Scottish Court of Session Decisions

[1] In this case the pursuer seeks damages from the defenders in respect of injuries which he suffered in an accident in the course of his employment with the defenders. The case came out for debate on the defenders' first plea-in-law, added by amendment, which is to the effect that, as special cause exists, enquiry should be by way of proof rather than jury trial. This plea is taken against the background of section 11 of the Court of Session Act 1988 which provides that claims for personal injury shall be tried by a jury, but that a proof before answer may be allowed on special cause shown. In the present case, counsel for the defenders made no submissions concerning the merits of the action, but argued that in several respects the pursuer's claim for damages was either insufficiently specific or overly complex to be safely entrusted to a jury.

[2] The defenders' first criticism concerned the pursuer's averments of pension loss. At page 15C-D of the Closed Record the pursuer avers in effect that throughout his employment with the defenders he contributed to their pension fund, but that as a result of the early termination of his employment with them he has suffered a pension loss of £11,640 based on his continuing to work until age 65. The defenders' counsel argued that these averments were of doubtful relevance and lacked specification; there was no indication of how this figure had been arrived at, nor were there any suggestions as to what the pursuer's contributions had been, and there was no specification as to whether he had any ill-health pension. His entitlement might be affected by the decision in Cantwell v The Criminal Injuries Compensation Board 2000 SLT 956. Further the quantification of the pension claim was extremely complex and might require actuarial evidence and the use of tables that a jury would find difficult to understand. Reference was made to Potts v McNulty 2000 SLT 1269.

[3] In response, counsel for the pursuer maintained that the averments were sufficient to give notice of the claim for loss of pension entitlement. Evidence of this type was commonly led by reference to actuarial expertise and to the Ogden tables. In the present case the defenders had offered no competing basis on which any pension entitlement claim should be calculated; the defenders merely said that the sum sued for was excessive (see Robertson v Smith 2000 SLT 1012).

[4] I do not consider that the defenders' submissions in this matter are well founded. The pursuer has made straightforward averments that he has contributed to the defenders' pension scheme and that he will make a specific loss because he is deprived of the opportunity of contributing to that scheme until his anticipated retirement at age 65. I cannot see what further specification should be offered, particularly as the detail of the pursuer's position in this matter in the defenders' pension scheme is presumably well within the defenders' knowledge. Further, I do not think that it is right that the defenders can simply point to potential complexities in a particular claim that may or may not arise without any suggestion in their averments as to why matters might be difficult and thus hope to avoid a trial by jury. Accordingly I can see nothing complex or inspecific in the pursuer's claim for pension loss on the averments and therefore I cannot find any reason for excluding this point of the claim from trial by jury.

[5] The defenders' second submission concerned specification of the pursuer's claim for services. Counsel's submission was in two parts: firstly he maintained that the averments were contradictory, and secondly, the averments were in any event complex insofar as they related to future care and would be unsuitable for a jury to consider. In the averments of loss in Condescendence 9 it is undoubtedly the case that there are some apparent contradictions in the figures claimed and in the calculations of loss in support of those figures. For example at page 15E of the Closed Record the pursuer avers that on his return from hospital he required about three hours assistance a day from his wife. At the top of page 17 he appears to claim only two and a quarter hours per day from July 1995 to December 1995. Again at page 15E to 16E the pursuer asserts that by January 1996 he required his wife to assist him for one and a half hours per day, but at page 17A appears to claim only one and a quarter hours per day at that time. There are other instances of these inconsistencies. Further, counsel argued that the averments of care described at page 15 and those at page 17B appear to be contradictory and competing. Finally in this respect counsel for the defenders argued that the calculation of the multiplier in respect of this head of claim would complex because of the age of the pursuer when considered along with the age of his wife. However, I find myself in agreement with the submissions of the pursuer's counsel in these matters. The contradictions are undoubtedly present but they are of marginal significance. At the worst the pursuer will be restricted to the lower of any contradictory figures, and I cannot see that the various discrepancies could cause any conceivable prejudice to the defender as they provide adequate notice of what the pursuer's case in this respect will be. Further, a plain reading of the various averments of the service claims indicate that there are separate sorts of care which the pursuer will require, namely that which is to be provided by his wife and that which is to be provided by other sources, and I cannot see that these two generic claims are either contradictory or competing. Finally, the ages of the pursuer and his wife present no particular problem in calculating the multiplier for such heads of claim. It was suggested that there was grounds for adjusting the Ogden tables which are used for the calculations in such matters, but I was not persuaded that this was so and there are in any event no averments on which such a contrary conclusion could properly be based (see Robertson v Scott supra).

[6] The third ground in which it was said that the case was unsuitable for trial by jury was that different multipliers would have to be applied by the jury to several heads of claim including the pension loss claim, the future care costs from two different sources (the pursuer's wife and outside agencies), and the claim for additional current expenditure. Reference was made to Potts v McNulty (supra), where it was said that where different multipliers would have to be applied to the claims made by several pursuers, matters might be unsuitable for a jury to consider. Again I have to disagree with these submissions. There are various multipliers to be found in the present case, but all relate essentially to the pursuer himself and while there will be several such calculations to be made, they will relate to the personal circumstances of one individual. In Potts v McNulty (supra), there were four pursuers of different ages who each had a variety of separate and at times interconnected claims which required to be calculated, and as is noted in the report, there was not an effective response made to that argument at debate. I therefore do not feel bound to follow the decision in that case, and I consider that in the present case it would be well within the jury's comprehension and competence to calculate the multipliers involved.

[7] The fourth ground on which the defenders' counsel maintained that the case was unsuitable for trial by jury related to the pursuer's averments that he would benefit from advice from a care manager (see page 16C of the Closed Record). There was no specification of what would be necessary in respect of that provision of care nor what it consisted of. Again, however, I agreed with counsel for the pursuer who submitted that what was averred provided quite sufficient notice to the defender of what was required, and was similar to the claims based on recommendations for occupational therapy and clinical psychological assessment and treatment (p. 16C-D). The cost of this is also adequately specified (page 17C-D). I therefore cannot see that this claim is in any way unsatisfactory in its specification, or that it can be used as a reason for withholding the case from trial by jury.

[8] Finally, the defender argued that the pursuer's claim at page 16E of the Closed Record that he would have to travel by taxi rather than public transport lacked specification and quantification. However at page 17E the pursuer avers that his transport costs have increased by £13 per week. I consider again therefore that there is ample description of both the head of claim and the consequential loss to the pursuer.

[9] In these circumstances, despite the careful submission of defenders' counsel, I could find no reason for withholding the pursuer's right to a trial by jury of his claim.