between the averments about the pursuer being assessed as ineligible for the supply of a powered wheelchair by reason of her residual use of her right hand and arm, and the subsequent purchase of such an item. That may suggest the purchase was unjustified or unsuitable. (2) There is no specification given of the rate of remuneration claimed for the pursuer's son's oversight of structural alterations made to the pursuer's house, or his wage loss. (3) There is a lack of specific quantification of the section 9 claim. (4) More importantly, there is quite inadequate specification of the alterations requiring to be made to the pursuer's kitchen. (5) Equally importantly, the averments about the provision of aids and assistance for the pursuer do not entirely consist with the averments about her present level of capability. (6) The pursuer's averments about her life expectancy are confusing. On the one hand she admits this has been diminished, but it is also said that "it will be much what is to be expected for a woman of her actual age. Her life expectancy will be not less than that of a woman of 74 in normal health". In my opinion in these aspects of the pursuer's pleadings there are inherent inconsistencies and lack of clarity which could result in arguments as to the admissibility of evidence or even confusing evidence being led before a jury.

Secondly, I am also of the view that the following three complications exist which render this case unsuitable for jury trial.

(1) Fifteen separate injuries are averred as having been sustained by the pursuer, and that there are almost 1,000 pages of medical records. There would be a large amount of medical evidence relating to multiple and extremely serious injuries. It was apparent that there would be conflicting medical opinions on the pursuer's life expectancy. Per se that constitutes special cause for disallowing jury trial. (2) The section 8 claim is complicated. It is made in respect of three persons who have provided, and will provide necessary services. The average hourly commitment each week by each provider altered after the pursuer's discharge from hospital, and different average hourly rates of remuneration are claimed to be applicable before and after that date. The task of calculating past and estimating their future remuneration could be confusing for the jury. (3) I am also of the view that there would be serious difficulties for the jury in assessing future loss. It is apparent that there will be conflicting opinions expressed about the pursuer's life expectancy. That could involve complicated aspects of medical evidence. That conflict could also necessitate the leading of actuarial evidence. Use of the Ogden Tables is not straightforward. While the assessment of a lump sum for future costs to be incurred throughout the remainder of the pursuer's life may be a simpler task than fixing on a sum for future loss of earnings, it is not without its complexities in this particular case. All in all, a very considerable number of calculations would require to be made. The appropriate multiplicands and multipliers will have to be selected. Percentage factors will need to be applied, as appropriate. All this could make directing a jury difficult, and their task a very complicated exercise. The fact that the pursuer's counsel had to spend a considerable period of time in an endeavour to explain how simple the process of directing the jury would be simply underlined my view that the opposite was the case.

Thirdly, and in any event, I am of the opinion that the number and variety of different issues which may arise in this case and the doubtful relevancy of the averments in combination would create an additional likelihood of confusion arising in the minds of the jury.

Having regard to the pleadings as they now stand amended, I am satisfied for the reasons given above, that special cause exists justifying the conclusion that enquiry should not be by jury trial. I shall therefore sustain the defender's second plea-in-law, refuse issues, and allow a proof before answer.