OUTER HOUSE, COURT OF SESSION |
|
0/1104/5/1998 |
OPINION OF LORD McCLUSKEY in the cause MRS SUSAN JOHNSON or McALLISTER Pursuer; against GORDON NEIL MacKECHNIE Defender:
________________ |
Pursuer: Scott; Drummond Miller, W.S. (for Stirling & Gilmour, solicitors Alexandria)
Defender: A.C. Forsyth; Brodies, W.S.
3 November 2000
[1] This is an action in which Mrs McAllister sues Gordon Neil MacKechnie in respect of loss, injury and damage consequent upon the death of her husband in a road accident in August 1995. The pursuer sues both in her own right and as guardian of the pupil child, Robert McAllister, born 16 January 1990. The deceased was born on 27 December 1956. There are three pleas-in-law for the defender to which my attention was directed by Mr Forsyth in a very full and clear submission. The second plea-in-law is a general plea to the relevancy. Mr Forsyth did not attempt to argue that plea. He was content to say that if the case did not go to jury trial it would be appropriate to send it to proof before answer and that that plea should therefore be reserved in that event. However, I am not satisfied that that is a correct view. If no argument is presented as to the general relevancy at the procedure role, then it appears to be that the general plea should be repelled. I shall therefore repel the second plea-in-law. The third plea-in-law is directed at the averments of loss of support, which are said to be irrelevant et separatim lacking in specification. Although the plea is to the effect that the allegedly defective averments should not be admitted to probation, Mr Forsyth made it clear that his position was that the lack of specification rendered the pleadings of doubtful relevancy and in particular offended against the principle that the pursuer's pleadings should give fair notice of the case to be made. He invited the Court to reserve that plea. The consequence of that would inevitably be that the case would have to go to proof before answer in respect of the reservation of that plea. That in itself would mean that Issues could not be allowed. Mr Forsyth, however, recognised that if that plea itself fell to be repelled at this stage then the matter of the suitability of the case for jury trial would fall to be determined against various other considerations that he put before the Court, principally concerned with the many difficulties that he maintained the jury would require to face in assessing the damages for the pursuer and the child under the various different heads. I turned to consider these submissions.
[2] Mr Forsyth began by reminding the Court of the general principles that apply in cases of this kind and he did so under reference to the Court of Session Act 1988 Sections 9 and 11, and to the case of Morris v Drysdale 1992 S.L.T. 186. I discouraged Mr Forsyth from developing this argument in any great detail, because it appears to me to be fairly plain what principles are to be applied in relation to determining whether or not the case is suitable for jury trial. Counsel submitted that there were three main matters on which he wished to concentrate. First of all there was the relevancy or insufficiency of the pursuer's averments about the net earnings of the deceased. Secondly, he wanted to direct the Court's attention to the averments about the pursuer's own earnings and her own contribution to the joint household income. Thirdly, he wanted to draw attention to what he submitted were deficiencies in the averments relating to various benefits in kind.
[3] He pointed out that this was not a simple case in which the deceased had been in full time employment and was the sole breadwinner. In such a case, there need be no great problem in assessing what the factors fell to be taken into account in estimating the multiplicand which would require to go into the calculation of the loss of support flowing from the death. This, however, was a case in which the deceased had been a partner in a firm of solicitors, and it was evident at once that this was more difficult than the type of case involving his death of a wage earner. The first step that the pursuer would require to take in addressing the jury and inviting the jury to calculate loss of support would be to establish the loss of earnings. In this context, having regard to the fact that the deceased had been a partner in a firm, reference was made to the observations of the Lord President Emslie in Vaughan v Glasgow Greater Passenger Transport Executive 1984 S.C. 32, especially at pages 40-41. In the light of what the Lord President there had desiderated, Mr Forsyth drew attention to the fact that the pursuer's averments in Article 4 of the Condescendence did not give any details of what the firm's profits were. Nor was there any averment as to the deceased's percentage share in the firm's profits. It was notorious that profits could vary from year to year, and it was necessary, in a case of this kind, for the jury to have before them information about the years on either side of the year of death in order to enable them to make a sound computation of the multiplicand. In this connection, counsel referred me to the case of Sargent v The First Minister decided by Lord Clarke in August 2000. In short, the submission was that to state the position in relation to the one year preceding the death of the deceased was quite insufficient. In particular, it was necessary to obtain information as to what happened in the period after death; the relevance of such material was plainly established in a number of cases. Reference was made to the case of Cullen v Spreadbury unreported but decided by Lord Milligan on 7 January 1994. Counsel helpfully supplied the Court with copies of the unreported judgments and of certain other material. In Cullen v Spreadbury it had been seen as a deficiency in the pursuer's pleadings that, although she stated what she had received from the deceased, there was nothing whatsoever to indicate how the deceased had been able to pay that money over to her. The absence of any such information as to the source of the deceased's income was potentially severely prejudicial and would prevent a proper investigation of the likelihood that such payments could continue. The position there, Mr Forsyth contended, was not dissimilar to the present case where there was simply an averment of the amount of the drawings in one year, and the other necessary material was absent. His position was that it was for the pursuer to aver all the material necessary to enable the jury to make a proper assessment of the multiplicand. That had not been done. There was not enough averred to enable the jury to be properly directed upon this matter. Indeed, in the absence of all the necessary averments, there might be hidden difficulties which he was in no position to assess at the present time. Accordingly the averments in relation to loss of support were of doubtful relevancy and were insufficient to give fair notice. The result should be, therefore, that the third plea-in-law should be reserved and the case sent to proof before answer in respect of that. Next, Mr Forsyth drew attention to the averments about benefits in kind. Those averments appear on page 13 of the Record and relate to the provision of a car to the deceased and the benefit that he and his household had derived from using that ca
[4] The next branch of the argument was to take the Court through the various steps which it was said the jury would require to take in order to make a final assessment of damages. It would be necessary on the basis of such material as there was to try to calculate a multiplicand and to factor that multiplicand into the equation along with an appropriate multiplier derived perhaps from the application of the Ogden Tables. There could be difficulties in relation to the uncertainties as to the future of the firm of solicitors because restructuring the firms of solicitors was not unknown. However, Mr Forsyth frankly acknowledged that he had nothing to suggest at the present time to indicate that there was going to be an actual problem giving rise to such uncertainty. At some stage, the jury would require to make a deduction of a percentage from the contribution made by the deceased to the household or indeed from the joint income to reflect the cost of maintaining the deceased himself. This he acknowledged, was not any substantial difficulty but it was one factor that had to be taken into account. He had already drawn attention to the case of Morris v Drysdale 1992 S.L.T. 186 in which it was indicated that it was appropriate in deciding whether or not a case was suitable for jury trial to look at all the factors, and in particular, all those factors which were to be regarded as cumulatively adding to the difficulties to be faced by the jury. A stage would be reached to which the jury would require to make appropriate allowance for the income of the surviving spouse. There would also be a need to calculate the interest on loss of past support. There were special difficulties arising from the fact that the pursuer had an averments about services which the deceased was said to have provided in connection with the running of the household. There was also the issue of the apportionment of any lump sum of loss of support between the widow and the child. In this connection, reference was made to Lord Sutherland's decision in Brown v Ferguson 1990 S.L.T. 274 and in particular to the passage at page 276 opposite letter B.
[5] As I have indicated, Mr Scott, who appeared for the pursuer, sought and obtained leave to make the amendments which have been entered upon the Record, supplying the date of birth, the intended retiring age of the deceased and specifically averring in Article 4 of the Condescendence both that the drawings of the deceased were less than the share of the firm's profits to which he was entitled and that the drawings would have continued at the same level. This averment means that the pursuer is asking the jury to take as the multiplicand in relation to this particular matter, the sum of £18,600 net. That appears to me to be a fair way to put the pursuer's case. If it is necessary or desirable on behalf of the defender to learn more about the amount of the firm's profits whether in the year condescended upon or in other years on either side of that year, or indeed to know specifically the amount of the share of the firm's profits to which the deceased was entitled, the pleadings already there are perfectly adequate to allow the defender to seek a commission and diligence for the recovery of the necessary documentation including the partnership agreement and the partnership accounts. In the circumstances of this case, I consider that if the averments are sufficient for that purpose, they are sufficient the purpose of fair notice. The pursuer's case is restricted by the pleadings in the way indicated. Accordingly, I reject the criticism that the averments in this regard are lacking in specification in such a way as to deprive the defenders of fair notice of the case which is to be made. There is ample material there to enable the defenders to discover anything they want to know and if they discover material which they wish to present to the Court, they can always consider whether or not it is necessary to add to their own pleadings in this regard.
[6] Turning to the question of the alleged accumulation of difficulties, I have come to be of the view that for the most part, such tasks as the jury require to perform in order to discover what sums fall to be awarded, are not in a true sense cumulative. That is to say each task, once it is completed, is simply completed and the jury turn to the next task. It undoubtedly is the case that there are several separate tasks to be performed, but each one of them is well within the competence of a jury to perform, and I do not think that the mere fact that there are six or seven separate computations to made, renders a case of this kind unsuitable for a trial by jury. In relation to certain of the matters, for example the apportionment of any loss of support lump sum between the widow and the child, that is the kind of apportionment which a jury is entitled to make and is accustomed to make. Indeed, as we see from Lord Sutherland's Opinion in Brown v Ferguson supra, the proper approach in such a case is to take a broad view rather than to make minute calculations for the purposes of this apportionment.
[7] With the amendments that have been made, it appears to me to be clear that the pursuer is able to present to the Court all the material which is necessary in order to make the necessary calculations. In these circumstances I am not satisfied that the case suffers from any lack of specification rendering it irrelevant or of doubtful relevancy. I am also satisfied that the tasks which have to be performed are tasks which are well within the competence of a jury. I see no reason for holding that the case is unsuitable for jury trial. I shall therefore repel the first and third pleas-in-law in addition to the second plea-in-law that I have already indicated I would repel.
[8] I was invited to make an award of expenses in favour of the defender. Having regard to the terms of the note of argument and the result of the debate itself but taking into account the fact that an amendment which was entirely necessary was proposed at the Bar, I have come to be of the view that this is a case of divided success. Mr Scott invited the Court to find no expenses due to or by either party. That was not opposed on the basis, if the Court held that that this was a case of truly divided success, such a finding was the right one. I have accordingly awarded the expenses on that basis, no expenses due to or by either party.