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Cite as: [2005] ScotCS CSOH_109, [2005] CSOH 109

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Platt v Park & Ors [2005] ScotCS CSOH_109 (09 August 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 109

OPINION OF

R F MACDONALD QC

(Sitting as a Temporary Judge)

in the cause

JOSEPH PLATT as Guardian

of Anne McCrory

Pursuer

against

ROSINA ISOBEL DOROTHY PARK AND OTHERS

as Executors Nominate of the late Brian Park

Defenders

________________

Pursuer: Sanders; Russel & Aitken (for McArthur Stanton)

Defenders: G J Clarke; Simpson & Marwick, W.S.

9 August 2005

Introduction

[1] On 16 November 1996 Miss Anne McCrory, who was then physically disabled and required to walk with the aid of crutches, sustained injuries when she was struck by a motor vehicle driven by the now deceased Brian Park as she was crossing East Princes Street, Helensburgh. This action for damages for the injuries sustained by her, which has been remitted from the Sheriff Court, is now brought on her behalf by a solicitor who was appointed her Curator Bonis on 15 November 2001 against the Executors Nominate of the deceased. In terms of section 88(1) of, and para 1(1) of schedule 4 to, the Adults with Incapacity (Scotland) Act 2002 on 1 April 2002 the pursuer became the Guardian of Miss McCrory, who is now termed "the adult", with power to manage her property and financial affairs. For the purposes of the present action only liability is admitted by the executors.

[2] The action first called on the procedure roll on 17 December 2004 when the then counsel for the defenders (Mr Arthurson) submitted that certain averments of loss about the cost of care made by the pursuer were irrelevant. Mr Sanders for the pursuer then moved for leave to amend, which I granted. On 4 February 2005 the pleadings were amended in terms of a minute of amendment for the pursuer and, since counsel for the defenders intimated that the defenders were still insisting on their plea to the relevancy of the pursuer's averments about the cost of care, I appointed the cause of new to the procedure roll on the defenders' preliminary pleas. I heard further submissions on 10 June 2005 when the case called again on the procedure roll.

The pleadings
[3] The relevant preliminary pleas for the defenders are in the following terms:

"1. The pursuer's averments being irrelevant et separatim lacking in specification the action should be dismissed.

2. The pursuer's averments anent past, present and future care provided by the Local Authority being irrelevant et separatim lacking in specification, the said averments should not be remitted to probation.

3. The pursuer's averments being irrelevant et separatim lacking in specification they should not be remitted to probation."

[4] The averments with which the submissions were concerned are contained in condescendence 7. It is there averred that as a result of the injuries sustained in the accident Miss McCrory "now has certain additional special needs". Reference is made to a report from Case Management Services Ltd dated 16 September 2002, the terms of which are incorporated into the pleadings. There are claims for the cost of certain physical aids and treatment at p12 C-E and p15 C, the relevancy of which I did not understand to be the subject of challenge by the defenders. It is further averred that the additional care required by Miss McCrory after her discharge from hospital on 9 April 1997 was supplied to her by the local social work department at no cost to herself, that she does not pay for any of the support which she continues to receive from the social work department amounting to 17 hours a week, that she will require an additional five hours of care support per week (a total of 22 per week) which will require to be paid for, that as a result of any compensation which she receives the local authority may no longer cover any of the care costs covered by them at present and that she will require a case manager. There is also a claim for holiday costs consisting of the costs of a carer and car hire. At the conclusion of condescendence 7 it is averred that Miss McCrory cannot be sure that the local authority will continue to look after her at all times in the future, that a variety of factors, quite apart from a change in her needs and special circumstances, such as central government policy or local authority funding and policy, may mean that she will no longer receive the care from the local authority that she receives at present, in which event she will require to fund it herself.

Submissions for the defenders

[5] Mr Clarke began his submission by inviting me to repel plea-in-law 1 for the defenders, and intimated that he was insisting in plea-in-law 2 and plea-in-law 3 in part only. The great bulk of condescendence 7 should not be remitted to probation. He submitted that condescendence 7 did not contain an averment that there was a risk of private funding being required for additional care. While the court could assess a chance of something happening, the chance had to be a real and not a speculative one. In Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, a case involving solicitors' negligence in failing to obtain a warranty against liability for a former tenant's obligations under leases, it was held by the Court of Appeal that where the quantification of the plaintiff's loss depended upon future uncertain events it was decided on the court's assessment of the risk materialising. At page 1611 Stuart-Smith LJ said:

"In many cases the plaintiff's loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, as Mr Jackson submits, that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages?

Although there is not a great deal of authority, and none in the Court of Appeal, relating to solicitors failing to give advice which is directly in point, I have no doubt that Mr Jackson's submission is wrong and the second alternative is correct."

In Doyle v Wallace [1998] PIQR Q146 the plaintiff, who sustained very serious injuries at the age of 19 in an accident for which the defendant was liable, claimed that, but for the accident, she would have qualified and been employed as a drama teacher commencing work in 1993 but that until then she would have received a student grant and worked while she was a student, failing which she would have obtained clerical or administrative work. The Court of Appeal held that the loss of a chance to become a dance teacher fell within the above reasoning of Stuart-Smith LJ in Allied Maples Group Ltd and that the plaintiff need only show that a substantial chance had been lost.

[6] The present case involved the risk of incurring a liability and, applying the reasoning of Stuart-Smith LJ, there had to be a substantial, rather than a speculative, chance of such liability being incurred. There had to be averments that there was a real, measurable risk, but there were no averments on which the likelihood or lack of likelihood of the risk occurring could be assessed. While it was competent to claim for what could be described as "a top-up scheme", there had to be relevant averments in support of such a scheme. The averments about possible changes in local or central government policy or funding were in principle no different from averments that in future the rate of income tax may change, were purely speculative and should not be remitted to probation. All averments in condescendence 7 other than those about the cost of physical aids should be deleted as being too speculative.

Submissions for the pursuer
[7] Mr Sanders pointed out that it was averred at the outset of condescendence 7 that Miss McCrory "now has certain additional special needs". These were detailed in the report mentioned, no 29/1 of process. What was being claimed was more than a speculative loss, and was similar in nature to a loss of employability claim. The averments of loss were sufficient to go to proof.

Discussion
[8] This case does not deal with the important question of principle whether a local authority is entitled to claim from the wrongdoer the costs of providing accommodation or care to an injured party in fulfilment of its statutory duty: see Sowden v Lodge [2004] EWCA Civ 1370 per Pill LJ at para 3. Miss McCrory received accommodation and care from the local authority before the accident because of her disabilities. It is averred that she now has "certain additional special needs" and a claim is made on her behalf for the costs of additional care. The point taken on behalf of the defenders is that these averments are irrelevant because they all appear to be couched in speculative terms. It is submitted in their Note of Argument that the pursuer, who was seeking to establish the converse of the loss of a chance, required to aver (and prove) that there was a substantial or real chance that she would require to fund her own care costs, but her averments in respect of ongoing and future care costs did not cross that "probation threshold" and were therefore irrelevant.

[9] It is well established that averments should not be refused probation unless they can be held to be clearly irrelevant without evidence being led: see Jamieson v Jamieson 1952 SC (HL) 44 per Lord Normand at p 50 and Lord Reid at p 63, and Miller v South of Scotland Electricity Board 1958 SC (HL) 20 per Lord Keith of Avonholm at p 33. To adapt the language of Lord Normand in Jamieson, averments will not be deleted as irrelevant unless they must necessarily fail even if proved: the onus is on the defenders who seek to have the averments deleted, and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed.

[10] It seems to me that the submission for the defenders in this case was tantamount to saying that the pursuer had to aver the standard of proof by averring that there was a substantial or real risk of additional future care costs, as opposed to only a speculative risk. In my view the question whether the claim which the pursuer has averred for care costs is based on a substantial or real, as opposed to a speculative, risk that such costs will be incurred is one which can be determined only after the court has assessed the evidence led on behalf of the pursuer. I find it difficult to envisage how, save in the most exceptional case, the court could determine purely on the basis of the bare pleadings that the risk of a future liability being incurred was speculative and not real or substantial. Although the comments of Lord Keith of Avonholm in Miller at p 53 relate to disposing of an action of damages for alleged negligence on relevancy, I think that they can be applied mutatis mutandis to particular heads of claim for loss. I do not see how in this case I could say at his stage that the claim for additional care costs is based on a merely speculative, as opposed to a real or substantial, risk. While I consider that the jumbled averments in condescendence 7 are most unsatisfactory, I am of the opinion that I would not be justified in deleting any of the claims therein as irrelevant. In my opinion the pursuer is entitled to a proof before answer on the averments contained therein.

Decision
[11] I shall repel the defenders' first plea-in-law of consent and allow a proof before answer, reserving their second and third pleas-in-law.