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Cite as: [2005] ScotCS CSOH_71, [2005] CSOH 71

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May & Anor v. Jeeves Parcels Ltd (t/a ANC (Aberdeen)) & Anor [2005] ScotCS CSOH_71 (03 June 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 71

PD1963/04 & PD1962/04

OPINION OF LORD WHEATLEY

in the cause

DAVID MAY

Pursuer;

against

JEEVES PARCELS LIMITED t/a ANC (ABERDEEN)

Defenders

And

BARBARA SUSAN MACKIE HAMMOND or MAY

Pursuer;

Against

JEEVES PARCELS LIMITED t/a ANC (ABERDEEN)

Defenders:

________________

Pursuers: Ms Ross; Anderson Strathern, W.S.

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

3 June 2005

[1] Both pursuers have raised actions for damages against the defenders in respect of a road accident which occurred on A90 north of Aberdeen on 10 January 2002. The defenders have admitted liability. The pursuers suffered serious and extensive injuries. The claim for the first pursuer, David May, includes past and future solatium, past and future wage loss, past and future services and various outlays. His claim for pension entitlement has been deleted. He also avers that he will require to obtain new accommodation as a result of his injuries. On record his claim for past and future services is said to be in terms of both sections 8 and 9 of The Administration of Justice Act 1982. The claim of the second pursuer, Barbara May, comprises past and future solatium, past and future wage loss, and past and future services in terms of section 8 of the Act. The pursuers have now enrolled motions for issues to be allowed in order to send their case to be heard by a jury, and these motions are opposed by the defenders. Put briefly, the defenders claim that the pursuers' averments in respect of their services claim are confused and lack sufficient specification to justify sending the matter to trial by jury. They also claim that the nature of the services which the pursuers claim is unclear on their pleadings, and that no valuation is offered for a number of the various headings under which the component parts of the claims are described. In these circumstances, the defenders argue that the case should be sent for a proof before answer.

[2] The relevant legislation in disputes of this kind is as follows:-

Section 11 of the Court of Session Act 1988 provides:-

"Subject to section 9(b) of this Act, the following actions if remitted to probation shall be tried by jury -

(a) an action of damages for personal injuries.

..........

Section 9 of the same Act provides:-

"The Lord Ordinary may allow a proof -

(a) in any action, other than an action enumerated in section 11 of this Act, without the consent of both parties and without reporting to and obtaining the leave of the Inner House;

(b) in any action enumerated as aforesaid, if the parties to the action consent thereto, or if special cause is shown".

[3] Section 7 of the Administration of Justice Act 1982 provides:-

"Where a person (in this part of this Act referred to as 'the injured person') -

(a) has sustained personal injuries, or

(b) has died in consequence of personal injuries sustained,

as a result of any act or omission of another person giving rise to liability in any person (in this part of this Act referred to as 'the responsible person') to pay damages, the responsible person shall also be liable to pay damages in accordance with the provisions of sections 8 and 9 of this Act".

Section 8(1) of the same Act provides:-

"Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sums as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith".

Section 9 of the same Act provides inter alia:-

"(1) The responsible person shall be liable to pay to the injured person a reasonable sum by way of damages in respect of the inability of the injured person to render the personal services referred to in subsection (3) below.

(2) .....

(3) The personal services referred to in subsections (1) and (2) above are personal services -

(a) which were or might have been expected to have been rendered by the injured person before the occurrence of the act or omission giving rise to liability,

(b) of a kind which, when rendered by a person other than a relative, would ordinarily be obtainable on payment, and

(c) which the injured person, but for the injuries in question, might have been expected to render gratuitously to a relative.

...................."

[4] The present actions are ones to which Chapter 43 of the Rules of Court now applies. Rule 43.2 provides inter alia:-

"(1) The summons shall be in Form 43.2-A and there shall be annexed to it a brief statement containing -

(a) averments and numbered paragraphs relating only to those facts necessary to establish the claim;

.........".

Rule of Court 43.9 provides inter alia:-

"(1) Each party to an action shall make a statement of valuation of claim in Form 43.9.

(2) A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged in process.

..........".

Each pursuer has lodged what appears to be a partially incomplete statement of valuation of claim but in neither case is there a list of supporting documents.

[5] There is some advice tendered by the writers of the Parliament House Book in supplement of what is said about the form of summons in terms of Rule of Court 43.2. The learned authors provide a style of a statement of claim, indicating the nature of the kind of brief averments which are to relate only to those facts necessary to establish the claim. In paragraph 16 of this example, they note that the form should provide that the pursuer seeks damages under certain heads of claim, and thereafter in the example various heads of damage are indicated, such as solatium, earnings, and claims for services in terms of sections 8 and 9 of the Administration of Justice Act 1982. All of these headings are followed by the injunction "insert amount if known?". Following the introduction of the new Chapter 43 Rules, Practice Note 2 of 2003 was issued. Under the heading "Rule 43.9 - Statement of Valuation of Claim", the Practice Note provides as follows:-

"The statements of valuation required by this rule are not binding upon the parties who make them. It is, however, intended that these statements should reflect a real assessment of the value of the claim and accordingly it will be open to either party to found upon the making of its own statement of valuation or upon that of the other party".

[6] The authorities commonly used in debates on this topic are also well known. In terms of the relevant sections of the Court of Session Act 1988 cited above, the defenders have to demonstrate special cause as to why the case should be withheld from a jury. Lord Justice Clerk Thomson in Boyle v Glasgow Corporation 1949 S.C.254 (at 261) made it clear that a properly drawn record is essential in a jury trial, and Lord Gill (as he then was) in O'Malley v Multiflex (UK) Inc 1995 S.C.L.R.1143 (at 1145D) suggested that a useful test in this area was whether on the pursuers' pleadings "adequate and effective directions could be given to, and applied by, the jury on the contentious question". In more general terms I think it is accepted that for the defenders to establish that special cause exists in any particular case for withholding the cause from trial by jury, the speciality must be something which applies to the particular case in question. If there is no such special cause, the case must be sent for trial by jury.

[7] There is no doubt that a critical lack of specification in the pursuer's pleadings on any particular point of significance or materiality may amount to a special cause in terms of section 9(b) of the Court of Session Act 1988. However, a mere failure on the part of a pursuer to provide what is said to be a satisfactory level of detailed averments on a particular aspect of the claim will not necessarily lead to the conclusion that the case would more suitably be heard by a judge, rather than by a jury. A special cause in terms of the section cited above, of such significance that it has the effect of depriving a litigant of what Parliament has decided is his statutory right to have his case tried, and his damages assessed, by a jury, must clearly be based on weighty and material considerations. In addition, regard must be had to the nature of the pursuer's claim. In any given case, for example, the pursuer's averments may allow the judge to direct the jury that a particular head of damages can be considered for the provision of an award, on the basis of detailed figures found in the pleadings and in the statement of valuation of claim. Again, the averments in the pursuer's pleadings, supported by any detail that might be found in the statement of valuation of claim, may be sufficiently specific only to allow an award to be made in general terms, perhaps over any period that may be indicated. On the other hand, the pursuer's averments may be so inadequate that the judge has to direct the jury that no proper claim can be made under that head of damages at all. In none of these situations will there necessarily be an identifiable special cause for withholding the case from jury trial. There is no logical reason why relatively minor discrepancies, omissions or seeming confusions in describing damages claims, (or in any other part of the pursuer's case), and which admit of reasonably ready resolution, should result in the conclusion that the case should be heard by a judge. Equally, if a particular head of claim is merely identified, and is not supported by any averments, then that part of the claim should simply be ignored. The judge in any of these circumstances will be in exactly the same position, and certainly in no better a position, than a jury. For a case to be sent to proof, or proof before answer, on the basis that the specification of a particular part of the pursuer's case is inadequate, the averments in support of that part of the case have to be, in my view, so confused or misplaced that it would be unsafe and unfair to leave to the jury the decision as to whether an award should be made. In other words, the lack of specification in that situation would have to be such that it would preclude the trial judge from being able to direct a jury as to whether or not an award under a particular head of damages could be made at all.

[8] In the present case, what is said on record should give a sufficient indication of the nature and extent of the pursuers' claims in terms of sections 8 and 9 of the Administration of Justice Act 1982 to allow directions by the judge to be given to a jury. In particular, the judge is entitled to understand from the pleadings what services are to be provided, who is to provide those services, and for how long the services will be required. He should be placed in a position that he can indicate, at least in general terms, what amounts of money may be involved in the provision of those services. He should also be made aware of what services the pursuer can no longer provide for himself. If the judge is able to give appropriate directions to the jury from an examination of the pleadings in this fashion, then any claims by the defenders that they have not been given sufficient notice about the nature of the claim should not succeed. More significantly, in that situation there is unlikely to be any evident special case which would justify the case being withheld from trial by jury.

[9] I now turn therefore to the averments in statement of value of claim in the present case in more detail. In the action at the instance of the first pursuer, his claim on record for solatium, both past and future, is sufficiently described, and appears as heads of claim with both those components in the statement of valuation of claim. Precise figures for these two aspects of his case are entered in the valuation column of the form. The same is true of his past wage loss, and details of his claim for future wage loss are also indicated in the form, although total figures are not entered into the valuation column. This latter fact is of no particular moment. No complaint can therefore be made, or is made, in respect of those parts of the pursuer's claim.

[10] Beyond that, the pursuer specifically avers that he has claims in terms of sections 8 and 9 of the Administration of Justice Act 1982. He says that both his daughters have given up their jobs to assist in his care, and that his wife also cares for him. It is clear from the pleadings that he considers that these arrangements will require to be permanent. The first pursuer further avers that should his wife be unable to look after him he will require to purchase care. The claim for past and future services is fully described in the form of statement of claim, apart from the fact that no figures of any kind are given other than what appears to be a general multiplicand and a multiplier. There are a number of particular outlays mentioned on record, and a different and much more detailed list of outlays is described in the statement, together with related costs. Moreover, the pursuer also claims that, because of his condition, it is likely that he will have to purchase a ground floor house at some unspecified time in the future. No mention has been made of the cost of this and this matter is not mentioned at all in the statement of claim.

[11] The position of the second pursuer is broadly the same. However, her claim for services is specifically restricted to section 8 of the Act in respect that her daughters have given up their jobs to look after her and will assist her with bathing, dressing, shopping and housework. The second pursuer also claims in respect of outlays, but these are not specified on record, and are not mentioned at all in the statement of value of claim. She also says that she formerly carried out home decorating but would now have to pay a tradesman to do this. No mention is made of section 9 in her pleadings, nor is there any quantification of such a claim, and no mention of this claim is made in the statement of valuation of claim.

[12] In these circumstances the submissions of counsel for the defenders were particularly directed at the pursuers' claims for services, which he said were wholly lacking in specification, despite the obvious fact that they were plainly a significant and substantial part of the overall claim. It was unclear what precise claim under section 8 of the Act the first pursuer was making, and there was no global figure for that in the statement of valuation of claim. There were no averments of any claim under section 9 of the Act. No quantification of the cost of buying a new house at some unspecified time in the future has been provided. In respect of the second pursuer the position in general terms was the same. No outlays were specified. No valuation was offered of the section 9 claim by the second pursuer to the effect that she could no longer do home decorating. Defenders' counsel also made some comments about possible confusions and conflicts between the respective claims of the first and second pursuers but I think it would be accepted that these were merely debating points.

[13] In response, counsel for the pursuers argued that the requirements of notice had been satisfied and that the parameters of each claim were discernible from the pleadings. For example, each head of claim for services had been identified as past or present, the supplier of the services had in each instance been nominated, and it was clear for how long the services in question would be provided. The status of the statement of valuation of claim was such that it did not bind the pursuers in the way that the pleadings are apt to do. Accordingly, criticism of the statements did not amount to criticism of the pleadings. The rules under the new Chapter 43 provisions are specifically designed to make pleadings far briefer than formerly. Reference was made to what was said by Lord Marnoch in Stark v Ford (No.2) 1996 S.L.T.1329 at 1330. Counsel also argued that there may well be situations where a precise quantification cannot be anticipated, such as in the circumstances where the pursuer might need a new house, and detailed specification of such averments would not be possible. Reference was made to Currie v Strathclyde Regional Council Fire Brigade 1999 S.L.T.62; Stewart v Nicoll 2003 S.L.T.843 and Scott v Vieregge (unreported), 27 March 2005. Counsel also argued that this was not a complex case; the first pursuer will require care on a full time basis for the rest of his life and will plainly require to purchase such care if that is not available from members of his family. It is not possible to say at this stage what future care costs will be. But a jury would be able to come to a view as to what kind of figure should be awarded under this head of claim. Counsel accepted that it might be preferable that specific figures were described in the valuation of claim form but this would not always be possible. The same consideration applied to the criticisms made by the defenders' counsel in respect of the second pursuer's case, although it was accepted that there was no specification of the claims made under section 9 of the Act.

[14] In considering whether or not the defenders have established that there is sufficient cause to withhold the cause from jury trial, regard must principally be had to the state of the pleadings as they currently stand at the time of debate. The statements of value of claim are of course of significance, but the terms of those statements are not binding upon the parties. What is said in the statements is only capable of supplementing what is said in the pleadings.

[15] The fact that references to claims under section 8 or section 9 of the Administration of Justice Act 1982 are wrongly described in the pursuers' pleadings does not, to my mind, have any particular significance at this stage. Whether a claim described in the pleadings comes under section 8, as a provision of services by a relative, or under section 9, as payments which require to be made by the injured person for services which he formerly supplied himself, is something familiar to any lawyer dealing with these matters, and the fact that such claims may be attributed to the wrong section, or are not attributed to either section, makes no difference as to whether or not the case can be heard by a jury or not. What is contained in the pleadings in the present case, though perhaps unsatisfactory and possibly not accurately representative of the pursuers' actual claims, is in my view enough to allow a judge to direct a jury on the apparent extent of those claims.

[16] It is of course to be expected that in terms of competent pleading practice the statement of value of claim will faithfully reflect the various heads of claim made on record. This should be a relatively straightforward matter, and it is distressing to discover in the present case that the correspondence between the contents of the valuation of claim form on the one hand and what is said in the pleadings on the other is less than complete. Failure to achieve this simple exercise in harmony seems to be careless and slipshod and may limit the proper extent of those claims. Substantial sums are involved for these pursuers who appear to have received terrible and life changing injuries over three years ago, in respect of which liability is not disputed. However, unfortunate though that might be, it is undoubtedly the case that some heads of claim are not readily susceptible of precise calculation. Claims under section 9 (as noted by Lord Eassie in the case of Scott v Vieregge) are largely jury matters and specific figures in either the pleadings or the valuation claim form may not be necessary or appropriate. In respect of section 8 claims no doubt some degree of specification is desirable, but again if the pursuer declines to provide a detailed claim for any particular item, I can see in principle no reason why the judge cannot direct the jury to provide a general overall figure for that particular head of claim, for as long as they think it will be required, as opposed to a precisely calculated figure which depends on specific rates and times. In terms of Chapter 43 of the Rules of Court, which apply to these cases, the pleadings need only be the barest or briefest of statements as to what the claim consists of. Provided these statements allow the judge to tell the jury what the various parts of the claim are, and at least in general terms how the valuation of those claims should be approached, there would appear to be no reason to withhold the case from a jury. If the judge is not able so to direct the jury on any parts of the claim for damages, because of defects in the pleadings or in the evidence, he will no doubt advise the jury that that part of the claim cannot be quantified, and that in respect of it no award should be made.

[17] Applying these various views to the submissions in the present case, the first pursuer, as noted earlier, has claims in terms of section 8 of the Administration of Justice Act 1982 for past and future full-time care by his wife and two daughters. This claim is not accompanied by any detailed costings, other than a multiplicand and a multiplier in respect of future loss. As a consequence the judge will be able to direct that from the date of the accident until the present the jury can make a general award for past services supplied by his family, no doubt with some regard to the figure given in the form for future loss, and that for future services an assessment can be made on the basis of a maximum annual figure of £40,000 over a projected period of nineteen years. I can see no particular difficulty in the provision of such directions. The jury will also be entitled to consider that, in the event that his family is unable to render such care, the first pursuer will require to purchase it. That is a statement that may be thought to be obvious and does not seem to me to have any consequence for the calculation of damages. The first pursuer is also entitled to recover the outlays which are detailed in the pleadings and statement of valuation of claim. That again appears to be entirely straightforward. In addition, the jury will be able to award him a sum in compensation for the fact that he will require to move house in the future. That sum will not be based on any assessment of the valuation either of the house which he has to buy or the house which he will require to sell. The first pursuer has no claim under section 9 of the Act. In these circumstances there appears to be no matter of difficulty that will prevent a judge giving adequate directions to a jury in respect of the first pursuer's services claims.

[18] As far as the second pursuer is concerned, she will be able to claim for past and future solatium, the valuations of which are contained in her statement of valuation of claim. Despite what is said on that form, she has no claim on record for past or future wage loss. She will also be able to claim in terms of section 8 of the Act for the services rendered to her by her daughters, who will require to care for her. However, there is no detailed costing of this, and no indication of its extent or total value. Accordingly, the judge will require to direct the jury, if he is able to on the evidence, that they can make an award based simply on the fact that she will require such help in the future, without regard to any specific costings or time period. Again, that should be susceptible to a simple direction. The second pursuer will also have a claim in general terms under section 9 of the Act (although that section is not referred to in terms) because she can no longer do home decorating and will have to employ others to do this for her. She has no claim for outlays, which clearly would require to be specified. All of these matters seem entirely straightforward and the significant special cause which would be required to remove the matter from trial by jury is simply not present. Indeed, on the state of the current pleadings and statements of value of claim, a jury with their collective experience is likely to be far better equipped to come to a view on these matters than a judge would be. I can therefore see no particular virtue in sending these pleadings, incomplete though they may be, for resolution by a judge rather than a jury. In these circumstances I shall refuse the defenders' motion and allow issues.

[19] Finally, I should add that the motion which prompted this Opinion was noted by those who enrolled and opposed it as requiring fifteen minutes for disposal. Such a prediction was a serious underestimate. Counsel who conducted the hearing (who were not responsible for this inaccurate forecast) presented their submissions with clarity and brevity, but the hearing still took two hours. This practice of underestimating the time a case will take is apparently widespread, and is undertaken because of a perception that an indication that the case will only take a few minutes will obtain some kind of priority in being put out for a hearing. However, I am advised that this belief is wholly unfounded, and that the consequence of such practices is a considerable measure of disruption to the proper and orderly programming of business. It is to be hoped that counsel will in future take some care to forecast accurately how long such hearings will take.