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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Elwis v. Consignia [2004] ScotCS 160 (16 June 2004)
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Elwis v. Consignia [2004] ScotCS 160 (16 June 2004)

OUTER HOUSE, COURT OF SESSION

A873/02

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD REED

in the cause

ALISTER ELWIS

Pursuer;

against

CONSIGNIA (FORMERLY PARCELFORCE WORLDWIDE)

Defenders:

 

________________

 

 

Pursuer: McGregor; Simpson & Marwick, W.S.

Defenders: Connal, Q.C.; McGrigor Donald

16 June 2004

 [1]      On 16 June 2004 this case came before me on procedure roll. Mr Connal for the defenders sought to have the defenders' second plea-in-law sustained to the extent of having the pursuer's averments of loss of earnings and pension loss excluded from probation, as being irrelevant et separatim lacking in specification. Alternatively, Mr Connal sought to have the defenders' third plea-in-law sustained, to the effect that the case was unsuitable for jury trial and that issues should therefore not be allowed. On behalf of the pursuer, Mr McGregor sought to have all the defenders' preliminary pleas repelled (including a general plea to the relevancy and specification), and issues allowed. After hearing parties' submissions, I repelled the defenders' second plea-in-law (seeking to have the pursuer's averments excluded from probation) and the defenders' third plea-in-law (that the action was unsuitable for jury trial), and allowed a proof before answer. I delivered a short ex tempore Opinion. I was subsequently informed that a reclaiming motion had been enrolled, and that a written Opinion was therefore required.

[2]      The action is one of damages for personal injuries resulting from a road accident which occurred on 17 December 1999. Liability is admitted. The pursuer avers that he sustained a dislocation of his right elbow with a fracture of the radial head on the right side. He was in a great deal of pain. He was unable to return to work until 26 January 2000. At that time, he remained unable to extend his elbow fully. His elbow continued to give him pain. It was thought that he had developed early symptoms of arthritis. He was advised to cut down his level of activity. After treatment, which did not help, he underwent surgery on 6 August 2001 to remove a number of loose bodies from his elbow. It is averred that he continues to suffer pain and disability as damage to his elbow has led to degenerative changes. It is averred that this condition is permanent and will worsen over time.

[3]      The pursuer's averments in support of his claim for pecuniary loss are as follows:

"At the time of the accident the pursuer was employed as a Transport Manager with Len Lothian Limited in Edinburgh. His employment involved heavy lifting and man handling of property, work he is now unable to do. The pursuer was absent from his employers, Len Lothian Limited, for a six week period following the accident. During this time he was paid his basic wage but missed out on overtime, details of which will be provided. Following his return to work the pursuer found the manual element of his job too hard. As a result of pain in his elbow the pursuer left Len Lothian in about August 2001 to find lighter work. As at April 2001 his salary was £22,000 gross. In August 2001 the pursuer commenced employment with Hoults Removals, Glasgow as a Branch Manager. His salary was £22,000 gross. Although this employment required less manual handling and heavy lifting the pursuer was unable to maintain the position as a result of an inability to undertake the administrative part of the work satisfactorily. This was due to the pursuer suffering from dyslexia pre-dating the accident which causes significant disability in terms of his ability to carry out administrative functions. As a result Hoults decided to downgrade the pursuer to an Operational Manager. This would have resulted in lower earnings. Accordingly the pursuer sought alternative employment. In January 2002 he moved to White & Co, Removers, in Dunfermline. He was employed as a Branch Manager. This involved no significant manual work. In March 2002 the pursuer was removed from his post again through an inability to cope with the administrative tasks forming part of the job. The pursuer asked to be retained by White & Company as an estimator and he was employed in this role at a salary of £16,000 gross. The pursuer found this employment difficult due to his dyslexia and in about September 2002 was sacked without explanation. The pursuer then started work as a Farm Labourer, working through the Ring Link Agency based at 8 High Street, Laurencekirk. In the first 6 months of that employment he earned £8,724.57 gross. In addition, in 2002 the pursuer was offered holiday work from R & R Wainwright to undertake ploughing, lambing, sowing and shearing over a period of 14 days, 15 hours per day at £7.00 per hour. In addition work had been offered to the pursuer on South Cassochie Farm, Methven, namely 100 hours general farm work at £7.35 per hour. Additionally sheep shearing work was available at Farm Dunninglen at Dollar at £0.70 per sheep with 200 sheep requiring to be shorn. These offers of work were likely to be made to the pursuer annually. He is unable to carry them out as a result of his elbow condition. This holiday work would realise £2,350 per annum. He has suffered and continues to suffer a loss of earnings. It is likely that by about 2010 he will be unable to continue his current heavy work. Thereafter he will be severely limited in his employment prospects on the labour market. The pursuer has also suffered loss of pension. The pursuer required to bring in a professional fencer to carry out work he would normally do at a cost of £440 plus VAT in June 2000."

 [4]      On behalf of the defenders, Mr Connal submitted that the pursuer's averments failed to set out relevantly or in adequate detail what he claimed in relation to employment loss. The context in which the adequacy of the pursuer's averments fell to be judged was:

    • His claim appeared to be primarily one for financial loss;
    • The impact of the accident was said to be on his physical abilities;
    • He was in an employment with a non-manual element, and he did not contend that his ability to perform that ability was impaired;
    • Employers had obligations under the Disability Discrimination Act to those with disabilities, and none of the pursuer's subsequent employment difficulties was said to relate to physical problems: indeed he averred that from 2002 he had been employed as a labourer.
[5]      More particularly, Mr Connal criticised the averment concerning the pursuer's leaving Len Lothian Limited. The pursuer did not aver whether alternative roles within the company were considered, or whether his position could have been adapted in any way. He did not make it clear what his role as transport manager with the company involved, other than that it had a manual element. In particular, the pursuer did not make it clear what non-manual work he carried out, and what proportion of his day involved manual or non-manual work. He had left that employment voluntarily. The pursuer then referred to his employment with Hoults Removals. He averred that he was unable to maintain the position of branch manager due to his dyslexia. He did not say what he had told Hoults about his dyslexia, or what they knew about it. He did not aver what administrative work he had been unable to undertake, or how this was different from the administrative tasks which he had managed to undertake in his previous employment. It appeared that he had been able to perform the physical tasks, but he did not aver what those were, or how they differed from those of his previous post. He averred that he had been offered the post of operational manager, but had not taken this post due to the salary level. He did not aver what his role would have involved, or what the salary would have been. He left that employment too voluntarily. The pursuer then made averments about his employment with White & Co. He averred that he had been "removed" from his post due to an inability to cope with administrative tasks. He did not aver what administrative tasks he had been required to perform, how these differed from the administrative tasks he had required to perform in his original employment, or in what way he had been unable to undertake them. He did not aver whether White & Co had been aware of his dyslexia when they took him on, or whether they had accommodated his disability in any way. He did not aver in what way the role of estimator was different from the role of branch manager. He did not aver why he found that task difficult because of his dyslexia. He did not aver that his dismissal from that employment had been linked to either the accident or his dyslexia. It was unclear what impact his dyslexia had had during his employment by White & Co. It was unclear why he had taken a post as an estimator, which was another non-manual job, having just lost two jobs as a result of his dyslexia. Although it was averred that the pursuer found this employment "difficult" due to his dyslexia, the averments did not indicate what the difficulty was, or whether his employers had found there to be a difficulty. In relation to the pursuer's work as a farm labourer, no specification was given of what he did. There was no indication that his ability to work was materially restricted. He made averments concerning offers of work. He did not aver whether he had carried out such work prior to the accident, whether he had carried out such work since the accident, or, if not, why not, given that his elbow condition had not prevented him from working as a farm labourer. He did not aver when these offers had been made. It was unclear what connection there was between the offers and the agency work. The pursuer averred that it was "likely" that by about 2010 he would be unable to continue "his current heavy work". It was unclear what precisely the pursuer would be unable to do. Given his averments about his physical disability, it was difficult to understand how he could presently be carrying out work which was described as "heavy work". He did not aver what heavy work he currently undertook, or why he would be unable to continue with it. The pursuer further averred that he had suffered a loss of pension. His averments in relation to that matter were lacking in specification.

[6]      Mr Connal further submitted that, in any event, the action was unsuitable for jury trial. That submission was based partly on the points already made concerning the relevancy and specification of the pursuer's averments and, in addition, on the complexity of the relationship between physical ability and physical impediment on the one hand, and dyslexia on the other hand.

[7]      In support of these submission, Mr Connal cited the well-known observations of Lord Justice-Clerk Thomson in Boyle v Glasgow Corporation, 1949 SC 254 at p. 261:

"I cannot help feeling that during the period when jury trials have been in abeyance there has been a considerable degree of laxity in the drawing of records in the Sheriff Court. Where a case is to go to proof before a Judge there is perhaps no great necessity for over-strictness. 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, when a case is remitted from the Sheriff Court to this Court for jury trial, very different considerations obtain. A properly drawn record is essential in a 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 on, the grounds of action and the pleas-in-law should be adequately presented. Now the juries have returned, it is of the first importance that, when a case is remitted for jury trial, it should have a proper record."

Mr Connal also cited Gillies v Lynch, 2002 SLT 1420. In that case, a mother sought a claim for loss of society in respect of the death of her daughter in a road accident. She averred that, after hearing of her daughter's death, she suffered from a pathological grief reaction and severe depressive disorder. In opposing the pursuer's motion for issues, the defender argued that the pursuer's averments were of doubtful relevancy as supporting a claim for loss of society, in that there was an important distinction between grief and sorrow caused by bereavement and recognised psychiatric injury. The Lord Ordinary, Lord Macfadyen, held that the averments were relevant and allowed issues. Mr Connal cited, in particular, paragraph 16 of the Lord Ordinary's Opinion, at page 1423:

"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."

Mr Connal submitted that, in the present case, the interplay between the pursuer's pre-existing condition of dyslexia, and the physical disability resulting from the accident, in relation to questions of causation and remoteness of damage, were potentially of such complexity that a jury trial would be inappropriate.

[8]      In reply, Mr McGregor on behalf of the pursuer invited the court to repel the defenders' first, second and third pleas-in-law and to allow issues. Alternatively, he invited the court to repel the defenders' second plea-in-law, to sustain the third plea-in-law and to allow proof before answer.

[9]      Mr McGregor submitted that the defenders' arguments in relation to specification and relevancy, and in relation to the allowance of issues, were much the same. The pursuer's averments in respect of the quantification of damage were relevant. A jury was more than capable of dealing with the heads of loss as averred. The argument was that the averments in respect of loss of earnings were irrelevant, on the basis that there was no obvious causal connection between the accident and what had happened to the pursuer in his various employments since the accident. The position, however, was perfectly clear and straightforward. The averments made clear the causal connection between the accident and the pursuer's leaving Len Lothian Limited. It was a matter for a jury to decide whether a pursuer was reasonably entitled to leave that employment. The pursuer's leaving that employment sparked the causal connection between the accident and all that flowed thereafter. So far as the dyslexia was concerned, if the initial injury led the pursuer to give up his pre-accident work, all that flowed thereafter in terms of his employability must be relevant. So far as the pursuer's employment with Hoults Removals was concerned, there was no lack of specification as to how the dyslexia had adversely affected the pursuer's ability to carry out administrative work. The problem was obvious. It was well capable of being dealt with by a jury. There was no need for the pursuer to aver his exact job description and to aver a medical definition of dyslexia. So far as the pursuer's subsequent employments with White & Co, and as a farm labourer, were concerned, there was nothing difficult or complex. The pursuer had averred all that had happened in terms of his employment, and had done so adequately. A jury would be able to assess how the pursuer's labouring jobs, and what he was or was not able to do, married up with the difficulties that he had experienced in his pre-accident employment. So far as the offers of work were concerned, the pursuer had given sufficient notice, and had made it clear that he had been unable to carry out the work offered to him. So far as the claim for loss of pension was concerned, clear notice was given of the pursuer's case. Sufficient specification had been given to enable a jury to determine the pension loss. The loss of pension was consequential on the cessation of contributions by the employer after the pursuer had left that employment. The contributions would otherwise have continued for as long as he remained in their employment. He would have done so, but for the accident, until normal retirement age. He would therefore have qualified for the receipt of a pension from the normal date of retirement.

[10]      In support of these submissions, Mr McGregor cited the Opinion of the Lord Ordinary, Lord Gill, in O'Malley v Multiflex (UK) Inc, 1997 SLT 362 at page 363, where the Lord Ordinary observed:

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

Mr McGregor distinguished the pleadings in the present case from those which the Lord Ordinary found to be of doubtful relevancy in the case of O'Malley. I was also referred to the Opinion of Lord Eassie in Currie v Strathclyde Regional Council Fire Brigade 1999 SLT 62, in which issues were allowed. In connection with the pursuer's claim for loss of pension, Mr McGregor referred me to the Opinion of Lady Paton in Graham v Dryden, 23 July 2002.

[11]      In a brief reply, Mr Connal submitted that the decision of Lady Paton in the case of Graham had been incorrect. Contrary to what her Ladyship had said, a pursuer who claimed for loss of pension should aver whether or not she had joined another pension scheme after leaving her pre-accident employment. Perhaps more significantly, Mr Connal emphasised that difficult issues might arise in the present case in law as well as in fact, as to the extent to which the pursuer's difficulties since the accident were attributable to the accident or attributable to his pre-existing disability. It was not clear from the pursuer's averments to what extent his pre-accident employment had involved administrative duties, on the one hand, and physical duties, on the other hand. There was a similar lack of clarity so far as his subsequent employments were concerned.

[12]      I decided to repel the defender's second plea-in-law, but to sustain the third plea-in-law and to allow a proof before answer. I expressed my reasons as follows.

[13]      Without doing an injustice to Mr Connal's submissions, it could be said in broad terms that they had focused on two principal issues: first, a lack of specification in the pursuer's averments of loss of earnings and pension loss; and secondly, an issue as to the relevancy of the pursuer's claim for loss of earnings, insofar as certain of his post-accident employments had been terminated, at his own hand or otherwise, as a result of difficulties occasioned by a pre-existing condition of dyslexia. In the context of whether issues should be allowed, the second matter had been described as giving rise to a difficult question of causation, requiring the case to be sent for proof before answer rather than for jury trial.

[14]      So far as the first issue was concerned, the pursuer's averments appeared to me to be sufficiently specific. The functions of pleadings was to give fair notice of the case the pursuer intended to establish at proof or trial by means of evidence. It was not necessary to plead the evidence, or to plead the case in greater detail than was necessary for the purpose of providing fair notice. Mr Connal's argument was perhaps strongest in respect of the claim for loss of pension, and that was perhaps a fair example to illustrate the point. The implication of the pursuer's averments was that in his pre-accident employment, which he had required to give up as a result of the accident, he had been a member of a non-contributory pension scheme, under which his employer contributed 5% of the pursuer's gross earnings. The pursuer's gross salary was specified in the pleadings. He averred that he had suffered a loss of that pension entitlement as a result of the cessation of that employment. There was no suggestion in the pleadings that he had become a member of any pension scheme in his subsequent employments; nor was it suggested that he would have left his pre-accident employment (but for the accident) prior to the normal retirement age. Clearly, much more information would be required to enable the claim to be quantified. That information would have to be provided in evidence, if this element of the pursuer's claim were to be upheld. Some of that information (eg as to the conditions of the pension scheme) could be recovered by the defenders in advance of proof or trial by commission and diligence. It might be that, in the light of the evidence, the pursuer was unable to prove his claim. What was averred however gave fair notice of the pursuer's claim.

[15]      So far as the second matter was concerned - that is to say, the relevancy of the pursuer's claim for loss of earnings, and the related question whether issues should be allowed - I noted at the outset that no issue was taken by the defenders in their pleadings as to causation or as to the mitigation of loss. No positive case was put forward by the defenders: they merely put the pursuer to the proof of his case and were entitled to challenge, by cross-examination, the evidence which he led in support of his case. The pursuer's case, in outline, was that as a result of the accident he had required to leave his employment, as he was physically unfit for the heavy lifting which it involved. He had thereafter attempted to mitigate his loss by finding other employments for which he thought he would be better suited, but a number of those employments had proved unsuccessful because of his pre-existing dyslexia. In other words, although physically fit for lighter work, several of the lighter jobs which he had attempted had involved administrative tasks for which he was unsuited. No possible alternative explanation for his losing the subsequent jobs was suggested by either party. The pursuer averred that he had more recently been doing labouring jobs through an agency, but would not be able to continue such work beyond about 2010.

[16]      There did not appear to me to be any question as to the relevancy of such a claim. The pursuer would of course require to prove it. If, on the evidence, there remained a question as to whether the loss of the various jobs was the result of the pursuer's pre-existing unfitness for administrative work resulting from dyslexia, a jury would require to be directed as to how to determine whether the chain of causation had been broken. When the jury came to determine the amount to be awarded in respect of the pursuer's inability to continue his current work after 2010, they would require to be directed as how to take into account, in assessing his future employment prospects, the fact that those prospects were limited not only as a result of the accident but also as a result of the pre-existing disability. On the other side of the equation - when determining what the pursuer's earnings would have been if no accident had taken place - the pursuer would hope to prove that he would have remained in the employment of Len Lothian Limited until the normal retirement age. If on the evidence there remained a question as to that - and in particular, as to whether his difficulties in coping with administrative tasks might have been relevant in that context - the jury would require to be directed as to how the pre-existing disability might require to be taken into account. There were thus a number of respects in which the interplay between the dyslexia and the physical injury caused by the accident might complicate the assessment of damages, requiring a jury to be given directions bearing on causation and, possibly, other legal issues (such as remoteness of damage and mitigation of loss). In that situation, it appeared to me to be possible that the pre-existing disability might (depending on how the evidence emerged) give rise to issues which were too complex to be resolved satisfactorily by a jury. That could not be predicted with certainty at the present stage: it would depend on how matters emerged in the evidence, including any challenge to the pursuer's case by way of cross-examination. The court could not allow a jury trial in a situation where issues might arise at the trial which could not be satisfactorily resolved by a jury. In those circumstances, it appeared to me that the appropriate course was to allow a proof before answer.

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