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Smith & Ors v. Forth Ports Plc [2004] ScotCS 91 (07 April 2004)

OUTER HOUSE, COURT OF SESSION

A318/03

OPINION OF

J. GORDON REID Q.C., F.C.I.Arb.

(Sitting as a Temporary Judge)LORD JUDGE

in the cause

PURSUERS NAME

JANET SMITH & OTHERS

Pursuers;

against

FORTH PORTS PLC DEFENDERS NAME

Defenders:

________________

Pursuers: Clancy, Q.C. ; Allan McDougall, S.S.C.

Defenders: Arthurson; Simpson & Marwick, W.S.

7 April 2004

INFO

START HERE

OPINION

J. GORDON REID Q.C., F.C.I.Arb.

Sitting as a Temporary Judge

in the cause

JANET SMITH & OTHERS

Against

FORTH PORTS PLC

Act: Clancy Q.C.

Alt: Arthurson

Introduction

[1] This action for damages, at the instance of the widow, children, parents and brother of the late Gary George Smith, came before me on Procedure Roll on 19^th March 2004. The deceased died on 7^th May 2001, while working in the course of his employment with the defenders. Various cases of fault at common law and breach of statutory duty are pled against the defenders. The pursuers wish a jury trial; the defenders offer a proof before answer.

[2] At the outset of the discussion, counsel for the pursuers, Ronald Clancy Q.C., informed me that it was now accepted that the claim of the fourth pursuer (the deceased's brother) was irrelevant, and that I should dismiss the action insofar as at his instance. I was also informed that the defenders had admitted liability and that there was no element of contributory negligence. I shall therefore repel, of consent, the defenders' 4^thfourth, 5^thfifth, and 6^th sixth pleas-in-law.

[3] Paul Arthurson, advocateAdvocate,, for the defenders, informed me that, notwithstanding the terms of his Note of Argument, the principal issue to be discussed was whether the pursuers' averments in relation to the measure of value of the services provided by the deceased to his wife and children prior to his death were of doubtful relevancy.

The Pleadings
[4] In article Article 10 of the Condescendence, the pursuers aver various losses. The earnings of the first pursuer, Mrs Janet Smith (the deceased's widow) are set forth. It is narrated that she was absent from work following her husband's death until January 2002. Thereafter, she returned to work part-time until about May 2002. The averments at page 25D of the Closed Record (As Further Amended) continue as follows:-

"She has not returned to work since then. She has been unable to do so because of the need for her to render the services to the children that the deceased would otherwise have rendered as hereinafter condescended upon. That need will endure until the younger child Todd is 14 years old in May 2008. The pursuer is going to take a career break until then to enable her to continue devoting her whole time and attention to the care of the children. Thereafter she will probably return to full-time employment. Prior to his death the deceased rendered valuable services to the pursuer and the children."

These services are then set out at length. The pleadings continue at page 26B:-

"But for his death, the deceased would have continued to render these services to the children until they had grown up. He would have continued to render housekeeping and other services to the pursuer after that. Since the death of the deceased the first pursuer has been the sole carer for the children. In order to fulfil this role to the best of her ability it has been necessary for the pursuer to take a career break as hereinbefore condescended upon. In the circumstances the correct measure of the value of the services previously rendered by the deceased is and will be (until she goes back to work) the net salary the first pursuer would have earned had she remained in full-time employment or a portion thereof."

There is also a loss of support claim.

Submissions
[5] In proposing that a proof before answer be allowed, Mr Arthurson submitted that the pursuers' pleadings will present a difficulty for a jury in assessing damages. Given that the services claim is based upon the first pursuer's full income, a jury will require to apportion a separate figure for each of the pursuers who claim under this head; the jury will require to apportion the loss of support claim as well. All this will not be a straightforward exercise, which renders the cause unsuitable for jury trial. Mr Arthurson also submitted that the pursuers' averments as to the correct measurement of the value of lost services were of doubtful relevancy. The calculation should not be based primarily upon valuing the loss to the first pursuer by giving up work. There is a danger that a jury would seek to compensate the first pursuer for her lost income rather than remunerate for services provided. That was not the object of section Section 9 of the Administration of Justice Act 1982. The object of the statute is remuneration not compensation. The true measure is the cost of having the services provided by someone else, which would normally be assessed reference to a number of hours and an hourly rate. He referred to Brown v Sutherland 1990 SLT 275 at 275K, O'Malley v Multiflex (UK) Ltd 1997 SLT 362 at 363H, Kendal v Davies 2001 SCLR 140 at 144D (paragraph 11), Housecroft v Burnett 1986 1 AER 332 Ingham v John G. Russell (Transport) Ltd 1991 SLT 739 at 744D, McEwan & Paton at 12-03 and Forsyth's CB v Govan Shipbuilders Ltd 1988 SLT 321 at 326L-327B.

[6] Mr Clancy invited me to repel the defenders' first and second pleas-in-law and allow issues. The defenders should not be allowed to reserve voluntarily the question of relevancy. The issue could and should be resolved on Procedure Roll. Section 9(2) did not constrain the method to be adopted in valuing the services claimed. Kendal was wrongly decided on this point. It was for the jury to consider whether the method advanced was reasonable and what was a reasonable sum to award. As a direct result of the defenders' negligence, the first pursuer now has to bring up the children on her own; the family has been deprived of two earned incomes; it is clearly relevant to aver that the first pursuer's income has been lost because the services previously provided by her husband now have to be provided by her; the loss of her income is the measure of the loss to the family budget. This is a more realistic approach than applying commercial rates to notional hours. There was support for this approach in England in Cresswell 1991 1WLR 1113 at 1120A, 1121B-F. Reference was also made to McGregor on Damages 17^th edition paragraph 36-093. While what is a reasonable sum may be assessed in a number of different ways, the fact that the pursuers have perilled their claim on one particular method does not make the claim irrelevant. Reference was also made to Spittle v Bunney 1988 1 WLR 847.

[7] In relation to the argument that the issues were not sufficiently straightforward, Mr Clancy submitted that a jury could readily be charged in appropriate terms. Firstly, they would be directed to consider whether the claim fell within the scope of section Section 9. Secondly, they would be directed to consider what would be a reasonable sum to award, and in particular whether it was reasonable for the first pursuer to give up work, and whether it was reasonable to measure damages by reference to her loss of income.

Decision
[8] Sections 9 and 11 of the Court of Session Act 1988 entitle a pursuer in an action of damages for personal injuries, which includes an action arising out of the death of another, to a jury trial unless special cause is shown why a jury trial should not be allowed. Two of the traditional grounds for withholding a cause from a jury trial are that the facts of the case or part of it raise questions of particular complexity or difficulty, or the pleadings contain averments which are of doubtful relevancy. The present type of action is unfortunately all too common. The pursuers variously claim, in effect, loss of the deceased's society and guidance, loss of his financial support to the family, and loss of the personal, domestic services which he provided as a husband and father. I do not consider the claims to be unduly complex or even complex. If this case were to be withheld from a jury on grounds of complexity, then virtually no death claim would ever be allowed to proceed to jury trial. As a matter of practice, jury trials are frequently allowed in such claims. In my opinion, therefore, special cause, on the ground of complexity or difficulty, justifying the withholding of the cause from a jury trial has not been demonstrated. This is consistent with the approach of the Lord Ordinary and the Inner House in Stark v Ford (No. 2) 1996 SLT 1329. I therefore reject Mr Arthurson's argument on this point. I should add that O'Malley, cited by Mr Arthurson, was decided on the basis of lack of specification of and the relationship, in the particular pleadings in that case, between claims for continuing wage loss and loss of employability, (1997 SLT 363H-J). I agree with the view expressed in Currie (at 1999 SLT 65 I) that only limited assistance is to be gained from looking at other cases in which the question of proof or jury trial may have been decided on particular averments. In the present case, lack of specification was not argued.

[9] Section 9 of the 1982 Act entitles the first pursuer and the children to include as a head of damage a reasonable sum in respect of the loss to them of personal services which were or might have been expected to have been rendered by the deceased before the accident gratuitously but which if rendered by a third party would ordinarily be obtainable on payment. They make such a head of claim. The head of claim must therefore be relevant in law. Lack of specification, as already noted, was not a ground of attack.

[10] Whether the amount claimed and the method of calculating it is appropriate, is a matter for evidence and consideration by the court or by a jury. The fact that a pursuer has chosen to specify the proposed method of calculation cannot render the head of claim irrelevant. The method may be inappropriate because it yields a sum which is unreasonable. That simply means that the amount being claimed is excessive, not that the head of claim itself is irrelevant or of doubtful relevancy. In my view, there is no underlying principle and no binding authority which requires me to conclude that the pursuers' averments as to the method of calculating the section Section 9 services are irrelevant or of doubtful relevancy. In my view, they are relevant.

[11] In Brown, the husband and 3 year old son claimed inter alia for loss of services provided by the deceased wife and mother. Lord Sutherland noted that no guidance was given in section Section 9 of the 1982 Act as to the appropriate method of assessment (1990 SLT 276 E-F). The husband was financially unable to provide a housekeeper so the child lived with its grandmother some miles away to enable her to be looked after. The grandmother gave up her work to do so. Lord Sutherland observed that the loss of her earnings could not form part of any claim against the defenders (276G). However, it does not seem to have been argued that the loss of services might be measured by reference to such loss of earnings. Instead, the loss of services was measured by reference to the cost of providing a housekeeper (276I-J).

[12] In Ingham the Court observed that a broad assessment had to be made (at 1991 SLT 744E & 747G). The case was principally concerned with the nature of personal services rather than their evaluation. In the Outer House, Lord Cameron of Lochbroom noted the practical reality of the division of labour and pooling of incomes within a family group (at 1991 SLT 741L). In the Inner House, Lord McCluskey rejected the notion that it was necessary to aver rates charged by handymen, and babysitters etc or lead evidence of apportionment of hours devoted to various task in the average week, month or year (at 747H).

[13]

Kendal related to a claim under section Section 8, not section Section 9, of the 1982 Act for reasonable remuneration for necessary services. It is therefore not directly in point. It was there stated that the primary measure of damages for services and paid care should be the value of the services and the cost of the paid care. Earnings lost by a relative in providing services do not provide the true measure, although they may in some cases provide a cross check (at 144D paragraph 11). If lost earnings cannot be the true measure, it is difficult to see how they can ever provide a cross check of any utility.

[14] In my opinion, different considerations apply to a section Section 9 claim. The provision of section Section 8 services by a relative entitles recovery of reasonable remuneration and reasonable expenses. These services are rendered out of necessity and it is generally a reasonably straightforward exercise identifying the nature (often, but not exclusively, care and attendance), and duration of the necessary services, provided by the relative and relating them to commercial rates. That commercial rates are to be the benchmark for quantification is inherent in the phrase reasonable remuneration which is the touchstone, in ordinary actions of payment for services, where no agreement has been reached on the amount or rate to be paid for the services provided. A claim under section Section 9 is somewhat different. Many of the services in question would normally never be rendered commercially either individually or as a package. For example, the average family would not normally employ someone to change the occasional light bulb, carry out small items of D.I.Y. which tradesmen are not generally interested in carrying out, wash the car, mow the lawn, take a child to a school activity such as a football match, supervise bath time; help with homework, help with the supermarket shopping etc; the list is endless; the very presence of a loving spouse and parent en famille constitutes the provision of a service which cannot be bought and is virtually impossible to value by reference to commercial rates. Converting such services provided gratuitously by a husband or wife and parent to commercial rates and man-hours is liable to be an artificial exercise in relation to some of these services. For that reason, perhaps, section 9 refers to a reasonable sum rather than reasonable remuneration. It seems to me, therefore, that the services in question in each section may not necessarily be identical and the statutory entitlement is also, different (see Kennedy v Lees of Scotland Ltd 1997 SLT 510). Thus a section Section 8 claim may relate to a pursuer's laundry; a section Section 9 claim may relate to the washing and ironing of clothes of the pursuer's children and husband but not her own clothes. A broader approach is required in relation to section Section 9. I do not consider there is such an obvious link with commercial rates in relation to section Section 9 as there is with section Section 8.

[15] In Forsyth's CB, the Lord Ordinary, in relation to a section 8 claim, stated that he was not persuaded that prior earnings of the relative are not a relevant consideration where the employment has been given up in order to provide services for the injured person (1988 SLT at 326). The Lord Ordinary would, however, have preferred to have, in addition, evidence of commercial rates (at 327; see also Howie v Upper Clyde Shipbuilders Ltd 1991 SLT 2 at 4). The Inner House, in Forsyth's CB, dealt with other matters (1988 SC 421).

[16] Housecroft was concerned inter alia with the services provided by a relative to the injured plaintiff and was therefore akin to section Section 8 claims rather than section Section 9. It is, however, interesting to note that the Court of Appeal were of the view that, where the relative has given up gainful employment to look after the plaintiff, the court would award sufficient to prevent the relative from losing out. (1986 1 AER at 343d-f). This approach emerged in Cresswell, where claims akin to section Section 9 were made; there, a mother of three children was killed in a road accident; the children were eventually looked after by their aunt, who gave up her employment as a traffic warden to do so. The relevant head of claim is described as loss of the mother's care, the services dependency (1991 1 WLR at 1118H). It was conceded that it was reasonable for the aunt to give up her employment (at 1120H). The Court's starting point in valuing the loss of services, which it considered as if it were a jury (at 1121E), was the relative's actual loss of earnings reasonably incurred (at 1121). From the discussion in the case, this was by no means a novel approach in England. Various other factors were then considered including the changing needs of the children over time, and a calculation made (cf. Spittle where the Court of Appeal made a deduction to reflect the consideration that as the children grow older, the services they require diminish). In the present case, the pursuers have set a time limit in respect of which they claim that the first pursuer will not have remunerative employment. It may also be noted that the defenders make no averments on any basis, by reference to commercial rates, if available, or otherwise, that it was unreasonable for the first pursuer to give up work. On their present pleadings, they will have to rely entirely on cross examination to show that the sum claimed under this head of claim is excessive. English authority must be approached with caution as the Scottish statutory claim may not be identical to the basis upon which the English claims for services, which a deceased provided before his or her death, proceed. Nevertheless, the underlying claim must be identical. A widow and children are deprived of the same services through the loss of a father and husband whether the claim is determined by English law or by Scots law. It is of some comfort to note that recent English authority has approached the valuation of such services in a manner consistent with my view that the pursuers' averments in question are relevant in law.

Summary
[17] A claim for a reasonable sum in respect of personal services under section Section 9 of the Administration of Justice Act 1982, which quantifies those lost services by reference to the earned income (or a portion thereof) of the person providing those services in place of the deceased, is relevant. Whether the sum claimed is reasonable or excessive is a matter for proof for the court or a jury to decide. The foregoing is consistent with some Scottish authority and is consistent with the approach of the English courts confronted with similar circumstances.

Disposal
[18] I shall sustain, of consent, the defenders' second plea-in-law to the extent of dismissing the action at the instance of the fourth pursuer; quoad ultra, I shall repel it. The defenders' first plea-in-law (doubtful relevancy and complexity) will be repelled. I shall also repel, of consent, the defenders' fourth, fifth and sixth pleas-in-law. That having been done, I shall allow issues. I shall, of consent, find the pursuers liable to the defenders in the expenses of the Minute of Amendment procedure referred at the beginning of this Opinion. Meantime, all remaining questions of expenses (which will include those relating to the dismissal of the action at the instance of the fourth pursuer) will be reserved. .