Scottish Court of Session Decisions

[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary in which he repelled certain preliminary pleas tabled by the defender and allowed issues in respect of the action at the instance of the first pursuer. By the same interlocutor he dismissed the action at the instance of the second pursuer and no reclaiming motion has been marked in relation to that matter. Accordingly the action now proceeds solely at the instance of the first pursuer.

[2] The decision as to the appropriate mode of inquiry is clearly one in which the Lord Ordinary exercises a discretion and ordinarily, therefore, this court would be reluctant to interfere with that decision. In the present case, however, the substantive argument before us, as so often happens, was in a shape very different from that presented to the Lord Ordinary - this being due, not least, to amendments being allowed at the bar to both parties' pleadings prior to the commencement of the hearing. In the result, the single substantive question debated before us became very clearly focused as being whether, in light of the now established practice of using the "Ogden Tables" as the starting point for the assessment of long term future loss, the action was, or was not, suitable for jury trial. While this was one of several issues raised before the Lord Ordinary we were informed that, however regrettable, no very detailed argument had been presented to him on that matter. In particular, the Tables themselves (including the accompanying text) had not been looked at, let alone considered in any detail. In light of all the circumstances, including the amendments to the pleadings, a remit back to the Lord Ordinary was clearly a possibility. However, not without some hesitation, we have decided to consider on its merits the much more detailed argument which, in the event, was presented to us. In doing so we have been moved, not least, by the general importance of the question as now presented.

[3] While, as we have said, there is here a single question, counsel for the defender and reclaimer recognised that it had to be looked at both from the point of view of relevancy or specification in averment and also that of complexity, as such. However, it is convenient in what follows to cover both aspects simultaneously.

[4] Turning then to the pleadings, we find that the pursuer seeks damages arising out of a road accident in which, when only 12 years old, he became permanently paralysed from the upper chest downwards. Needless to say, there are many heads of claim but the only one founded on by counsel for the defender as giving rise to difficulty was the claim for future loss of earnings which, as amended at the hearing, is averred in the following terms:-

As to these averments Mr. McEachran, Q.C., for the pursuer and respondent, made it absolutely clear that the pursuer's case now was, quite simply, that he would at no time be in a position to earn wages or a salary of any sort. It was on this basis - and on this basis only - that the court was invited to consider the single question referred to above. For the sake of completeness the defender's position on Record is that the nature, extent and consequences of the loss, injury and damage suffered by the pursuer are "not known and not admitted", and this response is followed by the customary averment that the sum sued for is "excessive".

[5] By the end of the hearing much was common ground between the parties. In particular, it seemed to be accepted by counsel for the reclaimer that, but for the change in law and practice brought about by the decision of the House of Lords in Wells v. Wells [1999] 1 AC 345, the pursuer's averments were such as would have entitled him to issues. However, the contention was that now that future loss of earnings had to be quantified with greater precision in accordance with the Ogden Tables, greater precision in averment was necessary before this exercise could be undertaken before a jury. Alternatively, in the absence of such precision, difficult questions of mixed fact and law would arise such as made the action unsuitable for jury trial. In that connection, since it was now accepted law and practice that in a case such as the present the starting point for quantification was, indeed, the Ogden Tables, it was agreed by both counsel that any jury would have to be directed in accordance with the guidance to be obtained from these tables including, of course, their accompanying text.

[6] At para. 41 of the Explanatory Notes to the Tables (3rd ed.) there is set out a convenient summary of the seven steps which may have to be taken in relation to the use of the Tables. Two of these relate to the effect of taxation (which could, indeed, be a complicating factor) but counsel for the reclaimer very fairly advised us that he did not understand these to present any difficulty in the present case. For the rest, the only matters which counsel for the reclaimer was able to identify as requiring to be addressed in order to apply the Tables were as follows:-

[7] As to the first and second of the matters just enumerated we are of opinion that in a case such as the present it would be unrealistic to expect a pursuer to tie himself down to exact dates of commencement and termination of employment respectively. Much could obviously depend on an assessment of the evidence relating to these matters and we see no serious difficulty in the presiding judge (perhaps with the assistance of counsel) giving to the jury different figures derived from the Tables relative to the various hypotheses urged on them by counsel. In this connection, the pursuer is now 22 years of age and it is accordingly likely that, but for the accident, he would already have commenced employment of some sort. So far as retirement is concerned, full tables are provided for retirement at ages 60 and 65 respectively but, even for different ages, these tables can be applied (subject to correction) as set out in paras. 16 and 17 of the explanatory test. The last "matter", which in reality involves a number of different considerations, has given us rather more difficulty. However, in the end, we have reached the view that the complexities are more apparent than real. What we have termed the "standard" adjustments - namely those suggested in the explanatory text by way of a "ready reckoner" - are in fact relatively minor in effect and, again, in our view, could be dealt with by the presiding judge, if necessary with the assistance of counsel. The position might be different, of course, if one side or the other were proposing a departure from the Tables, including these standard adjustments. In that event, however, we would expect there to be substantive averments heralding such a departure, and there are no such averments in the present case.

[8] In the result, we are satisfied that, so far as the instant case is concerned, there is neither deficiency in averment on the part of the pursuer nor undue complexity in relation to the evidence. We accordingly repel the defender's 8th plea-in-law, as added by amendment, and quoad ultra adhere to the Lord Ordinary's interlocutor and refuse the reclaiming motion.

[9] It only remains for us to make clear, if it has not already been made clear, that the foregoing decision proceeds on the bases, first, that the pursuer's case is that he will at no time be able to undertake any form of remunerative employment; second, that the defender has no substantive averments on which to found any detailed rebuttal of that case; third, that this is not a case involving any tax complications; and, fourth, that neither party has made any substantive averments such as would involve a departure from the Ogden Tables, including what we have termed the "standard" adjustment or adjustments for contingencies. We wish to reserve our opinion as to what might be the position in any different set of circumstances.