Scottish Court of Session Decisions

[1] On 31 December 1996 the pursuer was working in the course of her employment with the defenders. She was working as a shop assistant, within the defenders' shop premises in Whitechapel Road, Wick. The pursuer claims that she sustained injury that day, when she fell down a set of stairs within the shop premises. Those stairs led from the storeroom, which was at first floor level, down to the shop itself, which was at ground floor level. The pursuer claims that her fall occurred, whilst she was descending the stairs, carrying a television set. She attributes her fall to her having stepped on a box, which had been left lying on the stairs, by one of her fellow employees, Mrs. Oag. who was the manageress of the shop.

[2] In this action the pursuer seeks damages for the loss, injury and damages allegedly sustained by her. She seeks to establish liability against the defenders by founding upon the alleged fault of Mrs. Oag and also upon the alleged breach by the defenders of the statutory duties incumbent upon them, in terms of Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992. The action is defended on the merits and on quantum.

[3] The pursuer, who was born on 27 April 1945, avers that as a consequence of her fall she injured her back, her neck, her right elbow and her knees. She claims that she continues to suffer pain in her back and neck. She avers that her shoulder movements are restricted and that she is no longer able to pursue her pre-accident sporting activities of swimming, badminton, hill walking and skiing. In response to averments in the defences, the pursuer admits that at the date of the accident she had pre-existing cervical spondylosis. She claims that the accident exacerbated that pre-existing condition. The pursuer has been off work since 3 January 1997. She claims that she has lost and will continue to lose earnings from her employment with the defenders and also commission of £60 month, which she was receiving at the time of her accident. The pursuer seeks reparation from the defenders in respect of (1) past solatium, (2) future solatium, (3) past loss of earning, (4) future loss of earnings and (5) expense incurred in engaging the services of chiropractors.

[4] The defenders' response on record, to the pursuer's averments of loss, injury and damage, begins that "The nature, extent and consequences of any loss, injury and damage sustained by the pursuer are not known and not admitted". Following a general denial, the defenders then aver that the pursuer suffers from osteo-arthritis in her neck, which pre-existed the accident and was not caused by it. They aver that her complaints and symptoms are out of proportion, to physical findings upon examination of the pursuer and to the mechanism of injury. They aver that the pursuer has adopted a pattern of illness behaviour. They also aver that, within five years of the date of the accident, the pursuer would have developed the symptoms properly attributable to cervical spondylosis. The defenders also aver that any injury sustained by the pursuer at the time of her alleged accident would not have prevented her from working.

[5] The defenders have, following amendment made at the outset of the procedure roll hearing, a second plea in law in the following terms:

[6] At the procedure roll, the defenders' counsel moved me to sustain that plea. He advanced no argument in support of the defenders' first plea in law, a general plea to the relevancy of the action. The pursuer's counsel, for his part, moved me to allow issues.

[7] The submissions by counsel for the defenders fell into two chapters. Both chapters were in support of the motion that issues be refused. The first chapter involved arguments of a traditional nature. Counsel for the defenders argued that standing the terms of the pursuer's pleadings and the fact that the pursuer admits that she suffered from cervical spondylosis at the time of the accident, the quantum of the pursuer's claim raises difficult issues of causation, that render the case unsuitable for trial by jury. Counsel founded upon the fact that the pursuer's averments on quantum do not contain any averment as to the nature or type of the injury sustained by the pursuer, that has led to the pursuer suffering the continuing pain in her back and neck and the restriction of movement in her shoulders, of which she now complains. Nor is there any averment as to the extent to which, if at all, the pre-existing cervical spondylosis caused the pursuer pain, prior to the date of the accident. Counsel submitted that where a pursuer admits suffering from a condition, that pre-dates the accident, which gives rise to the claim for damages, such a pursuer requires to aver either that prior to the accident she suffered no symptoms, as a consequence of that condition, or that if she did, what such symptoms were. In the present case the pursuer did neither. Such averments were necessary to provide the defenders with fair notice of the case they required to meet. Moreover the question of the causation of the pursuer's claimed symptoms was complicated by the fact that the defenders aver that the pursuer has adopted a pattern of illness behaviour.

[8] Counsel for the defenders submitted that it was clear from the averments on quantum that issues arise in this case as to (1) whether, (2) if so, when and (3) if so, to what extent the pursuer's cervical spondylosis would have become symptomatic, had the accident not occurred. Linked to that is the issue as to whether the development of such symptoms would have affected the pursuer's ability to continue in her employment. He argued that those issues involved complicated questions of causation, particularly in light of the state of the pursuer's pleadings and the allegation of functional overlay, which is raised in the defences. For these reasons, so he argued, the case was unsuitable for jury trial.

[9] Counsel for the defenders sought to support the first chapter of his submissions by reference to three authorities, O'Malley v Multiplex (UK) Inc 1997 SLT 362, Pietryea v Strathclyde Regional Council 1998 SLT 184 and McInnes v Kirkforthar Brick Co Ltd 1998 SLT 568.

[10] In reply, senior counsel for the pursuer submitted that when the pursuer's averments are read fairly the clear inference to be drawn is that the pursuer did not suffer any pain, as a consequence of cervical spondylosis, prior to the accident. Counsel founded in particular upon the averments at page 8E of the Record, where the pursuer admits that she had pre-existing cervical spondylosis, but goes on to aver that the accident on 31 December 1996 exacerbated her pre-existing condition. Counsel argued that the pursuer did not require to go beyond that and aver that she was pain-free. That was particularly so when the defenders aver that those of the symptoms from which the pursuer now suffers, that are properly attributable to cervical spondylosis, would have developed within five years of the date of the pursuer's accident. Senior counsel also submitted that the same averments, at page 8E, gave the defenders adequate notice of the medical cause of the continuing pain in the pursuer's back, neck and shoulders, which restrict her activities and have led to her continuing loss of earnings. That medical cause, he explained, was exacerbation of the pursuer's pre-existing cervical spondylosis.

[11] Senior counsel for the pursuer argued that the medical issues as to causation, that arise in this case, would probably involve the jury deciding between the evidence of two expert witnesses. The pursuer was now 55 years of age. As far as future loss of earnings are concerned the jurors could be informed about the figures brought out in the Ogden Tables for a woman of the pursuer's age and directed, by the presiding judge, how to use that information. If the defenders sought to argue that the pursuer's cervical spondylosis would have caused the pursuer to retire early, irrespective of the occurrence of the accident, there was nothing to prevent their placing that issue before the jury. Jurors were perfectly capable, so he argued, of resolving all issues of causation that would be relevant to the awards of solatium and loss of earnings sought by the pursuer, in the event of her establishing that the defenders are liable to pay damages.

[12] Jury trial is an appropriate mode of inquiry if the pursuer's pleadings are clearly relevant and specific on all material points. No suggestion is made that as far as the merits of the action are concerned, the case is unsuitable for jury trial. Where the problem is said to arise is in relation to the averments on quantum. As the pursuer's position on quantum was explained to me, during the submissions of senior counsel for the pursuer, it became apparent that there are at least four important medical issues in the case that will require to be determined. The first is whether the pursuer's complaints of pain and restriction of movement are genuine symptoms. The second is whether those symptoms, which are genuine, have been caused by the accident exacerbating the pursuer's pre-existing condition of cervical spondylosis. The third is whether, within five years of the date of the accident and irrespective of the occurrence of the accident, the pursuer would have developed such of her present symptoms, that are properly attributable to cervical spondylosis. Fourthly, if she would have developed such symptoms, when would that have occurred? If those issues had been clearly focused by the pleadings, I would have seen no reason why the members of a jury could not have been directed to address them and to have applied their conclusions to the assessment of solatium and loss of earnings, past and present. That would have been so, even if the pursuer is liable to seek an award for future loss of earnings, calculated by reference to a multiplicand and a multiplier, and the defenders are liable to argue that any award for future loss of earnings ought to be made on a lump sum basis. Here again, I would have seen no reason why the presiding judge would not be able to give a jury adequate directions as to the options open to them.

[13] However, those views presuppose that all of the central medical issues, that I have identified, had been clearly focused in the pursuer's pleadings, as they currently stand. In my opinion they are not. In particular, I am not satisfied that the pursuer clearly and unequivocally avers that the continuing pain in her neck and back and the restriction of movement in her shoulders are caused by, and are symptoms of, an exacerbation of her pre-existing cervical spondylosis. The problem is not so much the absence of any averments that the pursuer was pain-free prior to the accident, where the problem arises is that the pursuer does not clearly aver that all of her continuing symptoms arise as a consequence of the accident having exacerbated her cervical spondylosis and not for any other reason. If that is her contention and she is in a position to prove it, there is no reason why the appropriate averments could not have been included in the summons. The absence of such averments admits the possibility of the pursuer seeking to lead evidence that there may be some other medical cause for some or all of her continuing symptoms. In my opinion, the risk of that arising could lead to complications at a jury trial, complications that might be difficult for the presiding judge and a jury to cope with. There is also the point that in her pleadings the pursuer does not actually aver that she will remain unfit for her pre-accident employment, up until the date when she would ordinarily have retired - a date that itself is not specified. Here again, if the pursuer has the necessary information to justify her seeking compensation for loss of earnings up until her normal retirement date, there is no reason why the appropriate averments could not have been added to her pleadings. For whatever reason, that has not occurred. In these circumstances, I am satisfied that, standing the present terms of the pursuer's pleadings, special cause does exist for refusing the allowance of issues.

[14] The second chapter of the submissions on behalf of the defenders raised very different questions. Counsel argued that in the particular circumstances of this case, the fact that the jury would be invited to make awards for past and future loss of earnings could give rise to an infringement of the defenders' Convention rights, under Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Counsel for the defenders stressed that he was not arguing that the provisions of the Human Rights Act 1998 ("the 1998 Act") precluded the allowance of a jury trial in every action of damages for personal injuries. Accordingly, he was not advancing a line of argument similar to that put forward on behalf of the defenders in Gunn v Newman (Unreported, Lord Hamilton, 19 December 2000). What he was arguing, however, was that in the particular circumstances of this case, which includes disputes between the parties as to whether and, if so, to what extent the pursuer should be compensated for past loss of earnings and future loss of earnings, the inability of the jury to give reasons for any awards for loss of earnings, could lead to an infringement of the defenders' Convention rights. Counsel argued that the problem arose because, in the absence of reasons for any such awards of past and future loss of earnings, it would not be possible for the defenders to fully exercise their right to appeal in respect of any such awards. In his submissions, counsel for the defenders accepted that the determination of certain heads of loss by a jury could properly be described as involving the resolution of "jury questions". Awards for solatium fell within such a description. But, in the present case, so he argued, the pursuer's claims for past and future loss of earnings required to viewed differently. In the absence of any reasons for any such awards, it would in all probability be impossible to identify why awards had been made, at the particular figures chosen by the jury. That could inhibit the defenders' ability to exercise their right to appeal. In such circumstances, there was a risk that a breach of the Convention rights would occur if the case proceeded to jury trial. On the other hand, no such breach would arise, if the action went to proof before a judge. A judge would be bound to provide a reasoned opinion for any awards of past or future loss of earnings, which he made.

[15] Under reference to Section 3(1) of the 1998 Act, counsel for the defenders argued that Section 9(b) of the Court of Session Act 1988 ("the 1988 Act") requires to be construed in a way which is compatible with the defenders' Convention rights. That could be achieved, so he argued, by construing the term "special cause", as used in Section 9(b) of the 1998 Act, as being capable of covering the consideration that, by reason of its inability to give reasons for any awards of past or future loss of earnings, any jury sworn to try this action would be liable to act in a manner incompatible with the defenders' Convention rights. If the term "special cause" fell to be construed along such lines, then the risk of any breach of the defenders' Convention rights could be eliminated altogether, by allowing a proof and refusing the allowance of issues.

[16] In advancing this second chapter of his submissions, counsel for the defenders referred me to a number of authorities, including certain decisions of the European Court of Human Rights ("the E.C.H.R."). Reference was made to Hadjianastassiou v Greece (1992) 16 E.H.R.R. 219, where in Para. 33 of its Judgment the E.C.H.R. recognised that the Contracting States enjoy considerable freedom in the choice of the appropriate means of ensuring that their respective judicial systems comply with the requirements of Article 6(1). The E.C.H.R. held, however, that freedom did not exempt national courts from indicating, with sufficient clarity, the grounds upon which their decisions are based. It was such grounds, inter alia, which make it possible for an individual to exercise usefully the rights of appeal available to him. Hadjianastassiou concerned a Greek air force officer, who had been prosecuted in the military courts. It was held by the E.C.H.R. that he had suffered a violation of his rights under Article 6(3)(b), which constituted specific aspects of his general right to a fair trial, guaranteed by Article 6(1). That violation had arisen by virtue of the inadequacy of the reasons of the Courts-Martial Appeal Court and the manner in which such reasons had been made public. Counsel for the defenders argued that in the present case the need for clarity, as to the grounds upon which a determination of civil rights has been based, is just as important to enable rights of appeal to be pursued. It was suggested, by way of example, that if in the present case a jury was to award a figure for future loss of earnings, the defenders would not know whether the jury had selected a lump sum, whether it had proceeded by using a multiplier and a multiplicand and, if so, which multiplier and multiplicand had been selected.

[17] I was also referred to Hiro Balani v Spain (1994) 19 E.H.R.R. 566. That case arose out of an application by a Japanese company to remove a trademark, owned by Hiro Balani, from the industrial property register in Spain. Before the E.C.H.R. Hiro Balani contended that their rights under Article 6(1) had been infringed on account of the inadequacy of the reasons given by the Supreme Court in Spain, when it ruled against them. Para. 27 of the Judgment of the E.C.H.R. was in the following terms:

Counsel for the defenders conceded that the terms of this passage were consistent with the view that there would be some actions of damages for personal injury in which jury trial would be possible.

[18] Counsel for the defenders also sought to illustrate the need for tribunals and courts to give reasons, sufficient to enable rights of appeal to be pursued, by reference to Helle v Finland (1997) 25 E.H.R.R. 159, at page 183, Para. 55, Stefan v General Medical Council [1999] 1 WLR 1293, at pages 1300-1301 and Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, at page 381.

[19] In response, senior counsel for the pursuer argued that the requirements of Article 6 clearly did not require reasons to be provided by the jury in every jury trial. He submitted that no such duty would arise if the present action were tried before a jury. He argued that even if there was such a duty, applicable in a case like the present one, that duty would be adequately met by the jury being required to award damages under various heads. Those heads would involve separate figures for past and future solatium and past and future loss of earnings. Senior counsel argued that standing the evidence that a jury would hear in relation to the level of the pursuer' earnings, at the date of the accident, and what she would have earned, had she remained in the employment of the defenders, if the jurors were minded to award damages for future loss of earnings, the only real issue for them would be to decide on the multiplier. If the defenders were concerned to split the head of future loss of earnings into more than one section, because of their wish to contend that the pursuer would have retired by a specific date, had the accident not occurred, there would be nothing to prevent the defenders from seeking to have such a matter addressed, when the Issue is approved. There could, so he argued by way of example, be two heads for future loss of earnings, one for the period to the date of the pursuer's 57^th birthday and a second for the period between that date and the date when the pursuer will be 60.

[20] Senior counsel for the pursuer submitted that for the purposes of the defenders exercising their right to apply for a new trial, under Section 29 of the 1998 Act, the verdict of a jury, returned in terms of the normal form of Issue, would provide all the information about the jury's verdict as would be necessary. The terms of such a verdict, when taken with the evidence before the jury and the terms of the presiding judge's charge, would enable any motion for a new trial to be fully argued.

[21] In my opinion, whilst this second chapter of submissions on behalf of the defenders raises novel points, none of the arguments advanced would warrant my holding that in the circumstances of this case, the allowance of issues would give rise to any risk that the defenders' Convention rights under Article 6(1) would be liable to be infringed. Numerous authorities indicate that, over the years, the Inner House have had little difficulty in dealing with motions for new trials, without the Court having had available, reasons for a jury's decisions on liability and on any individual awards of damages that have been made. In this regard, it is important to bear in mind the grounds upon which a new trial may be sought and granted. These are to be found in Section 29(1) of the 1988 Act. Amongst those grounds are the excess or inadequacy of the damages. The specific grounds enumerated in Section 29(1) are followed by the words "or on such other ground as is essential to the justice of the cause". As Lord Guthrie pointed out in Maltman v Tarmac Civil Engineering Ltd 1967 SC 177, at page183, under reference to a similar provision in Section 6 of the Jury Trials (Scotland) Act 1815:

Accordingly, when the amount of damages awarded by a jury is called into question, it is necessary for the Inner House to consider whether essential justice requires that the motion for a new trial be granted (see, Tate v Fischer 1998 SLT 1419, at page 1421 C-D). As the Opinion of the Court in Tate v Fischer also makes clear, when the Inner House is considering a motion for a new trial, related to the amount of damages awarded, it is not in accordance with that principle that attention be confined to the particular head of damage being attacked. The Opinion of the Court, at page 1421 F-G, contains the following passage:

[22] In my opinion, such an approach to the determination of a motion for a new trial, when the amount of damages is called into question, does not require detailed reasons to be given by a jury, before the party dissatisfied with the jury's decision on quantum can exercise their statutory right to seek a new trial.

[23] In the circumstances of the present case, which include that the pursuer was 51 at the date of her accident, that she was on that date in regular employment and that it is likely that a jury would be asked to award past loss of earnings and future loss of earnings, assessed on the basis that the pursuer would have remained in employment, up until what would have been her projected date of retiral, I am not persuaded that had the pursuer's pleadings been sufficiently clear and specific to permit the allowance of issues, there would have been any risk of an infringement of the defenders' Convention rights under Article 6(1). For these reasons, I do not accept the second chapter of the submissions, on behalf of the defenders, as establishing the existence of special cause warranting the refusal of issues.

[24] For the reasons indicated earlier, however, I am satisfied that special cause does exist for sending this case for proof rather than jury trial. Accordingly, I sustain the defenders' second plea in law and allow a proof before answer.