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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 130
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OPINION OF LORD EMSLIE
in the cause
GAVIN SLESSOR
Pursuer;
against
VETCO GRAY UK
LIMITED AND OTHERS
Defenders and
Third Party:
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Pursuer:
Smith, Q.C., R Milligan; Anderson Strathern
Defenders and Third Party: Dewar, Q.C., Gardiner; Simpson & Marwick; HBM Sayers
13 July 2007
Introduction
[1] The
present action of damages arises out of an accident on 13 May 2003 in which a heavy control module
fell from a crane and struck the pursuer.
This resulted in traumatic amputation of his right leg and forearm,
followed by a range of continuing disabilities and losses. On 23 March 2007, on a motion for
summary decree, the court found the defenders (as employers) liable to make
reparation to the pursuer, and at the same time reserved for further inquiry
the issues of (i) contributory negligence, (ii) quantum and (iii) the defenders' claim against the third party by
whom the control module and an associated lifting adaptor were supplied. Reservation of the last mentioned issue was,
however, in error because the defenders and third party had by then reached
agreement as to the consequences inter se
of any finding of liability against the defenders.
[2] A
debate has now taken place before me on the motion roll, with the pursuer
asking for the allowance of issues and the defenders and third party
maintaining that what remains of the case is unsuitable for jury trial. Over and above the matter of contributory
negligence, the competing submissions concern the complexity or otherwise of
the pursuer's claims in respect of inter
alia future loss and accommodation costs, and in particular the complexity
of the calculations necessary for their determination.
Submissions for the defenders and third party
[3] Senior counsel submitted that
special cause existed for withholding the case from jury trial. On the issue of contributory negligence, to
begin with, the lifting operation was complex, with both the defenders and
third party involved, and identifying the precise role and responsibility of
the pursuer in such circumstances would not be an easy task. Moreover, the precise mechanism by which the
control module came to fall was neither plainly averred by the pursuer nor
admitted by the defenders or the third party on Record. There was thus real uncertainty as to the facts
on which summary decree was pronounced against the defenders on 23 March 2007, and hence as to
the basis on which liability might now be apportioned in a question with the
pursuer.
[4] As
regards the quantification of the pursuer's claim, attention was drawn to two
main areas which were said to involve too many levels of complexity for the
case to be suitable for determination by a jury. One of these areas was the pursuer's claim
for future loss, and the other his claim in respect of the cost of obtaining
specially adapted accommodation. As to
the former, the pursuer's averments confirmed a state of considerable
uncertainty as to the pursuer's residual working capacity following the
accident, and by reference to the new 6th edition of the Ogden
Tables it was clear that the necessary calculations would tax the abilities of
a trained and experienced judge, far less those of the members of a jury. The averments in question were in the
following terms:
"The pursuer has
suffered and continues to suffer a loss of earnings. He was off work until January 2005. He now works part-time in the Quality
Assurance Department at a lower rate of pay.
He will never be fit to work as a Mechanical Fitter again. The pursuer has great difficulty in carrying
out his current duties. It is likely
that he will have to seek alternative employment. But for the accident the pursuer would have
worked to normal retirement age. ... The pursuer is at a substantial disadvantage
on the labour market. Even with a prosthesis,
the pursuer has very little function in his right arm."
[5] Calculation
of the pursuer's lifetime earnings potential if the accident had not occurred
would of itself be a difficult task, involving the application of multipliers
and of adjustments to reflect contingencies of life other than mortality. One possible approach to the making of such
adjustments was discussed and provided for within the Tables (at
paragraph 31 ff. of the explanatory notes), but other possible approaches
were not. An off-set calculation would
also be required to reflect the pursuer's future earning capacity in his
injured state, and here the averred uncertainty would render the calculation
more complex still. In addition, as
paragraphs 22-24 of the explanatory notes made clear, job changes, wage rises,
promotions and other anticipated developments would require identification of
different periods in the future to which separate multipliers and adjustments
must be applied. All in all, when taken
along with the pursuer's claim for pension loss, there was a constellation of
difficulties which rendered trial by jury unsuitable and inappropriate in this
case. Deletion of the sixth sentence of
the passage quoted above, as proposed by the pursuer, would make matters even
more uncertain and confusing.
[6] Over and above that, according to senior
counsel, an unusual and complex calculation would be required for the claimed
cost of specially adapted accommodation.
The averments here were as follows:
"The pursuer has
incurred costs of г2,000 in converting his bathroom. He will require to move to single level
accommodation with appropriate alterations.
The pursuer has bought a new house for г263,000 that has been adapted
for his needs. He is selling his current
accommodation for about г100,000."
In England,
the Court of Appeal in Roberts v Johnstone 1989 Q.B. 878 had devised a
calculation whereby the net capital cost of acquiring appropriate accommodation
had to be annualised before application of a multiplier. Unless the choice of property was extravagant
and unreasonable, any betterment to the pursuer fell to be ignored. By contrast, any betterment from adaptation
works would require to be deducted from their cost. Such calculations were again complex and
difficult, involving multiple steps, and it would be unreasonable to entrust
such matters to an untrained and inexperienced jury.
[7] Senior
counsel also drew attention to certain productions which suggested that much of
the pursuer's continuing trouble was due to his own feelings of anger at the
extent of his disability, and to the imagined insensitivity of the defenders
subsequent to the accident. As in Graham v David A Hall Ltd 1996 SLT 596, this issue of causation would
complicate the pursuer's claims for solatium
and patrimonial loss, and it was undesirable to have such issues determined by
anyone other than a judge.
[8] In
the whole circumstances, it was submitted, the obvious complexities inherent in
this case militated strongly in favour of a proof before answer. In Easdon
v A Clarke & Co (Smithwick) Ltd,
Lord Kingarth had withheld the case from jury trial by reason of cumulative
complexities affecting quantification of the pursuer's claim. While acknowledging that all cases must turn
on their own individual features, senior counsel maintained that Lord
Kingarth's case was less complex than the present. He also invited me to follow Lord Kingarth's
lead in attaching weight to the difficulty which a trial judge would face in
seeking to charge a jury, bearing in mind that claims for serious physical and
psychological injuries often contained elements which would be "... notoriously
difficult even for a judge properly to assess".
Submissions for the pursuer
[9] In a robust reply, senior
counsel for the pursuer insisted on what he called his client's statutory right
to a jury trial. This was not a case in
which special cause for withholding trial by jury had been made out, and the
defenders' submissions were illegitimately based on theoretical possibilities
rather than on points of any real substance.
Ingenious though they might be, such arguments could not be allowed to
deprive the pursuer of his statutory right.
[10] On the matter of contributory negligence, this was now the
defenders' problem since the onus of
averment and proof lay upon them. If (as
appeared to be the case) the precise reason why the control module fell was not
specified on Record, that was of no concern to the pursuer who already held a
summary decree against the defenders.
Indeed, the logical consequence of any lack of specification in this
area should be a refusal to remit the defenders' case of contributory
negligence to probation.
[11] As regards loss of earnings, the issues were in fact simplified
by the 6th edition of the Ogden Tables. Recent research had shown that the only
worthwhile factors for adjustment were employment status, educational
attainment and the presence or absence of disability. The Tables contained clear guidance as to how
such factors should be applied, and there was no additional complexity in a
case like this. Many cases involving the
application of multipliers had been successfully tried by jury, and the ability
of a jury to deal with such matters had been eloquently acknowledged by Lord
McCluskey in Reid v BP Oil Grangemouth Refinery Ltd
(8 May 2001, unreported).
[12] More fundamentally, perhaps, the defenders' criticisms were
founded on a misconception as to the role of pleadings in a personal damages
action under Chapter 43 of the Rules of Court. As Lord Carloway correctly observed in Baird v Cowie 2006 CSOH 168, the whole point of the exercise had been to do
away with detailed pleadings in such cases.
Failing transfer to the ordinary roll, the briefest of outline pleadings
were to be expected, and Chapter 43 envisaged that specification might
additionally be provided by way of inter
alia productions, witness lists, statements of valuation and pre-trial
meetings. The defenders therefore had no
right to found on apparent uncertainties in the pursuer's pleadings, but for
the avoidance of doubt the pursuer now wished to delete by amendment the sentence
"... It is likely that he will have to seek alternative employment". The claim for future loss could now be
simply valued, as in the pursuer's valuation statement, and there was nothing
in the calculations which a jury could not readily master.
[13] The same applied to the pursuer's accommodation claim. The approach identified in Roberts (which had incidentally been
followed in Scotland)
was quite straightforward, and with appropriate evidence, submissions and
charge there was no reason to believe that a jury would find it unduly
difficult or complex.
[14] Finally, as regards the pursuer's alleged problem with anger,
the defenders' argument ignored the decision of the House of Lords in Simmons v British Steel plc 2004 SC HL 94.
There, the pursuer had been held entitled to damages in full where his
accident caused or materially contributed to the anger itself. So long as that contribution was not de minimis, only a novus actus interveniens could break the chain of causation. In any event, unlike the situation in Graham, the defenders here were not
alleged to have done anything since the accident to bring on the pursuer's
psychological state. Once more, the
defenders' point was without substance.
[15] For all of these reasons, senior counsel for the pursuer
invited me to grant his motion for the allowance of issues in this case.
Discussion
[16] Having taken time to
consider the parties' competing submissions, I have reached the conclusion that
this case is unsuitable for trial by jury, and that special cause for
withholding issues has been made out for the purposes of section 9(2) of
the Court of Session Act 1988. Clearly
the fact that the Ogden Tables will require to be applied is not, of itself, a
sufficient reason for denying trial by jury.
Indeed counsel for the defenders made no such suggestion. On the other hand, looking at matters on a
practical commonsense basis, it seems to me that even a personal damages action
may involve such a degree of complexity that only a proof before answer in front
of an experienced judge would be appropriate.
At a proof the judge would have the benefit of full submissions on both
legal and factual issues, including the proper application of different parts
of the Tables and the treatment of matters which these Tables do not
address. A judge would also be in a
position to derive the fullest assistance from the explanatory notes in the
Tables themselves, and would have the facility of taking time to consider all
issues carefully before pronouncing a reasoned, and thus reviewable,
decision. Trial by jury would, I think,
have none of these advantages.
[17] Without going into unnecessary detail, I am satisfied that in
the particular circumstances of this case application of the Ogden Tables would
be a source of real difficulty in the context of a jury trial. Over and above the fact that complex
actuarial evidence might be difficult for a jury to follow, I am struck by the
multiplicity of calculations which would need to be attempted, the difficulty
of identifying appropriate multipliers, and above all the difficulty of dealing
with the many variable and uncertain contingencies for which allowance would have
to be made. Whatever evidence might be
led on such matters, the necessary assessments would remain within the province
of the jury and all decisions would be theirs to take. While "one approach" to the task of adjusting
for certain contingencies finds expression within the Tables themselves, other
possible approaches are not discussed, and the Tables are silent as to the
basis on which additional contingencies (such as for example redundancy,
dismissal or cessation of an employer's business, or alternatively an
employee's supervening injury or illness) might be factored in. The trial judge would in my view have to be
very careful, in such circumstances, not to usurp the jury's function by
removing any part of their legitimate discretion on the facts, and this in turn
could easily result in the jury falling into error through the absence of
necessary guidance. Senior counsel for
the pursuer suggested that a jury might be given copies of the Tables
themselves, but even he recoiled at the possibility of a jury being let loose
on the explanatory notes which the authors of the Tables clearly regarded as
essential reading.
[18] In this case, separate and different multipliers would in my
view need to be considered in order to calculate (i) the pursuer's likely
earnings potential if the accident had not occurred, (ii) the necessary offset
for residual post-accident earning capacity, (iii) the claim for pension loss,
and (iv) the range of other claims advanced on a lifetime basis or for shorter
periods. As regards future earnings in
particular, the first two calculations would require consideration of split
multipliers in terms of the Tables, for instance where job changes, promotions,
wage rises or other such developments were in contemplation. Over and above that, contrary to the
submission by senior counsel for the pursuer, I do not consider that the task
of adjusting for contingencies would be an easy one, bearing in mind inter alia the existence of commonplace contingencies
for which the Ogden Tables do not provide.
[19] Another factor here is the confused and confusing picture
presented by the pursuer's pleadings. Notwithstanding
the amendment deleting express reference to the likelihood of the pursuer
having to seek alternative employment, it seems to me that the remaining
averments still reflect a state of real uncertainty as to the pursuer's future
working potential. To allow issues in
such circumstances would in my view be an unwise and inappropriate step for the
court to take. Attempts to resolve such
uncertainty in the course of a trial could very well lead to objections and
adjournments, and the undesirability of such a situation has often been
judicially noted.
[20] In addition, with great respect to the Lord Ordinary in Baird, I do not share his perception of
the procedure under Chapter 43 of the Rules of Court. It may be that simplified pleadings are now
permitted under the rules, but in my view this does not mean that the court's power
to withhold jury trial on inadequate and uncertain averments has been taken
away. On the contrary, with the
interests of justice in mind, it seems to me that the court must be especially
vigilant, in proceedings under Chapter 43, to ensure that issues are not per incuriam allowed in foreseeably
unsuitable cases. Moreover, I cannot
believe that the framers of Chapter 43 thought it appropriate for
defenders to have to guddle about in other documents to ascertain the likely
nature of the case against them. Expert
reports, for example, may be inconsistent with one another, or incompatible
with a party's averments, thereby creating an obvious risk of confusion,
misunderstanding and prejudice. The
basis on which statements of valuation proceed may similarly be unclear, and
contentions at a pre-trial meeting may invite more questions than they
answer. In any event productions need
only be lodged, and such a meeting held, a short time prior to a proof or
trial. Can it ever have been intended
that parties should remain in the dark as to the case against them until that
late stage, or that the court should until then be disabled from ruling on an
opposed motion for issues (which I think would be the logical consequence of the
Lord Ordinary's approach)? In my
judgment it is still
primarily to the parties' pleadings that the court must look in order to gain
some idea of the nature and extent of the disputed issues, and also in order to
judge the suitability of a case for trial by jury. No doubt advantage may be taken of other documents
if they are available, and if their content is clear and consistent, but for
the reasons already given I suspect that it will rarely be safe for the court
to proceed in this way.
[21] In the
circumstances of this case, for example, uncertainty regarding the pursuer's
working capacity in his injured state is to my mind a major concern. As already discussed, the pursuer's averments
appear to me to confirm that uncertainty, and I do not think that the position
is much improved by the brief amendment which I allowed senior counsel to make at the
Bar. The remaining averments are still
to the effect that the pursuer has great difficulty in carrying out his current
duties, that he is at a substantial disadvantage on the labour market, and that
even with a prosthesis he has very little function in his right arm. If, in line with the approach of the Lord
Ordinary in Baird, I were to seek
clarification from the productions already lodged, I would find an even more
confused picture. A care-needs report
(production 6/1, dated January 2005) expresses uncertainty as to whether any
return to work with the defenders, even in a different capacity, was
feasible. A psychiatric report (production
6/5, dated July 2005), refers to the emergence of the pursuer's anger since the
date of the accident, and quotes the pursuer as saying that he did not think he
could now go near the shop floor. On the
other hand a prosthesis report (production 6/2, dated March 2005) discloses the
pursuer's wish for assistance to permit greater activity, and in particular a
return to pre-accident sports such as running, jogging, swimming, skiing,
cycling and climbing. Further complication
is introduced by an employment report (production 6/6, dated April 2006) which
opens up the question of the pursuer's fitness for retraining in other fields,
setting out multiple tabulated figures and permutations referable to employment
as an engineer, draughtsman, administrator and care worker. Details are also included in respect of
employment at managerial level, perhaps on the basis (recorded at paragraphs 20
and 22) that promotion within the defenders' organisation would, in the
pursuer's view at least, have been achievable, and that earnings must therefore
not be frozen at the pursuer's pre-accident level. Quantum
valeat these documents seem to me to confirm the very real difficulty which
the court will encounter in trying to assess the pursuer's likely future
earnings loss in consequence of the accident.
I am conscious, however, that all of these documents are now of some
antiquity, that their terms are likely to require revision and updating, and
that there is as yet no orthopaedic or other medical assessment in process
regarding the pursuer's likely fitness to undertake different types of work in
the future. Against that background, I
do not find the pursuer's statement of valuation to be of much assistance. It does not obviously reflect the content of
any of the productions to which I have referred; the source of the figures used remains
unclear; the detailed approach to
multipliers and adjustments in the 6th edition of the Ogden Tables
does not appear to have been followed;
and two out of four headings in the section on future wage loss have
been left blank. Consideration of other
documents in this case
thus renders the picture no less confused and confusing than a
consideration of the pleadings alone.
[22] Moving
on, it seems to me that the calculation of the pursuer's future loss claims is
not the only source of complexity and difficulty rendering a jury trial
unsuitable. Assuming that I can properly
look at them, two of the pursuer's existing productions disclose that his
working capacity, especially in the defenders' employment, may be significantly
threatened by feelings of anger which have developed since the date of the
accident. This is a matter which would affect,
not just solatium, but also several
aspects of his claim for patrimonial loss, and in my view causation may prove
to be a delicate issue for resolution in due course. As regards the cost of accommodation I do not
think that, by itself, the necessary calculation could be regarded as so
complex or difficult as to justify the withholding of issues, but in a case
where a jury would already face multiple assessments of significant complexity
I do not think that the burden of this additional calculation can be dismissed
as negligible.
[23] Over
and above that, it seems to me that a real difficulty arises from the uncertain
factual basis on which the pursuer obtained summary decree against the
defenders in March of this year. No
doubt the onus of proving fault on
the part of the pursuer rests with the defenders, but in order to assess the
apportionment of liability as between these parties (looking to both
blameworthiness and causative potency) it is surely necessary to know the
precise basis on which the summary decree proceeded. This matter is further complicated by the
fact that in pursuance of his motion for issues in December 2006, senior
counsel by amendment deleted all allegations that the defenders were in breach
of duty towards the pursuer at common law, and also all allegations that they
were in breach of Regulations 4(1) and 12 of the Provision and Use of Work
Equipment Regulations 1998 and Regulations 4 and 8(1) of the Lifting Operations
and Lifting Equipment Regulations 1998.
These deleted regulations concerned, respectively, the suitability of
construction and adaptation of work equipment;
risks to health and safety from the fall, rupture and disintegration of
work equipment; the strength and
stability of lifting equipment; and the
planning, supervision and conduct of lifting operations. Had the pursuer not departed from all these
other alleged grounds of liability, in apparent pursuit of a procedural
imperative, he might have been in a position to seek summary decree against the
defenders on a much less narrow and uncertain basis. By that stage, however, his sole remaining
case concerned the appropriateness of the circumstances in which an item of
work equipment was used, and it is in that context that I regard the absence of
clear factual averments as presenting a real problem. That problem cannot in my view be resolved, ex post facto, by means of such evidence
as may be adduced by the defenders in support of their case of contributory
negligence against the pursuer. On the
contrary, it seems to me that careful legal analysis of the summary decree, and
of the pleadings on which it bore to proceed, will be essential. In my judgment, that exercise could not
sensibly be entrusted to a jury, and I cannot imagine how it could be made the
subject of appropriate directions by a trial judge.
[24] This
brings me on to a further point of general application. In a situation like this, it is obviously
necessary for the court to consider, on a broad pragmatic basis, how far a jury
might reasonably be expected to cope with the complexities of a given case
after receiving proper and adequate directions from the trial judge. Over and above that, however, it is in my
view necessary to consider how far the circumstances of a given case truly lend
themselves to the constraints of jury trial, and in particular how easy or
difficult it would be for the trial judge to frame appropriate directions and
convey them to the members of the jury within a reasonable timescale. The more complex the issues, the more
difficult it may be for the trial judge to react, at short notice, to what emerges
in the course of parties' speeches, and the more difficult it may be for him or
her to assess the level of detail to which necessary explanations should be
taken. Any error in this regard could be
damaging or fatal to the outcome of the trial.
Excessive prescription would run the risk of usurping the jury's proper
function as masters of the facts, and at the other end of the spectrum
inadequate assistance could leave the jury confused and unsure as to how to go
about their task. It is my judgment that
the task of charging a jury in this case would present formidable difficulties
for even the most experienced judge, and I do not think that it would be a
responsible exercise of the court's powers to allow issues where such problems
can readily be foreseen.
Disposal
[25] For all of these reasons,
especially when they are viewed in combination, I am in no doubt that special
cause exists for withholding this case from jury trial. The pursuer's motion is therefore refused,
and I shall allow parties a proof before answer of their respective averments
on the outstanding issues of (i) contributory
negligence and (ii) quantum.
