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Cite as: [2004] ScotCS 195
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Ross & Anor v Pryde [2004] ScotCS 195 (30 July 2004)
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OUTER HOUSE, COURT OF SESSION |
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A1095/03
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause ROBERT CAMPBELL ROSS and KATHLEEN ROSS (FE) Pursuers against GRAHAM PRYDE Defender
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Pursuers: D Kelly; Drummond Miller WS
Defender: A C Forsyth; The Anderson Partnership
30 July 2004
[1] This action arises out of the tragic death of a 15 year old girl, Joanne Ross ("the deceased"), in a road traffic accident on 30 April 2000. The pursuers, who are divorced, are the parents of the deceased. The defender is the driver of the car in which the deceased was travelling at the time of the accident. It is averred that he drove at an excessive speed over bumps in the road and round corners, as a result of which he lost control of the car and it left the roadway, hit an embankment, headed back to the roadway and then hit a verge and somersaulted down the road for about 80 yards, causing the deceased to sustain fatal injuries. On 7 March 2001 he pleaded guilty to careless driving at Haddington Sheriff Court and on 28 March 2001 he was fined and disqualified from driving. [2] The action called on the procedure roll on the defender's second and third pleas-in-law, the first plea-in-law (being a plea directed to the competency of the first conclusion as it was initially drafted) having been repelled by interlocutor of 10 February 2004. The defender's second plea-in-law is a general plea to the relevancy of the action and his third plea-in-law is in the following terms:"3. Separatim the pursuers' averments of loss being of doubtful relevancy et separatim including such elements of difficulty and complexity, and the action being unsuitable for Jury Trial, any inquiry allowed should be by Proof before Answer."
When he opened the procedure roll debate Mr Forsyth intimated that, under reference to plea 2 for the defender, he was asking that certain averments in condescendence 4 should be deleted as being fundamentally irrelevant, and that plea-in-law 3 for the defender should be sustained on the remaining averments, failing which, on all averments. As the submissions made in the course of the debate focused entirely upon the averments of loss made by the pursuers in condescendence 4, it is first of all necessary to consider the content of condescendence 4.
The pursuers' averments of loss
[3] The pursuers' averments of loss in condescendence 4 are as follows:"COND. IV. As a result of the death of the deceased the pursuers have suffered loss, injury and damage. The deceased was taken by air ambulance to the Royal Infirmary of Edinburgh, Lauriston Place, Edinburgh. The deceased did not regain consciousness. Her date of death was given as 1st May, 2000. The cause of her death was stated on her Death Certificate as (a) multiple injuries and (b) road traffic collision (car passenger). She satisfied the brain stem death criteria. On 2nd May, 2000 her liver and kidneys were donated for transplant. The pursuers suffered distress and anxiety in contemplation of the suffering of the deceased while at Hospital before her death. They were upset by the death of the deceased. They have suffered and continue to suffer grief, sorrow and distress. They have lost the company and companionship of their daughter. They were anxious at the Criminal Court Case. The deceased stayed with the first pursuer every weekend from Friday to Sunday. The first pursuer was absent from his employment with G. Greig, Building Contractors, Inveresk Mills Industrial Park, Musselburgh, for two weeks. On his return to work he was dismissed. His bereavement at the loss of his daughter was such that he was unable to return to work. Not until 11th September, 2003 did he obtain employment with Chimney Specialists. He was unable to continue with that employment but later in September 2003 he was able to commence part-time employment with Albert Baigain. He has attended his General Practitioner, Dr Crawford, at the Tranent Health Centre, Tranent. He suffered from bereavement reaction, stress and depression. He has suffered from significant psychological difficulties after the death of the deceased. He suffered an Adjustment Disorder and had difficulty in readjusting his life after what happened to his daughter. He has attended a Psychiatrist, Dr Riddle at the surgery. He was received counselling from a Nurse Clair there. He has had to cope with the death of the deceased along with the death of his brother in April 2001, with his wife being seriously unwell, with his inability to work and with his subsequent bankruptcy. His mood has remained low, which has been further compounded by his mother's illness. His condition is likely to persist and he will require support and medication for some time. The first pursuer incurred reasonable expenses in connection with the deceased's funeral. The funeral account was £1,816. The second pursuer has changed since the accident, which she considers has destroyed her life. She rarely leaves the house other than when working except to visit the deceased's grave at weekends. She retreats to her room and goes to bed at about 7 p.m. She was working at the Restaurant at Surgeon's Hall, Edinburgh, when Police Officers informed her of the accident and took her to the Royal Infirmary of Edinburgh. After the accident she left the Restaurant since she felt she could not cope there as Police Officers occasionally came in. She has since worked as a Cleaner. She attended at her General Practitioner, Dr Murray, Dalkeith Medical Practice, 24-36 St. Andrew Street, Dalkeith. She was depressed and was given medication. She has difficulty sleeping. She has no libido. She often thinks of what happened to the deceased. She suffers from bereavement reaction. She suffers from depression which is a Major Depressive Disorder of moderate intensity in terms of DSM-IV. She is reluctant to attend for psychological help since she cannot afford to be absent from work. Psychological treatment is available for the second pursuer privately outwith working hours. In the circumstances the sum sued for is a reasonable estimate of the pursuers' loss, injury and damage".
Submissions for the defender
[4] Mr Forsyth made three principal submissions on behalf of the defender. The first was that the wage loss claims were irrelevant, or at least of doubtful relevancy. The second was that the averments under section 1(4)(a) of the Damages (Scotland) Act 1976 ("the 1976 Act") were irrelevant, or at least of doubtful relevancy. The third was that the present and future grief claims of both pursuers were of doubtful relevancy through lack of fair notice. His two subsidiary submissions related to the issue of complexity. The first was that, as the defender had pleaded a case of contributory negligence against the deceased on the basis of her failure to wear a seat belt and offered to prove that, had she been wearing a seat belt, she would not have sustained fatal injuries, the plea of contributory negligence introduced complexity, rendering a jury trial inappropriate. The second subsidiary submission was that complexity arose from the averments about causation of the first pursuer's psychological difficulties under his claim for grief and sorrow. It was essential that all issues of relevancy should be decided before a jury trial took place: per Lord Justice Clerk Thomson in Boyle v Glasgow Corporation 1949 SC 254 at 261, and in Moore v Stephen & Son 1954 SC 331 at 333-334. [5] Dealing first with what he described as the wage loss claims, Mr Forsyth submitted that these were irrelevant and ought to be deleted. There was no entitlement on the part of either pursuer to claim for wage loss in this action. The only relevant claims open to them were under section 1(4) of the 1976 Act. There was no claim for loss of support under section 1(3) of the 1976 Act. The restricted nature of a claim by a surviving relative in a death action such as this was made clear by section 1(7) of the 1976 Act, which provides as follows:"Except as provided in this section or in Part II of the Administration of Justice Act 1982 or under section 1 of the International Transport Conventions Act 1983 no person shall be entitled by reason of relationship to damages (including damages by way of solatium) in respect of the death of another person."
Reference was also made to the case of Millar v Watt & Ors (26 February 2004, unreported), in which Lady Smith stated expressly at paragraph 14 that "no claim for loss of earnings could be advanced under section 1(4) of the 1976 Act". If the averments in question did not set out a claim for wage loss, then, if they were allowed to stand, they would create significant confusion. Here there were averments of specific periods of absence from work. The averments in question should either be deleted or result in a proof before answer being allowed.
[6] Mr Forsyth next turned to consider the averments relating to the distress and anxiety endured by the pursuers in contemplation of the suffering of the deceased before her death in terms of section 1(4)(a) of the 1976 Act. It was averred that the deceased was taken by air ambulance to the Royal Infirmary of Edinburgh and did not regain consciousness. It was further averred that the pursuers suffered distress and anxiety in contemplation of the suffering of the deceased while at hospital before her death. It was a reasonable inference from the averment that the deceased did not regain consciousness that she had been rendered unconscious in the accident and remained unconscious from then until the time of her death. Section 1(4)(a) of the 1976 Act did not cover cases where there had been a sudden or instant death, or where the deceased had been rendered unconscious in the accident and had not recovered consciousness before death. An example of the type of case to which section 1(4)(a) applied was McLean v William Denny & Bros Ltd (30 April 2004, unreported), in which the widow had witnessed her husband suffer a slow death from mesothelioma. In that case the First Division made clear at paragraph 27 that, in a case where section 1(4)(a) applied, the award under section 1(4) fell to be increased: see also Murray v The Greenock Dockyard Co Ltd (30 April 2004, unreported) at paragraph 9. [7] Mr Forsyth went on to develop his argument on this point by submitting that, in the case of what has become known as the unaware pursuer (McEwan and Paton on Damages, chapter 10), there was no pain and suffering, although there was a loss of the amenities of life. In Dalgleish v Glasgow Corporation 1976 SC 32 a two year old girl fell from a height and suffered a severe head injury resulting in blindness, incontinence and inability to move and eat. At the date of the proof she had survived for five years in a coma. Lord Justice Clerk Wheatley stated at page 53 "In the instant case there is admittedly no claim for pain and suffering - the unfortunate girl was virtually unconscious throughout". Later he stated "It seems that she suffers no pain, but she had, of course, suffered a total loss of all amenities of life". In H West & Son Ltd v Shephard [1964] AC 326, a case in which the House of Lords dealt with a claim by a woman who was severely injured in a road traffic accident, Lord Morris of Borth-y-Gest stated at page 349:"An unconscious person will be spared pain and suffering and will not experience the mental anguish which may result from knowledge of what has in life been lost or from knowledge that life has been shortened. The fact of unconsciousness is therefore relevant in respect of and will eliminate those heads or elements of damage which can only exist by being felt, or thought, or experienced. The fact of unconsciousness does not, however, eliminate the actuality of the deprivation of the ordinary experiences and amenities of life which may be the inevitable result of some physical injury."
As the deceased in this case was unconscious throughout the period from the occurrence of the accident until her death, she had been spared pain and suffering, and in those circumstances section 1(4)(a) could not apply to the claim now being made by the pursuers.
[8] So far as the averments of grief and sorrow of the pursuers caused by the deceased's death were concerned, Mr Forsyth began by submitting that they were of doubtful relevancy and amounted to special cause for withholding the action from jury trial. It was averred that the first pursuer attended his GP and a psychiatrist, that he suffered from bereavement reaction, stress, depression, significant psychological difficulties and an Adjustment Disorder. He had received counselling and had to cope with the death of the deceased along with the death of his brother in April 2001, with his wife being seriously unwell, with his inability to work and with his subsequent bankruptcy. His mood had remained low and been further compounded by his mother's illness, his condition was likely to persist and he would require support and medication for some time. [9] Mr Forsyth accepted that the words "grief and sorrow" in section 1(4)(b) of the 1976 Act were apt to cover a bereavement reaction. He did so under reference to the decision of Lord Macfadyen in Gillies v Lynch 2002 SLT 1420. In that case a mother suing for damages in respect of the death of her daughter averred that she suffered psychological damage in the form of a pathological grief reaction and severe depressive disorder for which she took anti-depressant tablets prescribed by her psychiatrist. The defender opposed the pursuer's motion for issues on the ground that these averments were of doubtful relevancy as supporting a claim under section 1(4) as there was an important distinction between grief and sorrow caused by bereavement and recognised psychiatric injury, and the extent to which the averments were relevant could not be determined in a jury trial. Lord Macfadyen held that the averments relating to the mother's psychological condition were relevant and that their relevance could not be any more satisfactorily determined after proof than at the stage of the debate on procedure roll. At page 1423, paragraph 14 he stated as follows:"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."
At paragraph 16, having held that the averments in question in that case were not of doubtful relevancy, he stated:
"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."
Where anything other than grief and sorrow, such as other psychiatric disorders, was pleaded, then the issue of doubtful relevancy arose. In relation to the first pursuer five factors other than the death of the deceased were mentioned as contributing to his condition. Doubtful relevancy arose because there was a question whether what Mr Forsyth described as "this whole package" could constitute "grief and sorrow". The issues of causation which arose were too complex to be resolved satisfactorily by a jury. Difficult questions of medical causation arose.
[10] As the discussion progressed Mr Forsyth revised his submission on this point and went so far as to submit that any averments about the first pursuer suffering from any condition other than bereavement reaction were irrelevant and should be deleted. Having initially appeared to accept the decision of Lord Macfadyen in Gillies v Lynch, he made so bold as to suggest that what Lord Macfadyen stated at paragraph 14 was not correct. The words "grief and sorrow" were natural human emotions or reactions likely to be suffered by anyone who had lost a loved one and were not intended to cover a discrete illness suffered by a surviving relative. The law allowed a claim to be made for having suffered a psychiatric illness arising out of the death of another person only in certain closely defined circumstances: see, for example, Alcock v Chief Constable of South Yorkshire [1992] AC 310 and Frost v Chief Constable of South Yorkshire [1999] 2 AC 455. The statement made by Lord Macfadyen at paragraph 14 contained a logical leap. Moreover, at paragraph 15, his Lordship stated:"It seems to me to be quite artificial to attempt to draw a borderline between grief caused by bereavement and the 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."
The fact was that it was not artificial to draw a borderline between grief caused by bereavement and psychiatric illness caused by bereavement, since the former founded a relevant claim under section 1(4)(b) and the latter did not. Moreover, so far as the averments about the first pursuer's illness were concerned, there was no indication what his current illness was, or why or for how long it was likely to persist.
[11] In relation to the second pursuer, it was averred that she attended her GP, was depressed and given medication, had difficulty sleeping, had no libido, often thought of what happened to the deceased, suffered from bereavement reaction and from depression, which was a Major Depressive Disorder of moderate intensity. In the case of the second pursuer the problem of multiple causes for her condition did not arise, but in her case also the averments relating to anything beyond a bereavement reaction were irrelevant. The averments about her condition were in the present tense and nothing was said of the future. They were therefore of doubtful relevancy and amounted to special cause for withholding the case from jury trial. [12] Mr Forsyth dealt lastly with the averments relating to the deceased's failure to wear a seat belt. In answer 2 the defender averred that at the time of the accident she was not wearing her seat belt and that she was thrown from the vehicle and sustained the fatal injuries as a result. It was further averred that, had she been wearing her seat belt, she would not have been thrown from the vehicle and would not have sustained the fatal injuries. In answer 3 it was averred that her fatal injuries were caused by her failure to wear a seat belt and that her death was caused or materially contributed to by her own fault or negligence. These averments raised the whole question of what caused the deceased's fatal injuries and were a further reason for considering the case to be one of doubtful relevancy. Mr Forsyth in a subsequent response accepted that the point he was arguing concerning the averments about the wearing of the seat belt was an entirely ancillary one and he did not suggest that on its own it would amount to special cause for withholding the case from jury trial.Submissions for the pursuers
[13] Mr Kelly submitted that the action was relevant as it stood, that no averments required to be deleted and that the case was suitable for jury trial. He underlined that the pursuers had a right to a jury trial under section 11 of the Court of Session Act 1988 ("the 1988 Act") and that it was only if special cause was shown under section 9(b) of the 1988 Act that the case could be withheld from jury trial. The onus of showing special cause rested upon the defender: see Graham v Patterson & Sons 1938 SC 119, per the Lord Justice Clerk at pages 124 and 127. Even if certain averments were deleted, this was a straightforward case of a road traffic accident which should be remitted to probation before a jury. [14] Mr Kelly first directed his attention to dealing with what Mr Forsyth had described as the wage loss claims by the pursuers. He said that it was plain that the pursuers did not seek to bring any claims other than those open to them under section 1(4) of the 1976 Act. He accepted that the pursuers could not claim for loss of earnings and that wage loss would not be an issue for the jury to consider. It would be clear to the jury from the submissions made and the directions given to them that there was no claim for loss of earnings. The averments about the pursuers being unable to work were relevant as they showed the extent to which they had been affected by the deceased's death. The pursuers were entitled to claim for the non-patrimonial loss in not being able to work, but not for the patrimonial loss from not being able to work. All that the averments in question did was to give notice of the way in which it was being alleged that their grief and sorrow had affected the pursuers. The averments about how the employment of each of the pursuers was affected were intended to indicate the measure of their grief and sorrow and to provide some yardstick for a jury in assessing that grief and sorrow. As there was no fixed amount for an award for grief and sorrow in Scotland, it was appropriate to give some indication in the pleadings of the extent of the grief and sorrow: see Donald v Strathclyde Passenger Transport Executive 1986 SLT 625 and the Scottish Law Commission Report on The Effect of Death on Damages (1992) Cm 1848, page 31. Grief and sorrow were not to be restricted to incorporate only some forms of grief and sorrow. There was no wage loss claimed by the pursuers, and the confusion which the defender suggested was being raised by the pleadings was hypothetical. [15] Turning to that part of the pursuers' claim based on section 1(4)(a) of the 1976 Act, Mr Kelly began by accepting that it was a reasonable inference from the averments made by the pursuers that the deceased was rendered unconscious in the accident and did not regain consciousness before her death. He submitted that section 1(4)(a) had to be examined closely and he focused upon the words "in contemplation of". It was the distress and anxiety of the relative that was being compensated, not the suffering of the deceased. In the present case what mattered was what was in the minds of the pursuers at the material time. The deceased had suffered multiple injuries and loss of consciousness. Her loss did not require to amount to conscious suffering. The suffering here consisted of her multiple injuries and state of unconsciousness. [16] So far as the defender's criticism of the averments about the pursuers' psychiatric illnesses were concerned, those averments were similar to the averments in Gillies v Lynch, and, for the reasons given by Lord Macfadyen in that case, they were relevant. The fact that a particular condition amounted to a recognised psychiatric illness did not exclude it from coming within "grief and sorrow" in terms of section 1(4)(b) of the 1976 Act. Reference was made to paragraph 4.39 of the above Scottish Law Commission Report. Section 1(4)(b) of the 1976 Act was apt to cover future grief and sorrow. Mr Kelly relied upon the decision in Gillies v Lynch, which he submitted was directly in point. All that the averments concerning the first pursuer's other problems sought to do was to put the issue of his grief and sorrow in its context, and this was something which a jury would be well able to appreciate. All the averments which had been attacked by the defender under reference to section 1(4)(b) were relevant, and no deletions should be made. [17] The defender's averments about the deceased's failure to wear a seat belt did not amount to special cause for withholding the case from jury trial: see Belford v Jones 1973 SLT (Notes) 85 per Lord Grieve at page 87. [18] In concluding his submissions Mr Kelly invited me to hold that the pursuers' case was wholly relevant and moved me to repel the second and third pleas-in-law for the defender and to allow issues.Response for the defender
[19] Mr Forsyth submitted that, even if, as stated by Mr Kelly, no wage loss claim was being made on behalf of the pursuers, the averments about the pursuers' employment were irrelevant. If those averments remained in the pleadings, they were of doubtful relevancy. For example, it was not averred why the first pursuer lost his employment. The averments in question would create confusion in the minds of the jury.
Discussion
(i) Alleged wage loss claims
[21] Mr Forsyth for the defender read the averments relating to the absence from employment of each of the pursuers as claims for wage loss by each of them. I can well understand why he did so, especially in the case of the averments relating to the first pursuer. In the course of submissions Mr Kelly disowned any claim for wage loss by either pursuer and stated that the averments about their employment had been made in order to give notice of the way in which their grief and sorrow had affected them. Despite the fact that Mr Kelly disowned any wage loss claim by either pursuer, Mr Forsyth continued to maintain that the averments were irrelevant, or at least of doubtful relevancy. [22] My own initial impression on reading the averments about the pursuers' absence from work was that each pursuer was making a claim for loss of earnings, or at least that it was not possible to say from a reading of the Record whether or not each pursuer was making a claim for loss of earnings. It is now clear from the statement made by Mr Kelly at the Bar that it is accepted on behalf of each pursuer that a claim for loss of earnings in the present action is irrelevant, and that no such claim is being made by either pursuer. That being so, should the case proceed to jury trial, there will be no reference to loss of earnings in the issue placed before the jury, the submissions of counsel or the directions of the trial judge. There would therefore, in my opinion, be no scope for confusion on the part of the jury. The question remains whether, any claim for wage loss having been disowned by the pursuers, the averments in question are irrelevant and should be deleted. In my opinion the pursuers are entitled to make these averments for the sole purpose of demonstrating the grief and sorrow which they were caused by the deceased's death. It seems to me that it is relevant to consider, when deciding the amount of the award to make to a relative under section 1(4) of the 1976 Act, whether the grief and sorrow caused to that relative by the deceased's death has been of such intensity as to render him unable to work for a period. Accordingly, I consider that the averments in question are neither irrelevant nor of doubtful relevancy and should be admitted to probation.(ii) Section 1(4)(a) of the 1976 Act
[23] Section 1(4) of the 1976 Act expressly provides that the Court, in making an award under the sub-section, shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) of that sub-section. It follows from this that an award under section 1(4) will not ascribe specifically any part of the award to the "distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death" in terms of section 1(4)(a). Nevertheless, in a case where section 1(4)(a) applies, the award under section 1(4) is likely to be higher than in a similar case where section 1(4)(a) does not apply: see McLean v William Denny & Bros Ltd (supra), per the Lord President at paragraph 27. Accordingly, if a pursuer seeking an award under section 1(4) maintains that section 1(4)(a) applies to his case, he must in my opinion make relevant averments of distress and anxiety endured by him in contemplation of the suffering of the deceased before his death.
(iii) Section 1(4)(b) of the 1976 Act
[25] An award of damages under section 1(4) of the 1976 Act may, in terms of section 1(4)(b), include damages for the grief and sorrow of the relative caused by the deceased's death. The claim by a relative of a deceased under section 1 of the 1976 Act is a derivative claim based upon a breach by the responsible person of a legal duty owed to the deceased (and not to the relative). A relative who is a member of the deceased's immediate family within the meaning of section 10(2) of the 1976 Act is entitled to claim damages for non-patrimonial loss under section 1(4). The nature of the non-patrimonial loss for which such a qualifying relative is entitled to claim under section 1(4) is defined by the words of the sub-section itself. In a case to which section 1(4)(b) applies, the damages are only for "the grief and sorrow of the relative caused by the deceased's death". Grief and sorrow are normal human emotions or reactions to which any person who has suffered the death of a close relative may reasonably be expected to be subject. The words "grief and sorrow" are ordinary words of the English language, and in my opinion, while they are apt to cover a bereavement reaction (which I read as meaning simply a reaction to a bereavement), they are not apt to cover any illness or pathological condition from which a person suffers as the result of the death of a close relative. It seems to me that the distinction between grief and sorrow on the one hand and a recognised psychiatric illness on the other hand in fatal cases is analogous to the distinction which has been drawn by the courts in non-fatal cases between upset and distress on the one hand and a recognised psychiatric illness on the other hand: see, for example, McLoughlin v O'Brian [1983] 1 AC 410 and Rorrison v West Lothian Council 2000 SCLR 245.
"The pursuer's solatium claim arises in circumstances which appear to me to justify an award in the region of the upper limit allowable for pure solatium. The degree of attachment which existed between her and the deceased was very close and strong and the shock which she received by his death was, as is testified, by Dr Matthews, very profound."
I do not think anything can be taken from what Lord Mackintosh said in that passage. There is no suggestion that Dr Matthews gave any evidence that the widow was suffering from a psychiatric illness, as opposed to extreme grief. In any event, the case was decided in 1944 when the medical understanding of psychiatric illness was much less developed than it is now. So far as I am aware, it was not the practice for medical evidence to be led in support of claims for solatium in death cases under the pre-1976 law. I accept that the degree of grief and sorrow suffered by different relatives can vary and that that can be reflected in the amount of the global award made to each relative in terms of section 1(4) of the 1976 Act but, for the reasons which I have sought to give, the grief and sorrow referred to in section 1(4)(b) do not include any pathological condition in the form of a psychiatric illness.
[29] I am therefore of the opinion that the averments of psychiatric illness made by each of the pursuers in this action are irrelevant.(iv) Subsidiary submissions for the defender
[30] I do not accept the submission made by Mr Forsyth that the defender's averments relating to the failure by the deceased to wear a seat belt give rise to any question of doubtful relevancy of the pursuers' pleadings concerning the cause of death. I accept the submission of Mr Kelly based on the decision of Lord Grieve in Belford v Jones (supra) that the averments which the defender has made do not affect the right of the pursuers to a jury trial.
Decision
[33] The following averments in condescendence 4 will be deleted:
(a) at page 9D-E, "The pursuers suffered distress and anxiety in contemplation of the suffering of the deceased while at hospital before her death.";
(b) between page 10C and page 11A, all averments from "He has attended his General Practitioner" to "he will require support and medication for some time", under exception of the averment "He suffered from bereavement reaction"; and
(c) at page 11C-E, all averments from "She attended at her General Practitioner" to "treatment is available for the second pursuer privately outwith working hours", under exception of the averment "She suffers from bereavement reaction".
[34] I shall sustain the defender's second plea-in-law to the extent of making the above deletions, repel his third plea-in-law and thereafter allow issues.