Scottish Court of Session Decisions

19 December 2001

[1] The pursuer seeks damages from the defenders for injuries he claims to have received following an accident at work on 16 August 1993. The accident is said to have involved a fall from a considerable height. For present purposes liability is not an issue. The pursuer avers that his injuries included a compound depressed fracture of the right head frontal bone resulting in brain damage. He is said to continue to suffer from severe post-concussional syndrome. The pursuer also describes a number of general consequences of his accident including mood swings, anxiety, depression, personality change, impaired concentration and memory, and an inability to manage his own affairs. He claims as part of his damages a loss of pension rights and the cost of his parents' caring and supervision.

[2] In these circumstances the case came out for debate at the instance of the defenders who argued their third plea in law to the effect that as the pursuer's averments were of doubtful relevancy and insufficient specification and that there were now complex issues of loss, special cause existed for refusing issues. The defenders' counsel accepted that in terms of Sections 9 and 11 of the Court of Session Act 1988 the pursuer has a right to a jury trial unless special cause is found to refuse issues. In the present case counsel maintained however that the pursuer's averments in respect of his claim for loss, injury and damage were unclear, imprecise and insufficiently specific, and as a result there was a real risk that a jury might misunderstand the assessment and quantification of damages and a miscarriage of justice would follow. Pleadings, it was said, should be clearly focused; reference was made to Boyle v Glasgow Corporation 1949 S.C. 254 at 261 and Moore v Stephen & Sons Limited 1954 S.C. 331 at 334 and 335. The defenders' submissions on this basis were directed against the pursuer's claim for solatium, wage loss, pension loss and services.

[3] Defender's counsel first turned her attention to the question of solatium. At page 9A of the closed record the pursuer avers that he continues to suffer from severe post-concussional syndrome. Counsel submitted that it was unclear whether this condition was the same as the brain damage described at page 8C; this, it was said, was important because different symptoms may result from the separate conditions. It was therefore unclear which of the list of symptoms suffered by the pursuer related to his brain damage and which related to his post-concussional syndrome. While this is a possible construction of the averments on record, I am satisfied that it had no substance as far as the question of issues was concerned. The pursuer is simply narrating the list of consequences he has suffered as a result of the accident. As counsel for the pursuer argued, the purpose of pleadings is to give notice of what the case is to be. I have no doubt that these are matters which can be described properly and fully in evidence before a jury in a way that is easily comprehensible. What juries are required to assess are the nature of any injuries or conditions which the pursuer has suffered as a result of his accident.

[4] The defender's counsel also criticised the averment at page 9A of the closed record that the pursuer now has a risk of developing post-traumatic epilepsy. It was submitted that the nature, extent and possible consequences of this risk were left unclear. Again I was unable to find much significance in the submission. What the pursuer has done here is to give notice of a potential difficulty that may arise as a result of his accident. He can do little more. This is part of a varied list of symptoms all of which will contribute to a total picture which the court must consider. I could find nothing in all of this which makes the case unsuitable to be tried by a jury. The defenders are fully able to explore the significance of this averment, if they wish. Counsel further argued that there appeared to be a duplication of claims in the pleadings. For example it was unclear whether moodiness, which is described at page 9P, and mood swings as described at page 9C are the same thing. I would have thought this was sufficiently clear, and in any event not a matter of such significance as would justify the withholding of issues. At page 14B, in response to the defenders' averments, the pursuer claims that he is unable to work because of post-concussional symptoms of headaches, irritability and mood disturbance. It was said that these claims are not made in respect of his claim for solatium, nor was it indicated whether they are permanent or will improve. Again I find it difficult to understand why this submission should justify the withholding of issues. Clearly part of the pursuer's claim for solatium and the reasons for his requiring support may well be similar. No submissions were made which would identify a particular difficulty which they jury might encounter in this respect. Pursuer's counsel accepted that there was no specific averment about whether the pursuer's conditions would improve, but maintained that the important issue was to give notice of the pursuer's injuries, and the consequences of these. I agree with that. I can therefore find nothing in the defenders' submissions on this matter which would justify removing the pursuer's statutory right to a jury trial.

[5] The second complaint made by the defenders in respect of solatium was that it would be too complex for the jury. Many medical experts would be required; neurosurgeons, neurologists, neuropsychologists, psychologists and psychiatrists would presumably all be called before the jury and this meant that the issues could be very complex. At page 17 of the closed record the defenders aver that tests on the pursuer's cognitive and memory abilities have unexpectedly shown inconsistent results. A jury would not be able to understand these matters. Reference was made to Meechan v McFarlane 1996 S.L.T. 208 and Pietryea v Strathclyde Council 1998 S.L.T. 184. I rejected this submission. The mere fact that a number of surgeons have to give evidence does not necessarily mean that the condition or symptoms they describe will be difficult or complex. The fact that different results have been produced from a series of tests is exactly the kind of issue which juries are expected to assess in many cases. No specification was given of the particular areas in which juries might find difficulty in comprehending what was being said to them and there is no necessary connection between the number of witnesses that would be called and the assumption that a jury would not be able to understand what they said. I therefore concluded that on this basis it could not be said that a jury will find it impossible to determine the true nature and extent of the pursuer's injuries and the cause or causes of them.

[6] Defender's counsel then argued that a jury would have difficulty in assessing what injuries or symptoms flowed from the accident, and to what extent these would affect his ability to earn a living. The pursuer's averments, it was said, were inspecific. At page 9C-D it is said that he has suffered a significant reduction in his earning capacity and that he is only able to do part-time work. There is a further explanation of this at page 12E where he describes how he returned to part-time work with the defenders but (at 13D) he had to give this up because it was detrimental to his health. The defenders' complaint was that they were not told why, and in particular whether this was due to post-concussional symptoms or brain damage. At page 14B his inability to work is said to be due to severe post-concussional symptoms of headaches, irritability and mood disturbance; this, it was said, was different from what was said at page 13C-E about his difficulties in coping with part-time work. At page 14C the pursuer avers that the list of jobs given by the defenders as work that he could do was absurd, but no explanation of why that was so was given. Again I found nothing in these submissions which would justify the removal of this case from a jury. Taken in the context, I am quite satisfied that sufficient reasons are averred as to why the pursuer was unable to continue with his part-time work with the defenders. He has also made it sufficiently clear that his inability to work is due to severe post-concussional symptoms and I can find no significance in the fact that the reasons given for his present inability to work is in any way marginally different from the reasons why he gave up part-time work with the defenders. Nor can I understand the complaint that the pursuer's claim that the list of jobs suggested by the defenders is absurd; it seems reasonably clear that all the pursuer is doing at that part of his pleadings is responding in terms suggested by his own expert witness to a claim by the defenders that he can do other work.

[7] Counsel for the defenders then criticised the pursuer's averments of wage loss at page 15B-D. His wage is said to have been set to double during the remainder of his apprenticeship and further he claims that he would have done work at an annual salary of £15,000 after completing his training. Counsel argued that there was no reason given for the increase in his income levels while being apprenticed to the defenders nor why he should be able to earn £15,000 when he completed his training, and that therefore these averments lacked specification. I did not accept this submission. The pursuer is simply offering to prove that he would have got an increased wage during the latter years of his apprenticeship and that he would earn a certain level of income once he had qualified. There appears to be nothing difficult or inspecific about these averments. Then a criticism was made of the averments at page 15E to the effect that the pursuer is disenfranchised from participating in the labour market as a consequence of the disabling effects of his injury. It was said to be unclear whether this was part of the claim for solatium or whether it was a claim for being disadvantaged in the labour market and separate from loss of income. This uncertainty, it was said, would make it difficult for the jury to quantify wage loss. Again I disagree. Taken in the context of all of the averments, I think it is quite clear that the pursuer is claiming that he will not be able to work as he would have done but for the accident, and I have no doubt that a jury can be appropriately addressed and directed in a straightforward manner on these topics.

[8] Counsel for the defenders then turned to the pursuer's service claim and submitted that there were insufficiently specific averments on this matter to be considered by a jury. The averments in support of a claim under Section 8 of the Administration of Justice Act 1982 start at page 9D of the closed record. At page 10C the pursuer claims that his headaches are worse during times of stress. It was said that it was not clear how often such periods of stress occurred. Again I could not find any substance in this criticism. It is obvious not always possible to quantify when such things will happen and I have no doubt that a jury would be well able to consider a claim on the basis that headaches are made worse under stress without further specification. There was further criticism of the pursuer's averments at page 11A-C which appear to suggest that the pursuer's claim for service cost went down at one point and then increased. I see no reason why this should justify the withdrawal of the case from a jury. The pursuer's averments at page 11D on alternative respite care were also criticised as being inspecific, although it appears to me that again full notice of the head of claim is given and that the specific cost is also provided. In the same passage criticism was offered of the averments that the pursuer's need for assistance would increase on the event of the death or infirmity of his parents at a specified cost. The defenders' argument was that the pursuer was not able to specify when this need would arise nor why he would need a case manager. Again I cannot see that these matters are unsuitable for examination by a jury. The averments are plain and self sufficient. It is clearly not possible for the pursuer to aver when he might require alternative care arrangements, and there is nothing difficult or vague about his claim that when such circumstances do arise, he will require to make alternative arrangements.

[9] The defenders' counsel then argued that the pursuer's claim for pension loss should not be allowed to go to a jury. The pursuer avers that if he stayed in the defenders' employment he would have qualified for the defenders' pension scheme. He also says if he had not joined the defenders' pension scheme but had found work elsewhere, he would have joined an alternate scheme. The pursuer has therefore stated his actuarial pension loss as at August 2000. The defender claims that this was in the first place too speculative; it required a number of things to happen before the pursuer could acquire pension rights. Further the defender claims that he has not identified the type of scheme, his contribution or what kind of scheme it is. Nor has he said when he will retire. In my view these submissions by the defender are unrealistic. The pursuer has indicated in general terms what would have happened had he continued to work either in the defenders' employment or some comparable work. This is a straightforward matter of proof. The detailed averments required by the defenders do not seem to me to be necessary to give adequate notice of what the pursuer seeks in this respect. The defenders are presumably aware of the nature of their own scheme and the relevant level of contributions. Accordingly, I do not agree that fair notice has not been given or that the averments are too inspecific or difficult.

[10] In all the circumstances, despite the careful and detailed submission by the defenders' counsel I have been unable to find anything of sufficient substance in the criticism of the pursuer's pleadings. I therefore repel the defenders' third plea-in-law, and allow issues.