Scottish Court of Session Decisions

This action concerns a road traffic accident. The facts of the accident themselves are uncomplicated and the pursuer would be entitled to jury trial of her claim as a statutory right unless the defender could demonstrate that special cause existed in relation to the particular action.

Miss Crawford, for the defender, in a clear and concise argument, said that special cause existed in respect of complicated medical questions and in relation to the pursuer's averments about future wage loss. The pursuer was allowed to amend her pleadings in several respects at various times of the debate, but ultimately the averments to which exception continued to be taken by Miss Crawford were, firstly, in relation to the medical issues. These were of injuries to the leg and knee resulting in a substantial state of incapacity which the pursuer averred were the results of the accident. The defender had made averments about pre-existing conditions in the neck and also pre-existing arthritis in the knee, each of which could have had significant effects on the pursuer's prospects of continuing in her employment. By way of illustration she cited Meehan v McFarlane 1996 S.L.T. 208.

In response, the pursuer's counsel cited various cases in which a contrary view had been taken such as Irvine v Balmoral Hotel (Edinburgh) Ltd 1999 Rep.L.R. 41 and the view expressed by Lord Coulsfield in Thomson v McAlear 1996 Rep.L.R. 128 in which he said "medical complexity was not necessarily a reason not to send the case to a jury".

As I understood the position adopted by Miss Crawford, she regarded the medical complexity as being a factor which in the present case was in addition to the defect hereafter referred to in the averments of future loss.

I did not regard the injuries and their sequelae in the present case to be in the least out of the ordinary and have no difficulty in concluding that a jury properly directed would readily be able to come to an appropriate decision on the matter. The questions are of fact, the jury is the tribunal of fact and there is nothing in the averments in the present case to elevate it into a matter of special complexity or difficulty.

The defender's major point, however, was that the averments of future loss were unclear and productive of much difficulty.

As amended, at the bar, these averments read:

As originally pled there was considerable force in the defender's contention of lack of specification. There were no averments about the nature and extent of her duties and responsibilities as an office manager or why it was necessary to move to Material Purchase Supervisor, nor was it clear when she would have gained promotion or what the duties and responsibilities of the promoted grade were.

By way of illustration Miss Crawford cited Dunn v Rigblast Services 1999 S.L.T. 531, Currie v Strathclyde Regional Council 1999 S.L.T. 62, Johnston v Clark 1997 S.L.T. 923, and O'Malley v Multiplex 1997 S.L.T. 362. She made further reference to the second ground for refusing a jury trial in Meehan v McFarlane. There were, she said, many complexities and possible permutations of loss and these would be sufficiently complex to make the case unsuitable for jury trial.

In response, counsel for the pursuer referred to Stark v Ford 1995 S.L.T. 69 in the Outer House and as it was affirmed by the Inner House at 1996 S.L.T. 1329. Counsel referred to those cases as reported in Reparation Law Reports, a practice which should not in my view be adopted when there is either an S.L.T. or Session Cases version.

As now amended I consider that the pursuer's pleadings give in the first place fair notice of the case attempted to be made, and that some of those matters are and remain unspecific but this is common to many cases and claims of the type proposed. There is no possibility of the double-counting which was suggested. A jury could give either a future wage loss on a multiplier or a lump sum, either would be appropriate, but both could not be given together. This is a matter for clear direction by the presiding judge and should, in my view, cause no difficulty.

Accordingly I regard the case as now pled as not evidencing the necessary special cause for its being withheld from the jury and I shall allow issues.