Patterson v. Sommerville & Anor [2005] ScotCS CSOH_19 (31 January 2005))
OUTER HOUSE, COURT OF SESSION [2005]CSOH19 |
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OPINION OF LORD KINGARTH in the cause GREGORY PATTERSON Pursuer; against ROBERT MASSON SOMMERVILLE AND ANOTHER Defenders:
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Pursuer: McColl; Lefevre Litigation
Defenders: Arthurson; Simpson & Marwick
7 January 2005
[1] In this action, which is subject to the new procedures for actions of damages for personal injuries, the matter came before on 7 January 2005 on the pursuer's motion to allow issues (under and in terms of Rule of Court 43.6(5)). This motion was opposed by the defenders. After hearing argument from counsel, which was addressed over a relatively short period, I granted the pursuer's motion. I have now been informed that the defenders have reclaimed this decision. [2] Counsel for the defenders accepted at the outset that the merits of the action (relating a road traffic accident) were straightforward, and that, in the main, the pursuer's pleadings on damages were full and clear; indeed perhaps fuller than strictly speaking was required under the rules of the new procedures. Be that as it may, it was still important that matters of doubtful relevance should not be left for determination in a case to be tried before a jury. Reference was made to Higgins v DHL International (UK) Ltd 2003 S.L.T. 1301 (in particular at para. 23) and Moore v Alexander Stephen & Sons Ltd 1954 S.C. 331 (in particular pages 334-335). Although the defenders had no specific plea directed to special cause for withholding this case from a jury, there were three matters of doubtful relevance in the pleadings on damages which made the case unsuitable for issues. [3] First, the pursuer averred not merely that he would have been promoted to the position of workshop foreman but that thereafter he had "prospects of being promoted to Manager". As a matter of law, prospects of promotion would only sound in damages if there was a real or substantial chance capable of being measured, and thus a chance of some value. Reference was made to Watt v Bridges 2004 Rep. L.R. 97 (especially para. 38), Allied Maples Group Ltd v Simmons & Simmons 995 W.L.R. 1602 (especially at page 1611) and Doyle v Wallace 1998 P.I.Q.R. 146. In the course of the discussion, counsel appeared to accept that a 10% chance of promotion, and indeed any chance that could be described as other than de minimis, would be enough. He expressly accepted that if the pursuer had averred that he had "reasonable prospects", this would have been enough. [4] Secondly, insofar as the pursuer claimed to have "suffered a loss of employability", it was unclear how this was intended to sit with the claim for loss of earnings. Reference was to O'Malley v Multiflex (UK) Inc. 1997 S.L.T. 362 which was said to be not dissimilar. Counsel, however, appeared to accept that it would be difficult to criticise the pursuer's averments if it was clear that in respect of "loss of employability" the pursuer was claiming for what could also be described as disadvantage on the labour market. [5] Lastly, so far as the pursuer claimed to be "permanently unfit to carry out heavy gardening work, D.I.Y. and home decoration", (apparently as the basis for a claim under Section 9 of the Administration of Justice Act 1982), it was not clear for whose benefit he would have done such work. Reference was made to Jones v M.K. Leslie Ltd 2004 Rep. L.R. 136 (especially at para. 9), albeit that case, strictly speaking, related to a claim under Section 8 of the 1982 Act. Counsel agreed, however, that it appeared that the pursuer lived at home with his parents and (so far as I understood him) that the claim might well be related to them. [6] Counsel for the pursuer argued that on a fair reading of the pleadings, enough had been averred. It was, in the first place, reasonably clear that the pursuer was claiming in respect of promotion prospects which could be described as more than de minimis. In any event, depending on the evidence, it would be open to the Court to direct that the evidence was not such as to entitle the jury to consider this element of the claim. If there was thought to be any difficulty at all, the pursuer was able, and happy, to aver that the relevant prospects were thought to be "reasonable". As to "loss of employability", it was, fairly read, entirely clear that the pursuer's principal claim was for loss of earnings, to which was added a secondary claim for disadvantage on the labour market if, for any reason, he should lose his employment. That was expressed, as it could be as a matter of language, as one for loss of employability. There was nothing unusual in the overall claim that was being made. The case of O'Malley v Multiflex (UK) Inc. could readily be distinguished. Again, if it was thought that there was any difficulty at all, counsel was happy to amend the description of the claim for loss of employability, to read as a claim for disadvantage on the labour market. Lastly, it was clear, on a fair reading, that the pursuer was claiming to be unfit to do certain things for his parents, with whom the defenders were well aware he had always lived and continued to live. Again if there was any difficulty at all about that, counsel was happy to amend to add words which confirmed that. [7] Having considered the submissions made, I was not persuaded - generally agreeing with the submissions made by counsel for the pursuer - that there was sufficient doubt about any of the three matters focussed to dis-entitle the pursuer from issues. Instead, it seemed to me that, although counsel for the defenders' arguments were economically and carefully presented, there was more than a hint that they were being presented on behalf of a party looking to see whether there were any arguments which might be available to resist issues, rather than on behalf of one seeking to express real uncertainties about what was being claimed. There was certainly no suggestion that the defenders had not been able to value the claim as it was presently presented. For the avoidance of doubt, however, and to allay any concerns that the defenders might genuinely have, I was happy to allow the pursuer to amend in the ways suggested; changes which, so far as understood it, would entirely satisfy the defenders' criticisms. Because, however, this was only a belt and braces exercise, which did not affect my underlying view that enough had been averred (particularly perhaps under the new procedures - albeit the significance of these was not fully ventilated in the short debate before me), I chose, in the exercise of my discretion, to award the expenses of this opposed motion to the pursuer.