Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
A1603/98	OPINION OF LORD MACFADYEN in the cause DUNCAN GILLIES and OTHERS (A.P.) Pursuers; against DAVID HERD LYNCH and OTHERS Defenders:   ________________

Pursuers: J. J. Mitchell, Q.C.; Anderson Strathern, W.S.

Defenders: R. G. Milligan; Simpson and Marwick, W.S.

17 October 2002

Introduction

1. This is an action of damages brought by relatives of the late Michelle Charlotte Gillies ("the deceased"), who died in a road accident on 1 November 1995. By the time the case called before me on the procedure roll, the defences relating to the merits of the pursuers' claims had been repelled, and the only matter remaining in issue was the quantification of these claims. The question debated before me was whether issues should be allowed or the case should be remitted to proof before answer.
2. The defenders' contention was that aspects of the second pursuer's averments of loss relating to psychological injury were of doubtful relevancy, and that on that account issues could not be allowed and the case required to be remitted to proof before answer. There was no separate plea or submission that, even if the second pursuer's averments of loss were relevant, they nevertheless gave rise on some other basis to special cause for withholding the action from jury trial. The first and second defenders' second plea-in-law is to the effect that the second pursuer's averments of psychological damage are irrelevant and should be excluded from probation. Mr Milligan, who appeared for the defenders, did not, however, invite me to sustain that plea. The pursuers contended that the averments of loss made by the second defender were wholly relevant, and that they were consequently entitled to have issues allowed.

The second pursuer's averments of loss

3. The second pursuer is the mother of the deceased. Her averments of loss are set out in article 6 of the condescendence. After an introductory averment of a general nature, an averment that the second pursuer and the deceased were close, and a narrative of the second pursuer being informed of the death of the deceased and having to attend at the mortuary to identify her body, the averments continue in the following terms:

"As a result of hearing the news of [the deceased's] death the second pursuer was extremely upset and suffered psychological damage. She has lost her focus on life. She is depressed. She suffers from a pathological grief reaction and has developed a severe depressive disorder. Following the accident, she could not drive, due to lack of concentration and extreme nervousness. She found it extremely hard to be a passenger in a car. She has since been unable to return to her work with Balblair Vending Services. ... The second pursuer attended her General Practitioner ... [who] referred her to a Psychiatrist. ... The second pursuer has seen him on a monthly basis since the accident. She takes anti-depressant tablets prescribed by him daily. The second pursuer suffered and continues to suffer grief and sorrow caused by the death of [the deceased]. The second pursuer has lost the society of her daughter."

There then follow further averments elaborating the averment of loss of society, and averments about funeral expenses incurred.

The Damages (Scotland) Act 1976

4. The claims available to relatives of a person whose death has been caused by negligence on the part of another are regulated by section 1 of the Damages (Scotland) Act 1976 (as amended). Section 1(3) gives relatives (as defined in section 10(1) of and Schedule 1 to the Act) a claim for compensation for loss of support suffered through the death of the deceased. Section 1(4) provides as follows:

"If the relative is a member of the deceased's immediate family (within the meaning of section 10(2) of this Act) there shall be awarded, without prejudice to any claim under subsection (3) above, such sum of damages, if any, as the court thinks just by way of compensation for all or any of the following -

(a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death;

(b) grief and sorrow of the relative caused by the deceased's death;

(c) the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died, and the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above."

It was not disputed that, as the deceased's mother, the second pursuer was a member of her immediate family, and was therefore entitled to make a claim under section 1(3).

The defenders' submissions

5. The debate proceeded on the basis, unequivocally affirmed at an early stage in the discussion by Mr Mitchell, who appeared for the pursuers, that the second pursuer did not seek to pursue any claim other than the one available to her under section 1(4). Mr Milligan's submission was that the second pursuer's averments, so far as they amounted to averments that she had suffered psychiatric injury, were of doubtful relevancy in support of a claim under section 1(4). He accepted that the burden of establishing ground for withholding the action from jury trial rested on him. He submitted, however, that if a case was to be tried by jury, it was essential for the pursuer's averments to be clearly relevant and specific. In support of that proposition he referred to O'Malley v Multiflex (UK) Inc. 1995 SCLR 1143 per Lord Gill at 1145A:

"The recent revival of interest in jury trial makes it necessary for pleaders to keep in mind that jury trial is an appropriate mode of inquiry only if the pursuer's pleadings are clearly relevant and specific on all material points."

There was, he submitted, an important distinction between, on the one hand, grief and sorrow caused by bereavement, and on the other hand, a recognised psychiatric injury. The former was expressly made the basis of part of the claim available under section 1(4). The latter was the subject of an entirely separate body of law. How far averments pointing to psychiatric injury might be relevant in support of a claim under section 1(4) could not be satisfactorily determined at debate. The precise border line between averments on that subject that might be relevant in support of such a claim, and averments on that subject that might be irrelevant for that purpose could only be drawn after the evidence in support of the averments had been heard. That could not be done in a jury trial. The point therefore required to be reserved for proof before answer.

6. In support of his submission Mr Milligan referred to two further cases. The first was Bromham v Highland Regional Council 1997 SLT 1137. In that case claims were made by the husband of a woman killed in a road accident and on behalf of her daughters. The claims of the husband and one of the daughters included both a claim under section 1(4) of the 1976 Act and a claim for solatium in respect of post traumatic stress disorder which they were said to have suffered in consequence of witnessing the accident which resulted in the death of the deceased. Lady Cosgrove held that the case was unsuitable for jury trial. Her Ladyship said (at 1139I to 1140A):

"It was contended that ... it was inevitable that there would be an overlap in the evidence as to the grief and suffering on the one hand and the post traumatic stress disorder on the other and that it would accordingly be difficult for a jury to keep these two issues separate in their minds as they would require to do. ...

The question thus comes to be whether difficulties are likely to arise for a jury in understanding and separating in their minds these two issues of loss of society and post traumatic stress disorder. A definition and explanation of each could undoubtedly be given to the jury, including the specific diagnostic criteria which the symptoms require to fulfil for the disorder. It is recognised however that cases of psychiatric illness raise questions of unusual difficulty for the court (Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 365H-I). It is evident from the pleadings in the present case that the first pursuer did not actually witness the accident and it seems to me that questions may thus arise as to whether there exists a sufficient degree of proximity to the event in nearness in time for him to have a claim in respect of psychiatric illness. Further, I consider that the possible overlap between the two issues is likely, in a situation where there will clearly be a common thread linking them, to cause confusion in the minds of the jury for whom difficulties would be likely to arise in following and applying directions in relation to the distinction between concepts which are not particularly easy to understand. I am of the view that this potential difficulty is a consideration which renders this case unsuitable for jury trial."

7. The second case to which Mr Milligan referred was Beaton v Cain 2000 SLT 920. Temporary Judge T. G. Coutts Q.C. recorded one aspect of the defender's submissions in the following terms (at 922B):

"[11] A major attack on the averments of the fourth pursuer [the father of the deceased] was mounted. He also claims damages for 'distress, grief and loss of society', but adds that he suffers from depression which required counselling and the taking of drugs. This was a matter of personal injury and did not necessarily follow from a section 1(4) claim."

The Temporary Judge dealt with that submission in the following terms (at 922G-L):

"[15] In my opinion the important factors special to this case are ... fourthly, the position adopted by the fourth pursuer in relation to the third party causes a difficulty and as noted above his averment about suffering from depression may well take his claim further than one based solely on grief and loss of society ...

[17] It is because of all these complicating factors that I find that special cause has been shown to indicate that this case is not suitable for jury trial."

The pursuers' submissions

8. Mr Mitchell submitted that, looking at the second pursuer's pleadings as they now stood after amendment, there was no question here of two overlapping claims being advanced (as in Bromham). It might have been thought before amendment that that was the position in which the second pursuer was seeking to place herself, but the only claim now made was under section 1(4). The second pursuer made only the statutory relative's claim in respect of the death of her daughter caused by the defenders' breach of duties of care owed to the deceased. She did not assert that she herself had suffered personal injury of a psychiatric nature as a result of the defenders' breach of duties of care owed to her. The second pursuer, under section 1(4) was entitled to claim non-patrimonial loss under a number of heads. The heads relied on in this case were those set out in section 1(4)(b) and (c). There was no attack on the relevancy of the averments of loss of society under section 1(4)(c). The attack was on averments which were put forward in support of the claim under section 1(4)(b). The second pursuer was entitled to make averments which bore on the gravity and extent of the "grief and sorrow" caused to her by the deceased's death. If averments that in a particular case the grief was so severe that it resulted in or constituted psychiatric illness were to be held to be irrelevant, the effect would be artificially to "cap" awards under section 1(4) by excluding comprehensive evidence of the gravity of the worst category of case. It would be quite unfair and illogical to hold that medical evidence about the psychiatric illness, and what it involved and what treatment it had required, could not be led before a jury to enable it to understand how great the second pursuer's grief at her daughter's death had been. Even in pre-1976 common law claims for solatium in respect of the death of a relative, examples could be found of medical evidence being led (Smith v Comrie's Executrix 1944 SC 499). It did not matter that the averments were of such a nature that they might support a personal claim for damages for psychiatric injury if the other requirements of such a claim were advanced. In such claims, the effect of the accident required to come up to the standard of constituting a recognisable psychiatric illness, since otherwise the pursuer would be held not to have suffered any injury. But it did not follow that, in a section 1(4) claim, any manifestation of grief which reached the pitch of psychiatric illness had to be left out of account. The issue was simply whether the averments of psychiatric illness were relevant to the assessment of the gravity and extent of the second pursuer's grief. If averments of psychiatric injury required to be excluded if the case was to go before a jury, the effect would be to present to the jury an incomplete and misleading picture of the extent of the second pursuer's grief.

Discussion

9. It is, in my view, clear from the second pursuer's pleadings, and was confirmed by Mr Mitchell expressly in the course of the debate, that the only claim which she seeks to make is a claim under section 1(4) of the 1976 Act. The position may have been different, as Mr Mitchell indicated, before amendment of her pleadings, but I am unable to comment on that, because the earlier version of the pleadings was not put before me. The question which requires to be determined is therefore whether the averments made in support of the section 1(4) claim contain averments which are of doubtful relevance for that purpose.
10. Section 1(4) (as amended) provides for compensation for all or any of three categories of loss. The first of these - distress and anxiety endured in contemplation of the suffering of the deceased before death (section 1(4)(a)) - does not arise in the present case. The third category - loss of the non-patrimonial benefit of the society and guidance of the deceased (section 1(4)(c)) - does arise in the present case, but the relevancy of the averments made in that connection is not under attack. It is some of the averments in relation to the second category of loss - grief and sorrow (section 1(4)(b)) - that are said to be of doubtful relevancy.
11. It is as well, in my view, to recall what is meant by the convenient, but short-hand, phrase "doubtful relevancy". Averments are not of doubtful relevancy because one party maintains that they are relevant and the other maintains that they are irrelevant. In face of such a dispute, the court may hold either that the averments are relevant, or that they are irrelevant. In the former case, the plea to relevancy will be repelled, and either the case will be remitted to proof, or (in the absence of any special cause for not doing so) issues will be allowed. It is only if the court takes the view that it cannot be satisfactorily determined whether the averments are relevant or irrelevant without first hearing evidence that the averments can properly be described as of doubtful relevancy. In that event, inquiry must be by proof before answer, and the possibility of jury trial is excluded.
12. The present case does not in my view fall into the same category as Bromham. There the problem was that there were two separate claims, founded on separate legal principles, which it was thought overlapped and would be difficult for a jury to keep separate in their minds. The risk, I think, was that a jury might take account of the same factors in quantifying both claims, and thus make awards which doubly compensated part of the loss. No such point arises here. Nor do I consider that Beaton is directly in point. Although it did touch on the question of whether psychiatric injury was something different from grief, the point was not examined in any detail, and in the end that consideration was but one of many that were taken into account in reaching the overall conclusion that the case was unsuitable for jury trial.
13. The question in the present case is whether the averments which state that as a result of the death of the deceased the second pursuer "suffered psychological damage", "is depressed", "suffers from pathological grief reaction" and "has developed a severe depressive disorder" are of doubtful relevancy, in the sense which I have indicated, in support of a claim for "grief and sorrow" under section 1(4)(b).
14. It seems to me that it is nothing to the point that the averments might have been relevant averments of loss in a claim of a different nature, namely a claim for personal injuries made by the second pursuer on the ground that the defenders had harmed her by breach of a duty of care owed to her. The fact that in such a context the averments of loss must identify a recognised psychiatric illness does not seem to me to lead logically to the result that averments of a recognised psychiatric illness cannot be relevant in support of a section 1(4)(b) claim.
15. It is in my view clear that the extent of the grief suffered by a relative as a result of the death of a deceased will vary from the slight or moderate through to serious, grave or catastrophic. No doubt in the past there was less recognition than there now is that grief can sometimes have a sufficient impact on the sufferer to amount to or result in a deterioration of psychiatric health. It is, however, interesting to note that in Smith v Comrie's Executive medical evidence was led, apparently without adverse comment. It seems to me to be quite artificial to attempt to draw a borderline between grief caused by bereavement and psychiatric illness caused by bereavement. If the relative's emotional reaction to bereavement is of such a degree as to amount to psychiatric illness, I see no logic in treating it as something different from grief. As Mr Mitchell pointed out, any such rule would place an artificial cap on section 1(4)(b) claims, and would operate to the unfair effect of allowing a full measure of the loss of a relative who is only slightly affected by the bereavement, but restricting the evidence available to explain the extent of the grief in the most serious cases.
16. In the result I take the view that the averments relating to a psychological condition resulting to the second pursuer from the death of the deceased are relevant. I do not consider that their relevance could be any more satisfactorily determined after proof than at this stage. I therefore consider that it would be wrong to regard them as of doubtful relevancy. That is not to say that it is impossible that in some cases such averments may raise questions of difficulty and complexity which will amount to special cause. I have in mind as an example the case of a pursuer who is already, before the death, in psychiatric ill-health. In that type of situation, the issues of causation may be too complex to be resolved satisfactorily by a jury. There is, however, no such complication in the present case.

Result

17. I shall therefore repel the first pleas-in-law for the first and second and the third defenders. I shall also repel (a) the first and second defenders' second plea-in-law, which Mr Milligan did not invite me to sustain, and (b) the first and second defenders' third plea-in-law, which is directed against the relevancy of the third pursuer's averments of loss, and was not argued. Having thus repelled all the defenders' preliminary pleas, and in the absence of any argument that on any other basis special cause exists for withholding the case from jury trial, I shall allow issues. I shall reserve meantime the expenses of the hearing on the procedure roll.