Scottish Court of Session Decisions

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Cite as: [2006] ScotCS CSOH_127, [2006] CSOH 127

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 127

PD238/06

OPINION OF LADY PATON

in the cause

ANDREW LOGIE as guardian of the child WAYNE DREW LOGIE

Pursuer;

against

FIFE COUNCIL

Defenders:

________________

Pursuer: Comiskey, Advocate; Morisons

Defenders: C. Maclean, Advocate; Simpson & Marwick

16 August 2006

Proof or jury trial: claim in respect of potential football career

[1] Wayne Drew Logie ("the pursuer") was born on 13 December 1988. On 10 February 2003, when aged 14, he was attending a chemistry class at Buckhaven High School, Fife. A glass beaker exploded. Glass struck the pursuer's left eye. The eye injury affected his sight. He seeks damages.

[2 ] With the assistance of his father as guardian, the pursuer raised an action in the Court of Session under the abbreviated personal injuries procedure. Statement 5 of the summons contains the following averments:

" ... The injury to the child's eye prevents him from pursuing any career which requires unhampered three dimensional vision. As the child now requires moderately strong spectacles to correct his vision he is no longer able to participate competitively in any contact sports. Prior to the accident the child was a keen footballer and intended to pursue a career as a professional footballer. During the 2001/2002 and 2003/2004 seasons the child played for Wemyss United Football Club. During the 2002/2003 season he played for Greig Park Rangers Football Club. In addition, he was being coached by the SFA Football Development Officer with Fife Council, Paul Freeman. The injury to his left eye prevents him from pursuing such a career. Accordingly, his injuries have placed him at a disadvantage on the labour market and have diminished his employability ..."

[3 ] The pursuer's Statement of Valuation of Claim contains the following entry:

Head of Claim	Components	Valuation
Loss of employability	The pursuer has been denied the opportunity of pursuing a career as a professional footballer as a result of the injury to his left eye.	£100,000

At the end of the Statement of Valuation of Claim, the Schedule of Documents lists two medical reports by a consultant ophthalmic surgeon, post-accident GP medical records, post-accident medical records from Victoria Hospital, Kirkcaldy, post‑accident medical records from Queen Margaret Hospital, Dunfermline, and a letter from the Scottish Youth Football Association (SYFA) dated 2 February 2005. That letter, addressed to the pursuer's solicitors, states:

" ... Please find noted below Wayne Logie's club history.

Season 2003/2004 Wemyss United - Manager Alexander Farmer ...

Season 2002/2003 Greig Park Rangers - Manager Colin Mackay ...

Season 2001/2002 Wemyss United - Manager Alexander Farmer"

[4 ] The pursuer enrolled a motion for issues. That motion was opposed, for the following reason:

"The pursuer's principal claim for damages is for disadvantage on the labour market, on the basis that the child, Wayne Logie, would have pursued a career as a professional footballer; this claim is highly speculative, inspecific, and if it remains on record, renders the case unsuitable for issues."

[5 ] The motion was argued on 30 May 2006.

Submissions for the defenders

[6 ] Counsel for the defenders submitted that there was special cause rendering the case unsuitable for a jury, namely the lack of specification of the claim for future loss. Submissions would be presented in three chapters: (i) Basic principle; (ii) Whether the new personal injuries rules in Chapter 43 of the Rules of the Court of Session had altered the basic principle; and (iii) The effect (if any) of the Statement of Valuation of Claim.

Basic principle

[7 ] Counsel submitted that there was such a lack of specification in respect of future loss as to make the case inappropriate for determination by a jury. The averments gave the defenders no reasonably adequate notice of the evidence which would be led, and the extent of the claim. There was no clear basis upon which directions could be given to a jury.

[8 ] The starting point in the authorities was Timoney v Dunnery, 1984 S.L.T. 151, concerning an 11-year-old boy injured in a traffic accident. While that case pre-dated the new personal injuries rules in Chapter 43, it nevertheless remained apposite in the circumstances of the present case. The defenders had no notice of the dimension of the expected loss. The career of a professional footballer was relatively short: but it was not averred what sort of remuneration was expected, over what period of years. There was a vast range of salaries payable to professional footballers. Some salaries were large, some were small. The averments gave no indication of the salary level which the pursuer was likely to achieve. Nor did they state the period during which he expected to be earning as a professional footballer. On the present pleadings, there was nothing which the trial judge could take as a criterion upon which to base the calculation of future loss. It was questionable whether adequate directions could be given to the jury, as there was nothing upon which the directions could be based.

Whether Chapter 43 personal injuries rules made a difference

[9 ] Counsel referred to Fallone v Lanarkshire Acute Hospitals NHS Trust, [2006] CSOH 51, in particular paragraphs [14] and [15]. The test was whether the matter was simple and straightforward, such that adequate directions could be given to the jury: cf. dicta of Lord Gill in O'Malley v Multiflex (UK) Inc, 1997 S.L.T. 362 at page 363. That test remained applicable despite the introduction of new rules of court in Chapter 43. The new rules could not alter the presentation of the case to the jury. It was necessary to give clear directions about calculation of loss. When one considered what directions would be given to a jury in the present case, it was difficult to see how the jury could be directed about the calculation of future loss. The starting point was the Record: but there was nothing in the pleadings to assist the judge in deciding what directions to give. There were no averments upon which adequate directions could be based.

The status of Statements of Valuation of Claim

[10] The new rules provided for Statements of Valuation of Claim as set out in Form 43.9. Form 43.9 included the following entry:

Head of claim

Components

Valuation

Future wage loss

Multiplier

(....................)

Multiplicand (showing how calculated)

Discount factor applied (if appropriate)

Or specify any other method of calculation

£x

The pro forma therefore envisaged the disclosure of a multiplier, multiplicand, and discount factor (if any).

[11 ] The question in the present case was whether the pursuer's Statement of Valuation of Claim could fill the gap left by the pleadings. For example, the section headed "Components" might give a specific multiplier and multiplicand, with any relevant discount factor. Alternatively another method of calculation might be specified. The important point was that a method of calculation would be set out. The status of Statements of Valuation of Claim was discussed in Easdon v A Clarke & Company (Smithwick) Limited, [2006] CSOH 12, particularly paragraph [11] et seq. If one followed the approach adopted in Easdon, and accepted that a Statement of Valuation of Claim could be taken into account when assessing the question of fair notice, the statement lodged on the pursuer's behalf simply emphasised the wholly inspecific nature of the claim. The relevant entry in the pursuer's Statement of Valuation of Claim (quoted in paragraph [3] above) contained no multiplier, no multiplicand, no discount, no guidance as to method of calculation. The figure of £100,000 appeared to have been plucked out of the ether. The statement therefore emphasised the lack of sufficiently specific averments to support that head of claim. The statement in effect clearly showed that there was no rational basis to the head of claim. The pleadings together with the Statement of Valuation of Claim gave no basis upon which a judge could direct a jury.

Concluding submissions

[12] Counsel again referred to Timoney v Dunnery, cit. sup., and submitted that there were certain cases where the difficulty surrounding the assessment of a particular head of claim was such as to amount to special cause. This was such a case. If the pursuer was intent on pursuing the head of claim, more specific detail should be set out in the pleadings and the Statement of Valuation of Claim. As matters stood, there was no basis upon which the judge could direct a jury. Issues should be refused.

Submissions for the pursuer

[13 ] Counsel reminded the court that the pursuer had been a 14-year-old schoolboy at the time of the accident. He was not in employment. In a case of that nature, a claim for future wage loss was necessarily speculative to some extent.

[14 ] The relevant averments could be found at page 10 of the Record. The question was whether any lack of specification was such that the case should be kept from a jury. The level of precision demanded by the defenders presented a difficulty in the circumstances. It was accepted that no starting point had been given, but at least an end point had been given, namely £100,000. Reference was made to McLaughlin v Shaw, 2000 S.L.T. 794, particularly pages 795J-796E.

[15 ] In Easdon v A Clarke & Company (Smithwick) Limited, cit. sup., Lord Kingarth saw "no good reason why regard should not be had to [Statements of Valuation of Claim] in any question of whether fair notice has or has not been given of the detail of claims made." The schedule to the Statement of Valuation of Claim contained the letter from the SYFA. That could be taken into consideration along with the averments at page 10 of the Record.

[16 ] Reference was then made to the Practice Note No.2 of 2003, which provided:

"The statements of valuation required by [Rule 43.9] 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."

[17 ] Counsel submitted that the court could, in the context of testing fair notice, look at the Statement of Valuation of Claim for any information it contained. In the present case, the pursuer had given notice that he had intended to pursue a career in football. Counsel for the defenders had submitted that there was a vast range of remuneration available to professional footballers. In response, counsel for the pursuer suggested that the figure of £100,000 indicated that the claim was not "at the top end" of that range: some professional footballers could earn that amount in a month.

[18 ] Reference was then made to another section of the Practice Note No.2 of 2003, under the heading Rule 43.6 Allocation of diets and timetable. Practitioners criticising the specification of a pursuer's averments were directed to give written opposition to the pursuer's motion for further procedure, including "details of the averments which ought to be made and which have not been made ... so that the pursuer may have an opportunity to consider whether to meet any such objections in advance of the hearing of the motion". The defenders had not given the pursuer such written notice. The only notice had been the arguments presented in court. If therefore the court were not persuaded that there was sufficient on record to allow issues, counsel sought leave to amend.

Reply for the defenders

[19 ] Counsel for the defenders pointed out that the defenders did not seek a debate. Accordingly the part of the Practice Note concerning Rule 43.6 did not apply.

[20 ] In McLaughlan v Shaw, cit. sup., the pursuer had given clear and specific details about his level of earnings and his loss. The case of Stark v Ford (No.2), 1996 S.L.T. 1329 (referred to in McLaughlan) concerned services, and whether there should be averments about which family members were rendering services, and the precise number of hours. Neither decision was immediately relevant to the present case.

[21 ] In relation to Statements of Valuation of Claim and the case of Easdon v A Clarke & Company (Smithwick) Limited, cit. sup., counsel submitted that, in the present case, there were no averments giving a factual measure of loss. In the statement, there was simply a figure. In relation to the Schedule of Documents, counsel's primary position was that the SYFA letter should not be taken into account. The decision in Easdon did not suggest that any supporting documents listed in the schedule could be taken into account when assessing whether fair notice had been given. But in any event, even if the SYFA letter were taken into account, it added nothing to the pleadings. The letter simply set out the pursuer's club history. There was nothing about any likely level of earnings, any likely career or length of career, or where the pursuer might have played.

[22 ] In assessing the pursuer's pleadings, there were two interlinked questions, namely (i) fair notice, and (ii) whether adequate and effective directions could be given by the judge to the jury about how to measure that head of claim. In the present case, even taking into account both pleadings and Statement of Valuation of Claim, the material before the court fell far short of what was necessary to enable the trial judge to give adequate directions.

Decision

[23 ] Having taken the matter to avizandum, I issued the following decision on 30 May 2006:

"The pursuer in this case was 14 at the time of the accident. He was not in employment. He had no level of earnings. His future was a matter for speculation. That future included the possibility that he might have pursued a career as a professional footballer.

In cases such as this, courts have in the past made lump sum awards for loss of employability or disadvantage on the labour market. There is often no clear method of quantifying such an award. The court simply awards what it thinks fit in all the circumstances.

In the present case, there is notice in both pleadings and Statement of Valuation of Claim that it is a loss of employability award which the pursuer seeks. The case is therefore simpler than, for example, O'Malley v Multiflex (UK) Inc, cit. sup., where there was concern that the jury might be confused by the presentation of claims for both loss of employability and loss of earnings.

Accepting therefore that there is notice of the type of award sought, the following questions arise:

1. Whether there should be greater specification: for example, the level of expected pay as a professional footballer; the likely length of career; and where the pursuer would have been likely to play.

2. Whether adequate directions could be given to a jury.

Specification

In relation to specification, I do not accept that any greater specification is necessary. Standing the pursuer's age at the time of the accident, it is a matter of pure speculation whether he could have furthered his football career, and if so, how successfully, at what levels of remuneration, and where. In my view, any attempt to give further specification would import too many assumptions and predictions about the pursuer's future. It is simply not possible accurately to predict how he would have fared but for the accident. As counsel for the defenders correctly pointed out, there is a vast range of salaries earned by professional footballers: the salary can be a large sum, or very little. In my view, a jury is as well-placed as a judge to make an assessment of an appropriate award (if any) in the circumstances.

Counsel's submissions included arguments about the status and effect of a Statement of Valuation of Claim. I accept that it would be unrealistic not to look at the Statement of Valuation of Claim when assessing whether fair notice has been given of the detail of the claim made (although the basic relevance of the claim may still require to be tested by the pleadings): cf. Easdon v A Clarke & Company (Smithwick) Limited, cit. sup. I also accept Miss Maclean's submission that the decision in Easdon did not extend to the documents listed in the Schedule to the Statement of Valuation of Claim. As I consider that Miss Maclean was correct in her contention that the SYFA letter added nothing to the pleadings, I shall reserve my opinion on the question whether such documents should be taken into account when assessing whether fair notice has been given.

Counsel for the defenders contended that Form 43.9 anticipated the spelling-out of the method of calculation: for example, by means of a multiplier, multiplicand, and discount (if any). However I consider that Form 43.9 is a template or pro forma upon which to base a party's Statement of Valuation of Claim: cf. Rule 1.4 of the Rules of the Court of Session:

"Where there is a reference to the use of a form in these Rules, that form in the appendix to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require."

There are obvious lacunae in the style Form 43.9: for example, there is no explicit mention of future necessary services in terms of section 8 of the Administration of Justice Act 1982; nor is there any explicit mention of past loss of capacity to render personal services in terms of section 9 of the 1982 Act. Equally however there are entries in the style Form 43.9 which may be inappropriate in a particular case. Personal injury practitioners simply adjust the Form to suit the particular case in hand. In the present case, where the child pursuer was not earning at the time of the accident, and where a loss of employability award is claimed (as outlined in paragraphs [2] and [3] above) I am of the opinion that Form 43.9 has been adequately completed.

Directions to the jury

In relation to directions to the jury, I am satisfied that in this particular case a judge would be able to give the jury adequate directions about the nature of a loss of employability award, and the broad, commonsense approach which should be adopted when estimating the value of such an award in the pursuer's circumstances.

Conclusion

I have not been persuaded that special cause has been shown such that this case should not go to a jury. I shall allow issues."