Scottish Court of Session Decisions

[1] Liability was admitted in this action in which the pursuer sues for £100,000 for injuries sustained while in the course of her employment with the defender as a care assistant in a residential home for the elderly. The said accident was a back injury said to have been sustained on 30 January 1996. The pursuer sought a jury trial, the defenders a proof before answer on the question of damages.

[2] In terms of the Court of Session Act 1988 the Lord Ordinary may allow a proof instead of a jury trial if special cause is shown in an action of damages for personal injury. The law in relation to that matter is well known and need not be rehearsed further than stating that the cause has to be special to the case and that it is for the defender, on a review of the whole pleadings, to demonstrate that special cause exists. It was reaffirmed in Robertson v Smith 2000 S.L.T. 1012 that "the decision as to the appropriate mode of inquiry is clearly one in which the Lord Ordinary exercises a discretion".

[3] In the present case the pursuer, in response to averments made by the defender, admits that prior to her accident, she required anti-depressant medication, that she had a problem with alcohol abuse and that she had a pre-existing condition of spinal osteoarthritis. The defender in addition avers that within two years of the accident the pursuer would have been rendered unfit for work as a result of degeneration of the spinal disc and further, that she had since the accident undergone considerable life stresses related to home-sickness, the health of one child along with the social problems of another and that her refusal to take anti-depressant medication exacerbated these stresses.

[4] In that respect the pursuer avers that the depressive disorder from which she has been suffering post-accident was a new episode attributable to the accident and its consequences; that she developed a major depressive disorder because she was in pain and unable to work, and that she had given up drinking alcohol in 1992. According to the defender however, she had a period of alcohol abuse in March 1996 shortly after the accident. Her unfitness for work of any sort is attributed by the pursuer to her continuing depression but that depression, the pursuer avers, is the result of being in pain and unable to work.

[5] The pursuer claims solatium and loss of earnings past and future.

[6] It was submitted on behalf of the defender that the complexities of the medical picture and the many variable results arising from that complexity gave rise to special cause in the case which, when considered along with the requirement that the starting point for patrimonial loss is the Ogden Tables, made the matter too complicated and unsuitable for jury trial.

[7] In response the pursuer's counsel argued that medical complexity was not such a matter as should deprive the pursuer of jury trial and so far as the calculation of damages is concerned, the matter could be the subject of simple direction to the jury in the light of the Ogden Tables.

[8] I asked counsel how he envisaged a jury being directed in this case where the application of the appropriate tables would depend on how the jury would regard the several permutations arising from the evidence led by each side in relation to the pursuer's capacity for work. He envisaged that special questions might have to be put.

[9] Neither counsel had drawn the court's attention to Robertson v Smith 2000 S.L.T. 1012 and this case was put out for further submissions. Counsel for the pursuer submitted that that decision made it clear that the use of the Ogden Tables did not mean that cases involving future loss were suitable for jury trial. Counsel for the defender founded upon the last paragraph in the decision of the Inner House at 1014K where it was said,

This was not a case, said counsel, in which the first qualification noted above applied and there were substantive averments by the defenders to found detailed rebuttal of the case involving future loss.

[10] I should add that I was favoured with the citation of various cases wherein issues were either allowed or the case sent to proof by various Lords Ordinary. In my view none of these cases materially assist in the present question. If pressed to find an example nearest to the present, my view would be that the closest is that of Lord Cameron in Pietrya v Strathclyde Regional Council, 1998 S.L.T. 184.

[11] In the present case there are many interlocking questions raised by the pursuer's pre and post accident physical and mental condition about which would make directing of a jury complicated. What effect these interlocking conditions and events which occurred subsequent to and independent of the accident, such as the birth of a further child, had upon the pursuer given an admitted pre-existing, although possibly asymptomatic, back condition together with the effects of pain on a previously depressive person who might or might not have been further affected by the various stresses she underwent after the accident, is a matter upon which calm reflection upon many matters of detail requires to be given before an answer can be given. In this case that would be more appropriately undertaken by a judge.

[12] It is only once an answer can be given to those questions that the applicability of the Ogden Tables arises. It can readily be envisaged that a number of competing calculations depending upon the view taken of when, if ever the pursuer would return to work, whether that time of return would be the result of other factors than the result of the accident, whether she would have been unable to work and if so when, as a result of one or more of those other factors arising after or pre-existing the accident even had there been no accident, and whether those factors were factors which would require to be placed before the tribunal of fact before an award could be given. Accordingly in my opinion special cause exists in the present case whereby proof rather than jury trial is the appropriate mode of inquiry because of the special cause shown by the defender.

[13] Before departing from the case I should indicate that there was floated a suggestion that jury trial in civil matters was not a procedure which complied with Article 6 of the European Convention of Human Rights. Because of the format of jury trial, it was said, a defender would not be in a position to have a reasoned determination of the case brought against him. The matter was not, however, pursued with any vigour and, in any event, in the light of the view to which I have come about future procedure in this action, a reasoned decision will, in due course, be delivered by the judge who hears the case.