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Cite as: [2002] ScotCS 313

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King v. Negro [2002] ScotCS 313 (10 December 2002)

OUTER HOUSE, COURT OF SESSION

A1092/97

OPINION OF LORD CLARKE

in the cause

DR. MARGARET KING

Pursuer;

against

ERIC NEGRO

Defender:

________________

Pursuer: Ellis, QC; Balfour & Manson

Defender: Charteris; Bishops

10 December 2002

This is an action of reparation in which the pursuer sues the defender for damages in respect of injuries she sustained in a vehicle collision on 23 August 1994. Liability is not disputed and the action is simply defended as to quantum of damages.

The matter came before me for discussion on the procedure roll, on the defender's motion, in relation to two preliminary pleas-in-law. The first of these pleas seeks refusal of issues on the basis that the assessment of quantum is unsuitable for trial by jury. The second plea is a plea to the relevancy and specification of the pursuer's averments relating to quantum. At the commencement of the hearing, senior counsel for the pursuer moved me to allow the Closed Record to be opened up and amended in terms of a Minute of Amendment for the pursuer and Answers for the defender, Nos 15 and 16 of process. This motion was not opposed by counsel for the defender and I granted it. I awarded the defender the expenses occasioned by the amendment procedure.

Counsel for the defender advised the Court that as a result of the pursuer's amendment, she now accepted that the defender's second plea-in-law relating to relevancy and specification should be repelled. The discussion before me, therefore, was confined to the sole question as to whether or not issues should be allowed.

The pursuer avers that the injuries she sustained in the accident were as follows:

fractured vertebrae in her thoracic and lumbar spine at L4 level;
a fractured sternum and chest compression injury;
bruising to her face, thorax and abdomen; and
a laceration of her left knee.

At the time of the accident the pursuer was employed as a senior clinical medical officer at Chelsea and Westminster Hospital, London. She avers that but for the accident she would have worked until her 65^th birthday, which will occur on 23 August 2003. She avers that because of the consequences of the accident she took ill-health retirement on 27 October 1999. She claims damages for solatium, loss of earnings and loss of pension rights due to her early retirement. She also sues for a number of items of patrimonial loss and costs and expenses she has incurred, and will incur in the future, because of her accident, including the cost of the provision of services to her. It is reasonably clear from the pursuer's pleadings, and it was acknowledged by senior counsel for the pursuer, that the main cause of her continuing incapacity is said to be the back injury she sustained in the accident. She avers in detail the consequences of that injury. She also, however, avers that, prior to the accident, she suffered, in 1989, from a prolapsed vertebral disc at L5/S1 level and that she underwent a laminectomy as a result. She goes on to aver, however, that she thereafter made a virtually full recovery therefrom and was able to work and carry on with her activity "in general". She expressly avers that but for the accident the L5/S1 level "former problems" were unlikely to have caused her significant pain or disability and that she would have been able to work until retirement at age 65.

The pursuer goes on to aver that, in 1996, she consulted her GP at an asthma clinic run by him. She did so because she had been suffering from increasing breathlessness or exertion for about nine months. She avers,

"Her increased breathlessness is overwhelmingly due to the effects of the accident on a pre-existing dorsal kyphosis. She suffered to some extent from a dorsal kyphosis prior to the accident. In January 1995 it had increased to 45° In March 1996 it had increased by about 15% to 20%. The dorsal kyphosis is likely to have progressed gradually over the years in any event. Its progression was dramatically accelerated by the accident. Lung function in any event would not have prevented her working up to retirement age."

The defender's response to the very detailed averments of the pursuer relating to quantum are very brief. After having averred, in Answer 4, that the nature and extent of any injuries sustained by the pursuer are not known and not admitted, there is a general denial by the defender of the pursuer's averments. This is followed by averments to the following effect:

"Explained and averred that the pursuer was asthmatic before the accident and has been on steroids since 1986. In July 1994 her asthma was disturbing her sleep and limiting her activities. She also has a past medical history of paroxysmal atrial tachycardia since 1988."

In seeking to persuade me that issues should be refused in this case, counsel for the defender's submission was that the case, pled by the pursuer, raised issues of such medical complexity as to amount to a special cause justifying the Court in exercising its discretion to refuse to allow the pursuer to have a jury trial in respect of claim. In developing her submission, counsel for the defender set out clearly and comprehensively the principles which the Court has, in previous cases, established when a question of this kind arises. In doing so she faced up to the high hurdle which a defender has to jump before a court will hold that special cause has been established. In the first place, it established that the special cause which had to be made out required to be special to the circumstances of the particular case with which the court was concerned. Secondly, the matter was one for the judge's discretion and involved considering which type of tribunal was best designed to secure justice between the parties to the action. Thirdly, while medically complex questions, which a case might raise, could, in appropriate circumstances, amount to a special cause, counsel for the defender accepted that the authorities made it clear that factors which might make a case more complex than other more straightforward ones would not amount to special cause. For example, counsel accepted that the severity of the injuries sustained would not normally amount per se to a special cause (Shearer v Beavan's Executor 1986 SLT 286). The mere fact that the schedule of damages would contain a large number of separate headings would not normally constitute a special cause. A jury trial was, moreover, not necessarily an unsuitable tribunal where the case would involve many rather than few medical witnesses (Potts v McNulty 2000 SLT 1269). Even when the medical evidence itself might be foreseen to be highly technical or complex, this did not necessarily mean that the case was unsuitable for jury trial (Irvine v The Balmoral Hotel Edinburgh Limited 1999 Rep. LR 41). Even if there was a conflict of medical opinion regarding the causation of the injuries and their sequelae, that would not per se amount to special cause (McAllister v Strathclyde Regional Council 1993 Greens Weekly Digest 65). Counsel for the defender also acknowledged that the mere fact that a jury would be faced with a difficult task in assessing damages was not sufficient to establish special cause having regard to the fact that they would be assisted by appropriate directions from the judge. Lastly, counsel for the defender referred me to a possible conflict of view as to whether it was appropriate, in deciding whether or not special cause was made out, to have regard to the fact that criminal juries were regularly asked to decide difficult questions of causation based on complex medical evidence (contrast Dunn Rigblast Energy Services Ltd 1999 SLT 531 at p.532L) (per Temporary Judge T G Coutts, QC and Reid v BP Oil Grangemouth Refinery Ltd Unreported, 8 May 2001 per Lord McCluskey at p. 6).

Notwithstanding all the factors which counsel for the defender had so fully set out, and had faced up to, which, at least taken, individually and, at first sight, would appear to argue against her submission that special cause arose in the present case, counsel, nevertheless, contended that, in the present case, the cumulative effect of a number of features produced a case of such potential complexity that it could not be said with any great confidence that a jury would be capable of deciding it so as to do justice as between the parties. The features of the case to which counsel pointed in this respect were (a) the number and detail of the heads of claim, (b) the number of injuries sustained, (c) the fact that the pursuer, on her own averments, suffered from two previous conditions whose symptoms might have been exacerbated by the injuries sustained in the accident and (d) the loss of pension rights. While none of these factors, standing alone, might be sufficient to amount to special cause, in combination, they would make it difficult for a judge to give such clear directions as would avoid confusion in the mind of the jury and therefore injustice as between the parties.

In reply senior counsel for the pursuer emphasised that the pursuer had a statutory right to a jury trial unless the defender discharged the onus on him to show special cause. Juries were well used to having to deal with questions of medical complexity including questions of causation. Counsel in making this submission referred me to the case of Irvine above and also to Gardiner v Fleming 1969 SLT (Notes) 93. In the last mentioned case, Lord Avonside did not consider that a complicated question of causation, in relation to the pursuer's medical condition, amounted to special cause and his Lordship said this,

"There is no doubt at all, and the matter is really beyond argument, that in the ordinary case complicated medical issues do arise and that they are treated as matters of fact and matters of fact are particularly those in which our system of law leaves the decision to the jury".

Counsel for the pursuer referred me also to the unreported decision of Lady Paton in the case of Graham v Dryden, 23 July 2002 in which her Ladyship, inter alia, found that questions of loss of pension rights did not amount to a special cause for not allowing issues. Counsel for the pursuer accepted the pursuer's pre-existing back condition might raise a difficult question of causation, but he submitted that this was not something that was so difficult, or unusual, that a jury would not be capable of dealing with it. Such questions were regularly dealt with by juries. The averments regarding the pursuer's dorsal kyphosis condition did not amount to saying that the exacerbation of that condition had rendered the pursuer incapable for work but was simply there, in the case, as an aggravation of the consequences of the injuries as a whole. Those averments did not, accordingly, take the case out of the category of a standard reparation action. In any event, as far as the defender's averments presently went, it was far from clear that there was any real major conflict on medical issues in this case. The defender did not even disclose, as a matter of particular averment any contested question of causation. The quantification of wage loss and pension loss, in the present case, would be less complex than in many cases which went to juries to decide, because of the fact that the pursuer worked up relatively close to retirement age. The issues, therefore, in this case, though it involved serious injuries to the pursuer, did not cumulatively amount to special cause. The Court should repel the defender's first plea-in-law and allow issues.

The starting point is that the pursuer has a statutory right to jury trial and can lose it only if the defender can persuade the Court, under reference to the pleadings, that there is some cause, special to the case, which makes it unsuitable for such procedure. As far as the medical issues which the averments of the pursuer might be seen to raise, and the medical evidence which may be led in relation thereto, are concerned, these may prove to be both technical and complex. In particular there may be a difficult question as to the link, if any, between the pursuer's pre-accident conditions and her post-accident symptoms. But as Lord Gill said in Irvine v The Balmoral Hotel Edinburgh Limited at p.4,

"Even if the medical evidence is to be technical and complex, that will not of itself make the case unsuitable for jury trial. Such complicated medical questions are accordingly treated as matters of fact that are appropriate for the decision of a jury. There is nothing in the present case to suggest that it raises any medical question of such novelty or uncertainty that the jury are unlikely to understand it (cf. Fyfe v Barnet & Morton Limited 1965 SLT (Notes) 52). I have no reason to think that a jury will be unable to reach a common-sense decision on the matter in the light of the evidence. They will receive appropriate directions from the presiding judge."

It is also of some importance, in my view to note, as counsel for the pursuer pointed out, the defender's pleadings, as they stand, apart from the general denial, do not positively put in issue, at all, any questions of medical causation. He simply refers to two conditions which, it is averred, the pursuer suffers, that is, asthma and paroxysmal atrial tachycardia, without averring that these conditions had any effect on her ability to work. Far less do they appear to be averred to be in any way connected with the symptoms of the major injuries averred by the pursuer. Counsel for the defender informed me that the defender had not yet had the pursuer medically examined. He is not, therefore, in a position to aver positively that any serious question of causation does arise, nor was counsel for the defender, in a position even to say that it was certain there would be any evidence led by the defender contradictory of the pursuer's averments regarding her injuries and their consequences. In a situation where it is incumbent upon the defender to establish special cause for refusing jury trial, it seems to me that, in a case like the present, it is for the defender, at least, to place before the Court a proper basis for indicating that there was a real likelihood, as opposed to a purely hypothetical possibility, of the issues being of such controversy or novelty or complexity that would render jury trial inappropriate.

As far as the other issues which the case raises, namely the nature and number of the heads of loss and the number of injuries sustained by the pursuer are concerned, as I have previously noted, counsel for the pursuer acknowledged, none of these individually would amount to special cause. I am satisfied that even when they are taken together with the medical issues, which might arise in this case, they do not amount to special cause. The features of the present case may well require careful directions to be given to the jury by the presiding judge, but so directed, I consider there is no serious risk of injustice, as between the parties, arising. I will accordingly, of consent, repel the defender's second plea-in-law and also repel the defender's first plea-in-law and allow issues.