Scottish Court of Session Decisions

Forrest v. Gourlay [2003] ScotCS 83 (21 March 2003)

OUTER HOUSE, COURT OF SESSION
A1618/00	OPINION OF T. G. COUTTS, Q.C. Sitting as a Temporary Judge in the cause KRIS FORREST Pursuer; against CAROLINE GOURLAY Defender:   ________________

 

 

Pursuer: Love; Digby Brown, S.S.C. (for Cassels, Solicitors, Glasgow)

Defender: G. Clarke; Simpson & Marwick, W.S.

21 March 2003

1. This is an action in which the pursuer sues for £100,000 for injuries sustained in a road traffic accident on 12 October 1997 when the pursuer's scooter was struck by a motorcar driven by the defender. The pursuer sought a jury trial, the defender a proof before answer on the question of damages.
2. In terms of the Court of Session Act 1988 the Lord Ordinary may allow a proof instead of a jury trial if special cause is shown in an action of damages for personal injury. The law in relation to that matter is well known and need not be rehearsed further than stating that the cause has to be special to the case and that it is for the defender, on a review of the whole pleadings, to demonstrate that special cause exists. It was reaffirmed in Robertson v Smith 2000 S.C. 591I that "the decision as to the appropriate mode of enquiry is clearly one in which the Lord Ordinary exercises a discretion". An accurate summary of the general considerations relating to special cause can be found in Mr Hajducki's book entitled Civil Jury Trials at pages 34 to 35. Counsel were agreed as to the law applicable.
3. In this action the pursuer sustained various physical injuries including a laceration over his right knee, a dislocation of the right shoulder, a fracture of the greater tuberosity of the right humerus and a fractured right kneecap. The pursuer avers that he was rendered unconscious by the accident. He describes the treatment he underwent as a result of the said physical injuries and avers that he is likely to develop arthritis in about fifteen to twenty years.
4. His averments continue thus:-

"The pursuer has also suffered epilepsy as a result of the accident. He has suffered seizures from about six months after the accident. He has had approximately twenty seizures, which result in a loss of consciousness and confusion and disorientation for about two hours at a time. He has suffered injuries when this occurs, and has damaged his tongue during the attacks by biting it. He receives anti convulsant medication. He has had investigations regarding the seizures at the Western Infirmary in Glasgow, and in the Institute of Neurological Sciences in Glasgow. Although largely under control by medication, he wishes to stop the medication on medical advice. There is a risk of the epilepsy returning, if he does so, of 25%. Should that occur, he will require to surrender his driving licence for a minimum of one year and remain on medication for the rest of his life."

5. The defender's pleadings read:-

"As a result of the accident, the pursuer sustained a mild head injury. There was no loss of consciousness at the time of the accident. Mild head injury is not associated with an elevation in (sic) the risk of subsequent epilepsy. Epilepsy is a very rare result of such injuries. On 22^nd October 1998 the pursuer underwent brain wave recording in the form of electro-encephalogram (EEG). The results were normal. a CAT brain scan was also normal. On 5^th March 1999 the pursuer underwent a sleep-deprived EEG. The results of this EEG under provocation did not confirm epilepsy. Esto the pursuer has developed epilepsy, it is improbable that the mild head injury is the cause of the epilepsy. The cause of adult onset epilepsy in many cases is unknown. Other considerations, unrelated to the accident, are relevant to a diagnosis of epilepsy in the pursuer. The pursuer has an excessive alcohol intake. Prior to the accident, the pursuer was consuming approximately 30 units of alcohol per week. Alcoholic intake at this level can contribute to the development of epilepsy. Since the accident on 12^th June 1998, the pursuer sustained a seizure which is likely to be related to an excess of alcohol. The pursuer had previously been drinking alcohol excessively whilst watching football on T.V. Further, the pursuer had an episode of loss of consciousness preceding the accident. On 23^rd December 1995, he collapsed at Central Station, Glasgow. He fell, sustaining a minor head injury. On the previous day, the pursuer had consumed an excessive amount of alcohol. He had consumed approximately 50 units of alcohol over the course of 16 hours. As a result of the collapse, he required to be taken to Glasgow Royal Infirmary by ambulance. A possible diagnosis of a major epileptic seizure was investigated. Such a diagnosis remains a possibility."

6. When the case appeared at procedure roll the pursuer had no response in his pleadings to the defender's averments above quoted. He amended in the course of the debate to add an averment that the defender's averments in answer were denied except insofar as coinciding with his own.
7. The comment arises at this stage that the pursuer has plainly not dealt with the defender's averments in any appropriate way despite many of them being within his own knowledge.
8. Since he has denied the defender's averments, each and all of them remain in issue. He has neither explanation nor concession in relation to the events preceding and subsequent to the accident which the defender avers are related to his condition. It will be difficult therefore for him to lead detailed evidence in chief to deal with the defender's case, or indeed properly to found his own case.
9. The defender contended that there was a sufficient number of complicated issues which could arise in the exploration of the pursuer's alleged epilepsy to cause prejudice and to make it difficult to give proper directions to a jury.
10. The defender's counsel contended that the issues are (1) whether the pursuer has epilepsy at all, (2) if so whether that arose before date of the accident, (3) further whether it was caused by the accident in any event, it having manifested itself on the pursuer's own averments some six months after the accident, and (4) whether the pursuer's lifestyle might provide a explanation of any development of epilepsy. Evidence will require to be led about whether or not the pursuer lost consciousness and whether or not he sustained a mild head injury. The pursuer has no averments about head injury other than the averment about loss of consciousness which is not specific as to time or extent. It is plain on the pleadings, all of which are merely denied, that the causation of epilepsy and the causes of onset of epilepsy in adults together with the other considerations will require exploration and a review of the statistical and epidemiological basis for the defender's averments and the pursuer's denial of the defender's averments. The pursuer argued that his statutory right to jury trial could not be taken away by mere complexity of medical evidence. He prayed in aid the dictum of Lord Gill in Irvine v The Balmoral Hotel (Edinburgh) Limited quoted by Lord Clarke in Dr Margaret King v Eric Negro, which stated:

"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 commonly 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 S.L.T. (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." (My underlining.)

Other instances were an unreported decision of Lady Paton in Graham v Dryden 23 July 2002 and the decision of Lord MacLean in Gibson v McAndrew Wormald & Co. Limited 1998 S.L.T. 562.

11. On the other hand the pursuer cited other reported cases including Lord MacLean in McInnes v Kirkforthar Brick Co. Limited 1998 S.L.T. 568 and a decision of my own, Kennedy v Forrest-Jones 2001 S.L.T. 630.
12. All these are merely instances. The cause which has to be special and has to be shown by the defender must relate to the particular case and to the pleadings in that case. Accordingly generalities about whether or not complicated or complex medical questions are or are not special cause are of little assistance. What the court must do is to look at the particular case before it and, as best it can, make a judgment as to whether or not in the particular case a jury trial is appropriate having regard to the pursuer's statutory right. In none of the cases cited by the pursuer was there such a clear and conflicting position set out by the defenders to which no response whatsoever was made by the pursuer. In the present case it seems likely that, had the case been properly pled, the pursuer could have limited the issues which require to be determined. He has not done so and as a result has left open for enquiry a range of factual statistical and opinions which create uncertainty and would necessitate the formulation of many directions to a jury about what appears to me to be a multiplicity of possible situations. These arise in relation to the actual disability, whether the pursuer suffers and, if so, how much he does suffer, what caused the disability and what the effect of it is and also the relevance of preceding and subsequent events as well as the relevance of alcohol consumption to the whole medical picture.
13. In the present circumstances I consider that having regard to the state of the pleading of the matters to be determined that the defender has demonstrated that special cause does exist whereby enquiry should be by way of proof and not jury trial. I shall accordingly sustain the defender's second plea-in-law and allow a proof.