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Cite as: [2004] ScotCS 224

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Gillies & Ors v. Lynch & Ors [2004] ScotCS 224 (05 October 2004)

OUTER HOUSE, COURT OF SESSION

A1603/98

OPINION OF LORD MACFADYEN

in the cause

DUNCAN GILLIES AND OTHERS

Pursuers;

against

DAVID HERD LYNCH AND OTHERS

Defenders:

________________

Pursuers: J. J. Mitchell, Q.C.; Anderson Strathern, W.S.

Defenders: Hanretty Q.C. and R. G. Milligan; Simpson & Marwick, W.S.

5 October 2004

Procedural history
[1] In this action at the instance of the relatives of the late Michelle Charlotte Gillies ("the deceased"), I allowed issues on 17 October 2002. Thereafter the first and second defenders ("the defenders") tendered a minute of amendment, which the second pursuer ("the pursuer") answered. On 22 January 2004 the Closed Record was amended in terms of the minute of amendment and answers (both as adjusted). The allowance of issues was withdrawn and the case was appointed to the procedure roll on the defenders' first and second pleas-in-law.

[2] The effect of the amendment was to introduce averments by the defenders about the pursuer's psychiatric history. The pursuer's answers are confined to responding to those averments, and make no alteration to the pursuer's substantive case. The defenders also state two new pleas-in-law, which appear as pleas-in-law 1 and 2 in the Closed Record (as further amended). The pleas which appear as pleas 3, 4 and 5 in that document are the ones which I repelled on 17 October 2002.

The previous decision

[3] The action is one for damages under section 1 of the Damages (Scotland) Act 1976 ("the 1976 Act"). The accident which resulted in the death of the deceased took place in November 1995. The pursuer avers that as a result of the death of the deceased she suffered certain psychological damage. In the course of the earlier hearing on the procedure roll counsel for the pursuer stated unequivocally that the averments relating to psychological damage were made exclusively in support of the pursuer's claim under section 1(4) of the 1976 Act for "grief and sorrow ... caused by the death of the deceased". The issue debated at that hearing was whether the averments of psychological damage were relevant in support of that claim. I held that they were. No contention was advanced by the defenders at that stage that special cause existed for withholding the case from trial by jury.

The amendment
[4] In the averments introduced by the minute of amendment the defenders set out an account of the pursuer's psychiatric history. They aver:

"The second pursuer has a material history of psychiatric problems going back to her teens. She attended Argyll and Bute Hospital for psychiatric treatment for depression in 1970. The pursuer's first marriage lasted for one year before her husband left her with a young baby. The pursuer's second marriage (to the first pursuer) ended in 1988 due to his adultery, excessive drinking and violence. She attended her GP in relation to marital problems. In September 1989 the pursuer was noted to be very depressed. She was prescribed anti-depressants. The pursuer was referred to Raigmore Hospital for psychiatric treatment due to depression in 1990 and 1991. In 1992 it was noted that the pursuer was still very tired and depressed. In 1993 she attended her GP in relation to chest pains, which may have been caused by panic attacks. The pursuer was taking antidepressants in late 1994 and early 1995, due to relationship problems. In March 1995 the pursuer was seen with palpitations and panic attacks. Her anti-depressants were increased. In April and May 1995 the pursuer continued to complain of anxiety, tiredness, pain and other symptoms. The pursuer's cousin died in 2003. She has suffered an adverse reaction to that life event. The pursuer also has a history of epilepsy. The pursuer has a poor relationship with her other daughter, Rebecca, which causes her to feel guilty and has perpetuated her depression."

[5] After narrating that history, the defenders go on to aver:

"Depression is not the same as grief. Grief is an adjustment process to bereavement. Adjustment to grief caused by bereavement usually lasts 6-12 months. Depression typically has a more complex causation. She is susceptible to significant life events. No one aspect of her history is causative of her present condition. The pursuer suffers and for a significant number of years prior to the death of the deceased suffered from a chronic depressive disorder."

[6] The defenders introduced by amendment two additional pleas-in-law. The first is a general plea to relevancy and specification. The second is in the following terms:

"Special cause existing, Issues should not be allowed."

The defenders' submissions
[7] Mr Hanretty, who appeared for the defenders, disavowed any intention to return to the question which I decided in October 2002, although he drew my attention to the fact that a different view of the same question had been taken by R. F. Macdonald, Q.C. sitting as a temporary judge, in Ross v Pryde 30 July 2004, unreported.

[8] Mr Hanretty's principal submission was that I should sustain the defenders second plea-in-law. Although the plea is expressed in unsatisfactorily vague terms, the contention advanced in support of it was that the averments added by amendment introduced into the case such a degree of complexity of medical fact as to make the case unsuitable for trial by jury.

[9] It was not disputed that the need to resolve complex medical questions may amount to special cause rendering a case unsuitable for jury trial (e.g. McKechnie's CB v Gribben 1996 S.L.T. 136, Meechan v McFarlane 1996 S.L.T. 208, McInnes v Kirkforthar Brick Co Ltd 1998 S.L.T. 568). In that context, Mr Hanretty reminded me of an obiter observation which I made in my Opinion of 17 October 2002 in the present case (2002 S.L.T. 1420). At paragraph [16] of that Opinion, having held that the pursuer's averments about her psychological condition were relevant to her section 1(4) claim, I went on to say:

"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."

[10] Mr Hanretty's submission, in brief, was that the amendment had introduced into the case the very sort of complexity which had previously been absent, and which rendered the case unsuitable for jury trial. It would, he submitted, place an intolerable burden on a jury to expect it to draw the dividing line between what was inherent in the pursuer's previous and continuing psychiatric ill-health, and what was caused by grief and sorrow at the death of the deceased. It would equally be difficult for the trial judge to give appropriate directions to the jury on that issue. No doubt the assessment of damages, once the extent of the pursuer's grief and sorrow was ascertained, was ideally a matter for a jury to determine. But before they reached the stage of making that assessment, the jury would require to make findings about the state of the pursuer's psychological health prior to the death of the deceased, about the extent of her inclination to react adversely to "life events", and about how much, if any, of the pursuer's psychological ill-health after the death of the deceased was a manifestation of, or precipitated by, grief and sorrow at the loss of her daughter. That task should properly be regarded as beyond the capacity of a jury.

The pursuer's submission
[11] Mr Mitchell, for the pursuer, invited me to regard what I had said obiter in paragraph [16] of my earlier Opinion as doing no more that identifying that the issue now under debate could arise. What I had said did not determine whether in this particular case the circumstances amounted to special cause. He emphasised that an award under section 1(4) of the 1976 Act was compensation for the loss suffered by the particular pursuer. Everyone had a psychological history which might affect the degree to which he or she was affected by grief and sorrow at the death of a relative. The issues raised by such a claim were exactly the sort of issues best determined by a jury in light of their collective experience of life and of bereavement. There was nothing specially unusual about the pursuer's psychological history, and nothing unduly complex about assessing, in the light of evidence, how far psychological ill-health experienced by the pursuer after the death of the deceased was caused by grief at her loss, and how far it was a manifestation of an underlying chronic condition.

Discussion
[12] I take as my starting point the common ground that special cause for withholding a case from trial by jury may be found in the fact that the parties' pleadings disclose that there are complex issues of medical fact to be determined. Whether the presence of such issues renders a case unsuitable for jury trial is, however, a matter of degree. Special cause must be special to the circumstances of the particular case. In giving the example that I did in paragraph [16] of my earlier Opinion, I intended to do no more than stress that I had decided only the question of the relevancy of the pursuer's averments about her psychological state to her claim under section 1(4), and that my decision therefore did not foreclose the possibility that by the separate route of establishing special cause the defenders in a case of this general sort might nevertheless avoid jury trial. Whether they should do so is, however, as I have said, a matter of circumstance and degree.

[13] There is, in my opinion, some force in Mr Mitchell's submission that aspects of the decision which a jury would have to make in this case are of a sort ideally suited to determination by a jury. That is particularly so, in my view, in relation to the assessment of the monetary award which will constitute proper compensation for the pursuer's grief and sorrow at the death of her daughter. Mr Hanretty was, however, in my opinion right to point out that, before coming to the stage of such an assessment, the jury would have to unravel, as a matter of fact and in light of the evidence, including expert evidence, how much, if any, of the psychological ill-health suffered by the pursuer after the death of the deceased was caused by such grief and sorrow. That might involve reaching a conclusion on the evidence as to whether, in the light of the pursuer's psychiatric history, it could be held that she was suffering from a chronic depressive state which exists independent of the death of the deceased. That is what the defenders contend is the position, but the averred history might also be interpreted as a series of independent episodes, with no ever-present chronic condition. A chronic condition and an acute reaction to the death might both contribute to her over all condition, and if the evidence supported that conclusion, the jury would have to do its best, in the light of the evidence, to assess the proportion attributable to the reaction to the deceased's death. The question for determination is whether the complexity of these matters is such that they are too difficult to entrust to a jury.

[14] As both counsel accepted, the matter is largely one of impression. One way of looking at such matters is to ask whether the case would present undue difficulty to the trial judge in directing the jury. I do not consider that it would. Although there is a greater degree of complexity in the medical matters which fall to de determined than there was before the pleadings were amended, I have come to the conclusion that the medical questions are not so complex that the case is thereby rendered unsuitable for trial by jury.

Decision

[15] I shall accordingly repel the defenders' second plea-in-law. Mr Hanretty did not advance any separate argument under the defenders' first plea-in-law, and it is therefore, in my view, appropriate to repel that plea as well. I shall accordingly, of new, allow issues for the trial of the case by jury. Since the previous allowance of issues has been withdrawn, fresh issues will require to be lodged and approved.

[16] I shall reserve the question of the expenses of the hearing on the procedure roll.