Scottish Court of Session Decisions

[1] In this case the pursuer seeks damages in respect of injuries he suffered in an accident while working for the defenders on an oil rig in the North Sea. The accident happened on 22 April 1997 and liability for the accident is admitted. There are no averments of contributory negligence. The pursuer avers that he suffered various physical and psychological injuries as a result of the incident, and that consequently his future wage earning ability will be severely limited. He also has a claim for past wage loss and a small claim for services. In these circumstances the defenders at debate sought to argue their first plea-in-law (introduced at that stage by amendment), which is to the effect that special cause exists for withholding the cause from trial by jury.

[2] Counsel for the defenders submitted that there were two bases for his argument that the case would be more suitable for proof. Firstly, he argued that the operation of establishing the factual basis of the pursuer's claim for damages would in itself be complicated, and secondly that once the facts had been established there would be further difficulties for a jury in assessing what the proper measure of those damages should be, given the number of permutations that might be possible in the pursuer's future working life. In particular, counsel for the defenders pointed to the pursuer's principal claim for loss of wages, which was based (at p.12C-D of the Closed Record) on a detailed description of the promoted posts within the offshore oil industry which the pursuer anticipates he would take up until retirement at the age of 65. The defenders' submission was that this was highly speculative; the pursuer had only spent just over a year on the oil rigs, and his future career there could not be guaranteed, particularly having regard to the uncertain future of the industry in the North Sea. Further the pursuer was not seen by his employers, for various reasons, suitable for the promotions which he now claims. It was averred by the pursuer that he would not be able to return to full-time heavy work, but he was perhaps going to be able to do some part-time light work. He also now claims in his pleadings that he can only work because of his sympathetic employer. The defenders further argued that there was also an issue about whether the pursuer should have returned to work before he did. There was therefore a number of issues concerning the pursuer's future wage loss that would require to be resolved. Finally, in this respect, there were a number of complex medical issues particularly relating to the pursuer's psychological condition which would have to be considered. In all these circumstances, the defenders' counsel concluded that there was a number of questions of fact which a jury could find confusing.

[3] Further, defenders' counsel maintained that the assessment of damages based on these facts was complicated. A number of different multipliers might have to be adopted depending upon the view which the jury might reach on the pursuer's future career. The jury would have to consider a variety of possible applications of the Ogden Tables, which a judge might find difficult to direct upon, and there was a real risk that the jury would thereby become confused. As juries do not require to give their reasons, counsel argued that the parties would not know whether or not an injustice had occurred in the course of their deliberations and conclusions. Accordingly, special cause existed for withholding the case from trial by jury.

[4] In response, pursuer's counsel accepted that there were difficulties in the case but that these difficulties were well within a jury's competence to decide. He also submitted that many of the issues which had precluded the pursuer's right to a jury trial in the past were not present here and that there were a number of features which narrowed the decision which a jury would have to make. There was, in the present case, only a single pursuer; liability was admitted and there was no question of contributory negligence; there was no question of a pre-existing medical condition that might confuse the question of damages; there were no tricky questions of causation, no pension loss, no provisional damages, no question of service claims under section 9 of the Administration of Justice (Scotland) Act 1982, and only a modest and restricted claim under section 8; and no unusual features about the claims as a whole. The only components of the claim were solatium, past wage loss, future wage loss and a three month service claim under section 8 of the Act. The facts were to some extent difficult and speculative but not to such an extent that they could not be reasonably and properly comprehended by a jury. Simply labelling a case as difficult did not mean it was unsuitable for jury trial (Currie v Strathclyde Regional Council Fire Brigade 1999 S.L.T. 62). Any complaints of lack of specification in the pleadings would cause the same problems for a judge as they would for a jury (Currie v Strathclyde Regional Council Fire Brigade (supra); Stark v Ford (No.2) 1996 S.L.T. 1329.) In assessing such matters of quantification, counsel submitted that juries were even better suited and more appropriate for such an exercise than a judge. On the question of assessment of damages, all the relevant material, with the exception of the future wage rates, was on record in sufficient detail. The application of the Ogden Tables in themselves did not mean that the case must go to proof (Robertson v Smith 2000 S.L.T. 1012). There may be an issue in the case about the future of the oil industry in the North Sea, but this was simply a straightforward factual matter which a jury was perfectly able to decide about. In conclusion, pursuer's counsel asked that the issues be approved.

[5] I concluded that in the circumstances of this case special cause did not exist for withholding the action from trial by jury. The pursuer's claim for damages is essentially straightforward. Criticism was offered by the defenders' counsel of the extensive degree of specification provided by the pursuer in support of his claim (no doubt similar complaints might have been tendered if there had been insufficient specification in this area), but that in my view cannot justify the conclusion that the claim was therefore unsuitably speculative for the jury to consider. The pursuer, it is true, was only 21 when the accident happened, but that cannot mean that his comparatively short working life should prevent him from anticipating that he would work until normal retiring age, with the normal advancements that his chosen career might carry. In essence, the defenders claim that the matter is unsuitable for jury trial is only concerned with the pursuer's claim for future wage loss. It is in my view a particularly appropriate remit for a jury to decide what the normal work prospects might be for a person such as the pursuer, and indeed it could be argued that such decisions are less suitable for enquiry before a judge. A jury is also in a perfectly sound position to judge on future prospects for employment generally and in my view are quite capable of deciding the long-term prospects for the oil industry in the North Sea. These are matters on which judges cannot be said to have a exclusive understanding. The other parts of the assessment of the pursuer's case - solatium, past wage loss, and a small service claim - are wholly unremarkable.

[6] As far as the assessment of damages are concerned, it is accepted that these claims can rarely be straightforward. The application of the Ogden Tables, and the actuarial evidence that may accompany such statistics, are potentially complex. However, the question of the application of the Ogden Tables in themselves has to be considered against the background of the other facts and circumstances in the case, and here these are all reasonably straightforward. There is only one pursuer, there is no question of contributory negligence or a pre-existing medical condition, there are no complex service claims, no pension or tax complications, and no elements that would interfere with a more less straightforward application of the Tables. Accordingly, I am of the view that any difficulties in the present case fall significantly short of the standard required to withhold the case from trial by jury. I shall therefore repel the first and second preliminary pleas for the defenders, and allow issues. I have reserved the question of expenses.