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Scott & Ors v Vieregge [2005] ScotCS CSOH_42 (22 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 42

PD1425/04

OPINION OF LORD EASSIE

in the cause

COLIN SCOTT and OTHERS

Pursuers;

against

JUSTIN VIEREGGE

Defender:

________________

Pursuers: Doherty, Q.C.; Balfour & Manson (for South Forrest, Inverness)

Defender: Ferguson, Q.C.; Simpson & Marwick, W.S.

22 March 2005

[1] This action arises out of a fatal road accident which took place on 20 September 2001. Those who sadly lost their lives were travelling in the same car and were Mr Robin Scott, his wife Mrs Elizabeth Johnston or Scott, and his mother, Mrs Marion Scott.

[2] Mr and Mrs Robin Scott were survived by their two daughters Victoria, who was 15 years of age at the time, and Jennifer, who was almost 13. In this action damages are sought by the two daughters and by four other relatives, namely the children's maternal grandmother, Mrs Helen Johnston; two brothers of the deceased Robin Scott, whose names are Colin Scott and Gavin Scott; and Mrs Marilyn Scott, the spouse of Colin Scott.

[3] The action was raised after the entry into force of the new rules of procedure in personal injury actions (Chapter 43 of the Rules of the Court of Session, as substituted by Act of Sederunt (Rules of the Court of Session (Amendment No.2)) (Personal Injuries Actions) 2002, SSI 2002/570). The defences contained an admission that the accident was caused by the fault of the defender and accordingly no question as to liability arises. Statements of Valuation in terms of Rule of Court 43.9 have been lodged by both parties, along with documentation intended to support or vouch the respective valuations. The pursuers have duly enrolled a motion in terms of Rule of Court 43.5. They seek the allowance of issues. This motion is opposed by the defender. The Notice of Opposition gives as the ground of opposition that special cause exists wherefor the action is not suitable for jury trial.

[4] In advancing his opposition to the allowance of a jury trial Mr Feguson, who appeared for the defender, acknowledged at the outset that "special cause" (in relation to the Court of Session Act 1988, sections 9 and 11) required to be something that was special to the particular case. He also prefaced his principal submission - to the effect that the complexity in the claims for loss of support and loss of services of the two daughters and their maternal grandmother and the inter-relationship between those claims constituted special cause - with the observation that the new rules should not be seen as having made it easier for pursuers to obtain jury trial or for the defenders to resist. He counselled however caution in allowing issues where the pleadings for the pursuers were over brief or inspecific. The need for a pursuer seeking a jury trial to give proper specification, even as regards claims for services, was exemplified in the Outer House decision in Marshall v PLM Helicopters Ltd 1997 S.L.T. 1039 and the new rules did not prevent a pursuer seeking jury trial from giving fuller specification in his pleadings than might be required for the allowance of a proof before answer.

[5] As already indicated, the special cause invoked by counsel for the defender was what he described as the complexity of the factual questions arising from the nature and interrelationship of the claims for loss of support under the Damages (Scotland) Act 1976 and loss of services under section 9 of the Administration of Justice Act 1982. Counsel acknowledged at the outset, and under reference to McKeown v Sir William Arrol Co Ltd 1974 S.C. 97, that the fact that there were six pursuers and a large number of questions on the assessment of damages which the jury would have to decide did not in itself constitute special cause. Consistently with that acknowledgement, no reference was made by counsel to the claims of the brothers and the sister-in-law of the deceased Mr Robin Scott for loss of society, or the ancillary claims respecting funeral expenses and damage to Mrs Marion Scott's car, as being claims which presented any complexity. Similarly, nothing turned on the existence of claims for loss of society by the daughters or their maternal grandmother. The focus of counsel's submissions on complexity was the claims for loss of support and services by the daughters and the maternal grandmother respectively.

[6] The averments contained in Statement 7 of the Record, respecting the daughters' loss of support are in these terms:

"They have lost financial support from their parents. The financial support for Jennifer would have lasted to about September 2011. The financial support for Victoria would have lasted to about September 2009. With reference to the Defender's averments in answer, admitted that Robin Scott was in receipt of benefits prior to the accident. Elizabeth Scott had nil earnings prior to the accident."

There is thus essentially no dispute as to the extent of the parental income. It is disclosed and vouched as part of the documentation referred to in the Statements of Valuation. The income is modest, consisting only of the father's receipt of a disability pension and incapacity benefit. Although, in the Statements of Valuation, there is a difference in the parties' estimate of the total annual amount of those two sources of income to be taken as the starting figure, the discrepancy is small.

[7] The averments relating to the maternal grandmother's claim for loss of financial support are contained in Statement 10 of the Record in these terms:-

"She [Mrs Helen Johnston] was permanently resident with Robin and Elizabeth Scott and Victoria and Jennifer at the time of the accident. She reasonably anticipated that she would remain living with them for the rest of her life. She has lost the financial support which she received by virtue of a subsidy for accommodation and subsistence which she received from Robin and Elizabeth Scott through living with them. This financial subsidy would have lasted indefinitely for the rest of her life."

[8] As respects the daughters' claim for loss of services, what is averred on their behalf is to be found in Statement 8 as follows:

"Victoria and Jennifer have lost gratuitous personal services from their parents which are ordinary obtainable on payment from a non-relative. These include cooking, cleaning, washing, ironing and repairing clothes, housekeeping chores, including having their rooms decorated and cleaned, being taken to and on sporting and leisure activities, being tutored in connection with homework and learning to drive. It is reasonably estimated that these services would to a greater, and then after the age of 18 years to a lesser, extent have been provided for Jennifer until about September 2011 and to Victoria until about September 2009."

The maternal grandmother's claim for compensation for loss of services is set out in Statement 11 as follows:

"[Mrs Helen Johnston] has lost the gratuitous personal services from her daughter and son-in-law which were ordinarily obtainable on payment from a non-relative. These include cooking, cleaning, and housekeeping services, and car maintenance. In future this would have included being driven. It is reasonably estimated that these services would have lasted indefinitely for the rest of her life."

[9] In his submissions Mr Ferguson submitted as one of several points that there was an overlap between the claim for loss of support and loss of services. This would be a potential source of confusion for the jury. The overlap, and hence the potential source of confusion, identified by counsel was in the respect that the "service" of being "tutored in connection with homework" might really be an aspect of the "benefit of guidance" under the loss of society claim. This appears to me to be at best a nice question of categorisation or cataloguing and it should not be in anyway difficult for a jury to grasp, under instruction from the presiding judge, that if they allow for parental intervention and encouragement in the homework of the teenage daughters under the head of "guidance", it is not to be double-counted under tutoring services. I would observe that no discrete amount for tutoring appears in the services section of the pursuers' valuation. In itself I do not consider that this matter presents any material complication.

[10] Counsel for the defender submitted further that, irrespective of that possible overlap, each of the claims of the daughters and their grandmother for loss of support and services presented complexity. Counsel pointed to the Statement of Valuation respecting the loss of support in the daughters' claims. He drew attention to the fact that loss of support was sought until each of the girls became 23 years of age, but no reason was given for seeking support until that age. While it was averred that the elder daughter was a student in further education, the family income was modest and student grants would be available. In the Statement of Valuation a very precise calculation was put forward involving a breakdown into two periods. By way of example of that precision, for the second period the available parental income was apportioned 57% to the parents and 43% to the daughters. However, said counsel, there could arguably be four periods for the jury to consider, namely (i) the period during which the two girls were at school; (ii) the period during which one girl was at school and one girl at further education; (iii) the period during which the two girls were undergoing further education and (iv) the period during which only one girl remained in attendance in further education. Consequently, said counsel, the jury might be invited to carry out some rather complicated arithmetic.

[11] The claim of the girls' maternal grandmother was submitted by counsel for the defender to be of doubtful relevancy. It appeared from the instance and certain documentary productions to which counsel for the defender drew attention that Mrs Helen Johnston was still living in the family home occupied prior to the accident. So it was not apparent how she had lost the subsidised accommodation averred to have been enjoyed by her while her daughter and son-in-law were alive. Moreover, in the valuations, the income of Mr and Mrs Robin Scott had been apportioned only between them and their daughters, with no allowance for the support of Mrs Johnston.

[12] As respects the claims for loss of services, counsel for the defender submitted that the averments for the pursuers failed to explain how those services would have been provided had the girls' parents not been killed in the accident. The elder daughter was at university and the assumption appeared to be that the younger daughter would follow her into further education. Given the rural location of the parental home, they would be very unlikely to remain at home while studying. So, said counsel, the jury would have to work out how much time each daughter would spend at home during the course of the daughters' further education. The valuation sought to value the parental housekeeping services by reference to commercial rates. However "care" rates were complicated and required to be discounted. In contrast to claims under section 8 of the 1982 Act, which employed the concept of "reasonable remuneration", section 9 services claims were to be quantified as a "reasonable sum". Reference was made to Smith v Forth Ports plc (Temporary Judge J Gordon Reid Q.C.) 2004 Rep L.R. 95. There was thus a risk of the jury being confused by evidence of reasonable remuneration for carers, when their task was to assess a "reasonable sum".

[13] In the whole circumstances, it was submitted, the claims for loss of support and loss of services raised complicated inter-related questions of fact and would require the jury to carry out complicated arithmetical calculations. It was thus submitted that special cause existed in this case for withholding a jury trial.

[14] For his part, Mr Doherty, who appeared for the pursuers, submitted that the heads of claim advanced were neither novel nor complicated and were quintessentially jury matters. As respects the claims for loss of support, counsel for the pursuers stressed that there was only one source of income, namely the pension and incapacity benefits paid to the late Mr Scott. So the starting point was straightforward and there was really no issue for the jury as to the size of "the pie" which had to be shared among the family. There was no need to plead, or prove, a precise apportionment of the family income among those dependent on it - Smith's Executors v J Smart (Contractors) plc 2002 S.L.T. 779. There was likewise no need for the pursuers in a family claim to plead precisely when one member became dependent and another ceased to be dependent (McKeown). Counsel accordingly submitted that neither individually nor together did the daughters' claims for loss of support present any special complexity.

[15] In relation to the claims for loss of services, counsel for the pursuers stressed that the question for the jury would be that of assessing a reasonable sum. There was no need to plead particular rates or particular hours or to present a detailed arithmetical calculation. The claim was not a matter of precise calculation but of broad assessment for which a jury was well suited as a judge. Counsel referred to Stark v Ford (No.2) 1996 S.L.T. 1329; Thompson v Home (unreported, Lord Cameron of Lochbroom, 2 March 1994); and Cronie & Others v Craig & Others (unreported Temporary Judge C.J. Macaulay, Q.C., 25 June 2004).

[16] As respects his opponent's challenge to the relevancy of the maternal grandmother's claim for loss of support, Mr Doherty submitted that her claim was simply that she had lost the support - in terms of her accommodation within their house on a family understanding - of her daughter and son-in-law. The fact that the maternal grandmother continued to live in the same house with the consent of her grand-daughters (to whom, I was informed at the bar, ownership of the house had passed) did not make her claim irrelevant. Counsel referred to section 10(f) of the 1982 Act as excluding from the calculation of the loss of support represented by the loss of the maternal grandmother's accommodation and subsistence within the family home, the benevolent nature of anything which she had received by the consent of her grand-daughters following their parents' death.

[17] In approaching the competing submissions of counsel, I find it convenient first to deal with the proposition of counsel for the defender (which was not foreshadowed in the notice of opposition to the pursuers' motion) that the claim of the maternal grandmother for loss of support is of such doubtful relevancy as to make the case unsuited for jury trial. The claim is perhaps not a common or usual claim in respect that it advances a claim for loss of support supplied by the provision of accommodation and subsistence from the claimant's deceased daughter and son-in-law by the fact of her living in their house with the contemplation that she should do so indefinitely for the rest of her life. However the head of claim described as "loss of support" may include the loss of free accommodation - cf. Hatherley v Smith 1989 S.L.T. 316 - and I did not understand counsel for the defender to submit that in itself such a claim was irrelevant or even of doubtful relevance. His contention was that since it might be inferred that at the current time the maternal grandmother was still living in the same house as that in which she lived before the road accident, it was not evident that she had lost those elements of support. However, that contention appears to me to essentially a contention of fact. Moreover, even if, having inherited the house, the daughters continued to allow their grandmother to stay there, it does not follow that such a permission has the same permanence of relationship as that averred to have existed between the maternal grandmother and the deceased parents of her grand-daughters. In his final response to the argument for the pursuers, Mr Ferguson, for the defender, submitted that the invocation in argument by counsel for the pursuers of section 10(f) of the 1982 Act was misplaced in that the paragraph referred to "payment" of a benevolent nature whereas the provision of accommodation was not a "payment". The argument on this point was limited and I am not persuaded that "payment" should receive that limited construction. But even if that were a correct construction of the statute it would simply mean that the value of the accommodation and subsistence gratuitously provided by the granddaughters to their grandmother since the date of the accident to date, or which might be provided in future, would be set off against the value of the subsidised provision from the deceased daughter and son-in-law. Estimation of those respective values is no doubt an imprecise exercise turning to a substantial extent on an assessment of the relative permanency of the pre- and post-accident arrangements. But there is no reason to think that it involves difficult legal issues or that it may be conspicuously better performed by a judge rather than a jury. In these circumstances I do not accept the submission that this claim is of such doubtful relevance that it renders the claim, and the case, unsuitable for jury trial.

[18] I advert now to the principal submission for the defender, namely that the existence of complexities in the claims of the daughters for loss of support and for services were so great that special cause existed for withholding trial by jury. I shall consider first the claim for loss of support. As I have already indicated, assessment of the parental income is relatively straightforward. It may be noted that no income was received by the girls' mother. So the task for the jury is to assess what might have been provided out of a modest paternal income by way of support to the girls until such time as they were likely to become self-sufficient. Division of the deceased's income between his own support and that of his dependants has to be approached on a broad basis. The fact that, in their Statements of Valuation, the pursuers' advisers have chosen to adopt an approach involving the selection of an Ogden multiplier and have made apportionments between family members in percentages other than what might be described as "round" numbers does not, in my view, alter the essentially broad "jury question" nature of the assessment of loss of support. Counsel for the defender adverted to the likely need for the jury to have regard to a number of periods - four, rather than the two selected by the pursuers' advisers - in which loss of support would require to be assessed as the daughters progressed from school through university or other further education to the point where they were effectively forisfamiliated. However, this is just such an exercise as may have to be performed in any case in which the deceased had a plurality of children in infancy or adolescence. In a passage, to which counsel for the pursuers referred, in the Opinion of the Court in McKeown v Sir William Arrol, at 1033/4 one reads:

"Counsel for the respondents, however, sought to establish the substantial danger of a jury falling into confusion and error by drawing an elaborate and itemised picture of the fluctuating and varying factors which could affect the individual claims for loss of support. In the first place, he postulated the difficulty of a jury determining a global sum for loss of support by having to take into account such things as increases in the deceased's pre-accident wage, the incidence of tax and an increasing discount for the deceased's own support, had he lived. In the second place, even if a global sum for loss of support could be satisfactorily assessed, further difficulties would arise in assessing individual claims for loss of support within the global figure by reason of the fact that from time to time, as one child became self-supporting, the remaining dependants would require to be taken as benefiting accordingly. This, it was said, was something outwith the competence of a jury to cope with.

In dismissing this argument, we have only two observations to make. Firstly this is not a feature particular to the circumstances of the present case. It would apply to any case where there were a number of dependants. In the second place, this so-called problem is one with which juries have had to cope in the past, and, under proper directions, there seems to be no reason why they should not cope with it in a satisfactory manner in the future. In effect this argument, if sound, would mean that no fatal case involving solatium and loss and support would be appropriate for jury trial if there were a number of claimants. This is a proposition which we cannot endorse."

In my view that passage is apposite as respects the claimed complications in the present claims for loss of support by the two daughters. I would add that in McKeown there were claims for loss of support by the widow, six children and the mother of the deceased. Counsel for the defender also submitted that the claim was complicated by the existence of student grants (without which, given the modest nature of their father's income, the daughters could not proceed to further education) but in my view the introduction of student grants into the assessment is well within the collective capacity of the jury to understand and to take into proper account.

[19] A reflection of the fears professed by counsel for the defenders in the McKeown case, which were rejected by the Second Division in its decision, respecting the claim for loss of support advanced by the family of the deceased Mr McKeown, is also to be found, in my opinion, in the concerns advanced by Mr Ferguson regarding the daughters' claims for services in the present case. The claims for loss of services proceed under section 9 of the 1982 Act which, in effect, allows to the daughters a "reasonable sum" to represent the services which would have rendered by the deceased parents had they not died as a result of the road traffic accident. The services claimed by the daughters are very ordinary household matters of a type known, if not to every citizen, at very least to almost every household with teenage children proceeding to further education. No doubt, in many such households the balance between what should be provided by the parents to the children and by the children to their parents, it will be a matter of normal family disputation and eventual convention. Mr Ferguson's complaint related to what he indicated as being the perceived difficulty for a jury in deciding the extent to which such services might be rendered since it was evident that during further education the daughters would be likely to be resident away from home in order to pursue their courses of further education. The notion that while attending university or college a teenage child or young adult may partially live away from home and so be reliant (if that be the right term) on parental cooking, laundering of clothes, and cleaning of his room at home solely during his vacations or weekend home visits, is, in my view, a matter well within the comprehension of a jury. Likewise, in my view, having heard evidence of the particular family circumstances, a jury is well able to assess the measure of the likely parental support in terms of such a practical domestic assistance as might be afforded to the student offspring and to value it accordingly.

[20] In addition to his concerns respecting the jury's ability to assess the practical extent of the domestic services which might be rendered by the parents to their daughters during the later years of secondary education and the years of tertiary education, counsel for the defender expressed the further concern that the pursuers' Statement of Valuation of those services referred to "commercial rates" which, he said, would require a "discount". It is no doubt the case that, whatever may be the position under section 8 claims, where a claim is advanced under section 9 of the 1982 Act the criterion to be addressed is that of a reasonable sum for the loss of the services which would have been rendered. Counsel for both parties were agreed that, while of perhaps uncertain status, the "Statement of Valuation" provided for under the new rules in personal injury claims was primarily to aid settlement of personal injury actions and that whatever was stated in those valuations was not binding on either party. The particular figures proffered in the Statement of Valuation are understandably not foreshadowed or replicated in the pleadings. The pleadings do not advance any claim which is confined to particular rates or hours. Notwithstanding the terms of some of Mr Ferguson's preliminary observations on the need for specification where the pursuer is seeking a jury trial - and therein his reference to Marshall v PLM Helicopters Ltd, which I regard as having turned on the very special circumstances of that case, - it is, I think, well recognised that it is not necessary that a claim for services be detailed by way of giving particular hours or rates before issues for trial by jury may be allowed. See Stark v Ford (No.2) 1996 S.L.T. 1329. Certain observations, respecting a claim for services, of the Lord Ordinary in that case were seen by the Extra Division as being a comment, the validity of which the Extra Division did not question, to the effect that:

"...where one is dealing with a claim which is of a kind which defies precise quantification a jury is in as good, or even better, a position than a judge to make the assessment...".

[21] I have accordingly come to the view that for the foregoing reasons, neither individually nor collectively, do the claims for loss of support or for loss of services which were in question in the discussion before me present a sufficient degree of complexity or difficulty in factual terms as to constitute "special cause" for withholding trial by jury.

[22] I shall therefore grant the pursuers' motion for the allowance of issues for trial by jury.