Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Higgins v. DHL International (UK) Ltd [2003] ScotCS 272 (31 October 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/272.html
Cite as: [2003] ScotCS 272
[New search] [Help]
Higgins v. DHL International (UK) Ltd [2003] ScotCS 272 (31 October 2003)
|
OUTER HOUSE, COURT OF SESSION |
|
|
PD36/03
|
OPINION OF LADY PATON in the cause STEPHEN HIGGINS Pursuer; against
DHL INTERNATIONAL (UK) LTD Defenders:
_____________
|
Pursuer: Hayhow, Advocate; Campbell Smith, W.S.
Defenders: R.W. Dunlop, Advocate; Simpson & Marwick, W.S.
31 October 2003
New personal injuries rules: proof or jury trial
[1] In this action of damages for personal injuries, the pursuer avers that he was injured on two occasions in the course of his work with the defenders when unloading boxes from a van.[2] The action was raised in the Court of Session after 1 April 2003. Accordingly, new rules of court apply, namely Chapter 43 of the Rules of the Court of Session, as substituted by Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002, S.S.I. 2002 No.570.
[3] In compliance with rule 43.2(1) and form 43.2-A, the pursuer's summons is concise. Paragraph 4 of form 43.2-A instructs practitioners to "state briefly the facts necessary to establish the claim." The pursuer does so by averring:
"Stat.4 The pursuer was employed by the defenders as a van driver. In the course of his employment he required to load and unload heavy boxes and packages from his van and to deliver them to customers' premises. He was expected to carry out said work alone and unassisted. He was not provided with any information or training as to methods by which to safely load, unload and carry boxes and packages. He was not provided with any trolley or barrow on which to transport them. On or about 5 March 2000 the pursuer was required in the course of his employment to unload boxes for delivery at St. Mary's Street, Edinburgh. Two of the boxes which he required to unload were very heavy. They weighed approximately 30 kgs. The pursuer lifted them from his van and carried them into the office building to which they were to be delivered. Whilst holding the boxes, he lifted his arms to press the button calling the lift which would have taken him to the appropriate floor. In doing so, the pursuer experienced very severe pain in his back, which caused him to drop the boxes. He was unable to pick them up or continue to lift them. He was able to deliver the packages only by kicking them with his foot along the floor from the lift to the office to which they were addressed. The pursuer reported the incident by phone that day to Hamish Rodger, a fellow employee. He continued to suffer pain in his back, but attempted to continue to work. On or about 24 April 2000, he experienced further acute pain in his back whilst unloading boxes for delivery at Edinburgh Royal Infirmary. The pursuer telephoned Andrew Herriot, a fellow employee, for assistance in making the delivery. He did not receive any such assistance. On his return to the defenders' depot, he reported his injury to his manager, John Blundell. The pain persisted. He consulted his GP the next day and was signed off work. The defenders' averments in answer are denied except insofar as coinciding herewith."
"State whether claim based on fault at common law or breach of statutory duty; if breach of statutory duty, state provision of enactment."
In compliance with that paragraph, the pursuer avers:
"Stat.6 The pursuer's claim is based on the defenders' fault at common law et separatim their breach of statutory duty (Reg.4 of the Manual Handling Operations Regulations 1992 (S.I. 1992/2793)). The defenders' averments in answer are denied except insofar as coinciding herewith."
[6] The case came before the Vacation Court on 13 August 2003 on the pursuer's motion for a jury trial in terms of rule 43.6(5)(c). The defenders opposed the motion.
Submissions for the defenders
[7] Counsel for the defenders submitted that issues should be refused, and a proof allowed. It was accepted that the test for refusal of issues had been unaffected by the new personal injuries rules. The defenders had to demonstrate special cause.[8] Despite the new abbreviated pleadings required by rule 43.2(1), the pursuer still had to aver all the facts relevant to the claim. That was the case, even although there was no requirement to aver any duties in law, or to add pleas-in-law. Reference was made to Lord Justice-Clerk Thomson at page 261 in Boyle v Glasgow Corporation, 1949 S.C. 254. The present case was unsuitable for issues in two respects: the circumstances of the two accidents relied upon; and the difficulty in assessing loss.
[9] The circumstances of the two accidents: The pursuer's claim was based on two accidents. While the pursuer averred considerable detail in relation to the first accident on 5 March 2000, there was very little detail about the second accident on 24 April 2000. In particular, there were no averments about the nature, number and weight of the boxes which the pursuer was unloading on that date. Despite the new rules of court, it was still necessary for the pursuer to aver all the facts upon which the claim was based. In the present case, there were insufficient facts averred in relation to the April accident to found a claim either in terms of the Manual Handling Operations Regulations ("the regulations"), or at common law. The difference between a manual handling claim and a common law claim had been discussed in Hall v Edinburgh City Council, 1999 S.L.T. 744, a case in which the Lord Ordinary found sufficient relevant averments to support a regulations case, but not a common law case. To be able to found upon common law - even under the new abbreviated procedure - a pursuer had to aver sufficient facts and circumstances giving rise to the reasonable foreseeability of injury: cf. Robb v Dundee District Council, 1980 S.L.T. 91, at page 92; Nisbet v Chief Constable, Strathclyde Police, 2003 S.L.T 634. That had not been done in respect of the second accident. Similarly to be able to found upon the regulations, the pursuer had to aver facts and circumstances establishing a risk of his being injured: cf. Taylor v City of Glasgow Council, 2002 S.C. 364, paragraphs [11] - [12]. However, all that was averred was that in April 2000 the pursuer had been lifting boxes. There could be many circumstances (for example, if the boxes were empty) when there would be no risk of injury.
[10] Further, it was not clear from the facts averred whether the pursuer's case was based on lack of training, or lack of safe system, or lack of lifting equipment. A similar criticism could be made of the pursuer's statutory case. The lack of basic factual ingredients would make it difficult to charge a jury: cf. O'Malley v Multiflex (UK) Inc, 1997 S.L.T. 362.
[11] Counsel for the defenders expressly conceded that the pursuer had averred more detail in relation to the first accident in March 2000, and that the averments in relation to that first accident were sufficient both in terms of the new rules and in terms of providing facts upon which the pursuer could base cases at common law and under the regulations.
[12] Difficulties in assessing loss: Counsel for the defenders submitted that there would be difficulties in assessing loss. First, there was the interaction between the two accidents. The jury might find the defenders liable in respect of the first accident, but not the second. That would give rise to difficulties in assessing causation and loss. Secondly, the defenders averred that the pursuer had significant degenerative changes in the lumbar spine. Accordingly the jury would be asked to assess to what extent either of the two accidents had contributed to the prolapsed disc: cf. dicta of Lord Cameron of Lochbroom in Pietryea v Strathclyde Regional Council, 1998 S.L.T. 184. There was a risk that the jury would be confused, and that there would be a miscarriage of justice. Thirdly, the pursuer had, in compliance with the new personal injuries rules, lodged a statement of value of claim. That statement supplanted the pleadings so far as quantum was concerned. Past wage loss was stated to be at the rate of £800 net per month. However future wage loss was stated to be at the rate £400 net per month, with a multiplier of 17. The difference between £800 and £400 was not explained. In relation to past services, the pursuer had entered "s.9 - tradesman and pursuer's wife". But section 9 did not extend to tradesmen. There was also a claim for future services, and it was not clear whether the error was repeated in that claim. Under previous procedure, the averment would have been excluded from probation as irrelevant, but that was apparently not an option available under the new procedure. Nor was there any provision in the new rules for further amended statements. Accordingly, the pursuer's statement would go to the jury as it stood.
[13] Counsel submitted that, taken singly and cumulatively, these factors gave rise to special cause. Issues should be refused.
Submissions for the pursuer
[14] Referring to Graham v Paterson & Son, 1938 S.C. 119, counsel for the pursuer contended that the established law relating to special cause continued to apply. The pursuer's case was in essence a simple one: he had hurt his back when lifting boxes from the back of a van. It was a simple matter, which a jury could easily follow.[15] The defenders' arguments displayed a misunderstanding of statement 4. Statement 4 should be read as a whole. The pursuer averred that he was employed as a van-driver, having to unload and deliver heavy boxes, without assistance, training, or a trolley. That was the background against which each incident should be viewed. It was significant that there was no complaint about the relevancy or specification of the first incident. The defenders' attack focused solely on the second incident.
[16] The averments on record were sufficient for reasonable foreseeability. The pursuer averred that he suffered pain and injury as a result of the first incident. That pain continued for some time. Then on 24 April 2000, he was caused further acute pain. Each of the incidents therefore caused pain which culminated in the diagnosis of his injury. Judged against previous standards of relevancy and specification, the averments (particularly those relating to the second incident) might be open to criticism. But previous standards of relevancy and specification no longer applied. The new rules introduced a different pleading culture, and demanded brevity in the statement of facts. Accordingly it was inappropriate to criticise the pursuer's pleadings as lacking in specification. The pleadings gave the defenders adequate notice of the incidents complained of. The pleadings complied with the new rules.
[17] Statement 6 in the pursuer's summons complied with paragraph 6 of form 43.2-A. All that the pursuer had to do was to state the statutory provision upon which he relied. The pursuer could not be criticised when the new rules demanded brevity. The same could be said of the pursuer's common law case. All that the pursuer had to aver was whether the claim was based on fault at common law. In a proof under the new rules, heard by a judge sitting without a jury, the court would presumably hear arguments after evidence had been led. In a civil jury trial under the new rules, the judge, when charging the jury, would have the assistance of counsel's speeches in addition to the facts led in evidence. The whole point of the new rules was that old standards of specification no longer applied. If the court were to refuse issues because the averments on record were insufficient, that would in effect require parties to give the same degree of specification which previous practice had required. The pursuer should not have the brevity of the pleadings held against him when seeking to exercise his statutory right to jury trial. What was required was a change in attitude to pleadings.
[18] Responding to the defenders' arguments in relation to quantification of loss, counsel submitted firstly that quantification was a matter for a jury: Shaher v British Aerospace Flying College Ltd., 2003 S.L.T. 791 at paragraph [6]. The jury would be able to assess the medical evidence relating to the two accidents, and to make discriminating decisions about factual evidence and medical evidence. Secondly, the question of a previous degenerative condition was something which juries, assisted by medical opinion, were capable of assessing: cf. Pietryea v Strathclyde Regional Council, cit. sup., and Devanney v Yarrow Shipbuilders, 1999 S.L.T. 561. Thirdly, the pursuer's statement of value of claim was not a final assessment of the pursuer's quantification. It was merely an early outline of his valuation. Such a statement was not to be treated with the same degree of precision as pleadings. The statement was a means to facilitate settlement discussions (for example, at pre-trial meetings in terms of rule 43.10), and was not intended as a final document. It was therefore inappropriate to criticise the pursuer for imprecision.
[19] Counsel invited the court to conclude that the grounds advanced by the defenders did not, either singly or cumulatively, amount to special cause such that the pursuer should be denied his statutory right to jury trial.
Opinion
[20] I do not accept that the interaction between the two incidents, or between the incidents and any pre-existing degenerative condition, makes this case unsuitable for jury trial. In my view, statement 4 properly construed describes an initial back injury followed by a second incident which exacerbated that injury. On such an approach, I consider that the jury, assisted by medical evidence relating to the consequences of the incidents and to any contribution made by a pre-existing degenerative condition, would be well able to assess causation and to quantify damages appropriately. Further, on such a construction of statement 4, the defenders' concession that the pursuer has averred sufficient factual detail in relation to the first incident would appear prima facie to answer many of the defenders' complaints.[21] The discrepancy between past wage loss (£800 net per month), and future wage loss (£400 per month) is something which can in my view be clarified in the course of pre-trial preparations and discussions, including the lodging of vouching documentation and any pre-trial meeting in terms of rule 43.10. As for the erroneous reference to a tradesman, occurring in the services section of the statement of value of claim, it may be that counsel for the pursuer would seek to lead evidence about the cost of a tradesman under another heading, such as "Needs and Other Expenses". Practice Note No.2 of 2003 (14 March 2003) provides that a statement of value of claim is not binding upon the party making it. In any event, for such a minor issue, it might be possible for the judge to take the rather unusual step of requesting the jury to withdraw for a short period, and in their absence clarifying and if necessary ruling upon the question of the cost of the tradesman.
[22] However, there are two more major matters raised in the defenders' arguments which cause me to doubt the suitability of this case for jury trial. One is the broad reference to "Reg.4 of the Manual Handling Operations Regulations 1992", without any indication as to which paragraph or paragraphs of regulation 4 is or are relied upon. The second matter is the lack of factual averments from which could be drawn any inference of reasonable foreseeability of injury at common law.
[23] Whilst it is accepted that the new rules seek to introduce a different pleading culture, and whilst it is accepted that, as a direct result of the rules, concise pleadings (which might fail to satisfy former tests of relevancy and specification) may now satisfy the rules and therefore be deemed suitable for proof in terms of rule 43.6(5)(b), nevertheless rule 43.2(1)(a) requires averments of those facts "necessary to establish the claim". Moreover the practicalities and formalities of a jury trial as distinct from a proof are such that the views of Lord Justice-Clerk Thomson in Boyle v Glasgow Corporation, 1949 S.C. 254, at page 261, still have considerable force. As he observed:
"When a case is to go to proof before a judge, there is perhaps no great necessity for over-strictness [in relation to pleadings]. The judge can always allow a certain latitude, and when his patience is exhausted, he can indicate that an amendment is desirable, and, if the amendment is of a substantial character, there is room for adjournment or for facilities for allowing further evidence. But [in a] jury trial, very different considerations obtain. A properly drawn record is essential for jury trial, and the points at issue ought to be clearly focused. One wants to avoid wrangling as to the admissibility of evidence. That is undesirable in itself, and sometimes operates prejudicially against the party taking objection. In jury trials, there is little scope for amendment and none for adjournment. Mistakes may be fatal. It seems to me that it is in the interests of all parties that the relevant and substantial points should be stated and clearly stated in the record, and that the facts
relied upon, the grounds of action and the pleas-in-law should be adequately presented ... The function of a record is to convey what the case is about, and to make the legal issues clear, and it is really intolerable that it should be left to the court, with the assistance of counsel, to try to extricate from the averments what the points in the case are."
Similar observations were made in Moore v Stephen, 1954 S.C. 331, at page 334; Maxwell, Court of Session Practice, pages 297-298; and Hajducki, Civil Jury Trials, paragraphs 2-27 et seq.
[24] It has to be remembered that there is no hearing on evidence in a civil jury trial. There is little or no opportunity before the speeches and the judge's charge for counsel or the judge to debate and clarify the legal import of evidence proposed to be led, or actually led. Hence the principle, well-established over years of practice, that there should be no unresolved questions of relevancy or specification in any case going before a jury. The rather unusual procedure suggested in paragraph [21] above in relation to the minor point about the tradesman's services (namely, asking the jury to withdraw, having a brief legal discussion and if necessary a ruling by the court) could not accommodate more major disputes about fundamental aspects of the case.[25] The pursuer founds upon "Regulation 4 of the Manual Handling Operations Regulations". But it is not clear from the pleadings whether the pursuer contends -
(a) that it was reasonably practicable for the defenders to avoid the need for the pursuer to undertake any manual handling operations at work which involved a risk of his being injured: regulation 4(1)(a); or
(b) that such operations being unavoidable, the defenders failed to make a suitable and sufficient assessment of all such operations, having regard to the factors specified in column 1 of Schedule 1 to the regulations, considering the questions specified in the corresponding entry in column 2 (thus having to consider matters such as posture, the risk of sudden movement of loads, frequent or prolonged physical effort, and the nature of the loads themselves - for example, whether they are heavy, or bulky or unwieldy, or difficult to grasp): regulation 4(b)(i); and/or
(c) that the defenders failed to take appropriate steps to reduce the risk of injury to employees such as the pursuer engaged in manual handling operations to the lowest level reasonably practicable: regulation 4(b)(ii).
[27] It is of course possible that all of the above matters, relating to both the statutory case, and the common law case, might be clarified in the course of the trial by the evidence which the pursuer's counsel chooses to lead, and by the content of his jury speech. But two observations can be made. First, in the course of a jury trial, evidence is led before the court has the benefit of any counsel's jury speech. It may therefore be difficult for the judge to rule upon an objection to evidence made during the trial. (By contrast, in a proof before a judge sitting alone, it is easier for the judge to allow evidence under reservation of all questions of competency and relevancy, as any material ultimately ruled irrelevant or incompetent is simply excluded from the judge's consideration at the end of the proof). Secondly, many jury speeches made on behalf of the parties tend to focus on the facts of the case, with only a brief reference to the law coupled with an assurance that the judge will in due course instruct the jury on the law. It is therefore quite possible that the case could reach the stage of the judge's charge without any opportunity to have the pursuer's case in law sufficiently clarified or defined.
[28] While it is true that the new rules invite a different approach or culture, and consequently what might be termed a more relaxed approach to pleadings and to any objections taken in the course of evidence, nevertheless it seems to me inappropriate and unfair - not only from the point of view of the defenders, but also from the point of view of the judge who has to charge the jury - that a pursuer should be able to lead evidence at large before the jury, about matters which might or might not be relevant, without at least some warning being given to both the defenders and the judge by way of brief factual averments. The matter is a fortiori in a case such as the present, which concerns the lifting of loads, as reasonable foreseeability at common law arguably constitutes a different and more demanding test for the pursuer to satisfy than the requirements imposed by the regulations: cf. Lord Macfadyen in Hall v City of Edinburgh Council, 1999 S.L.T. 744, at page 746H-L. See too dicta of Lord Jauncey in Robb v Dundee District Council, 1980 S.L.T. (Notes) 91:
"Foreseeability falls to be determined from facts and circumstances, and if no such facts and circumstances are averred, foreseeability cannot be established."
In the present case, despite the concessions made by counsel for the defenders in relation to the first accident on 5 March 2000, I have been unable to identify factual averments which would entitle the pursuer to lead evidence establishing a basis for the contention that his employers ought reasonably to have foreseen that the pursuer would be likely to suffer injury in the circumstances prevailing on 5 March 2000.
Conclusion
[29] For the reasons given above, I am satisfied that there is special cause for withholding this case from a jury. I shall refuse the pursuer's motion for issues and allow a proof. In so doing, I recognise that there is a degree of conflict between, on the one hand, the new personal injuries rules (which encourage and indeed demand brevity in pleadings), and on the other, the formalities and practicalities of a civil jury trial.