Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> O'Neill v Dowding & Mills Plc & Anor [2007] ScotCS CSOH_170 (19 October 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_170.html
Cite as: [2007] ScotCS CSOH_170, [2007] CSOH 170

[New search] [Help]

OUTER HOUSE, COURT OF SESSION

[2007] CSOH 170

PD426/07

OPINION OF LORD EMSLIE

in the cause

KEVIN O'NEILL

Pursuer;

against

DOWDING & MILLS plc

Defenders;

and

DAVID W SMITH LTD

Third Party:

________________

Pursuer: McNaughtan; Digby Brown,

Defenders: Watson, Solicitor Advocate; Simpson & Marwick, WS

Third Party: Bennett; HBM Sayers

19 October 2007

Introduction
[1] On 5 April 2004 the pursuer sustained serious injuries to his right lower leg when he fell through a gap in a walkway in the course of his employment with the defenders. His present action of damages against the defenders is founded on allegations of both common law fault and breach of statutory duty on their part. In response the defenders concede liability to the pursuer, while at the same time pleading what they term a "right of relief" against the third party whose employees are said to have created the gap in the walkway without warning anyone of its presence.

[2 ] As regards quantification of his loss, the pursuer's averments in condescendence 5 are inter alia to the following effect:

"... He continues to experience pain. He still limps. He has difficulty in negotiating stairs and rough ground. He has developed post traumatic osteoarthrosis of the right ankle joint. It is likely that he will require further surgery within two to four years. His ankle is likely to deteriorate. He may require to undergo a fusion operation. ... As a result of the accident the pursuer was unable to return to work until late December 2004. Following his return to work he continued to suffer from pain in his right ankle. He required to take time off work as a result of that pain. In September 2006 he was signed off work as a result of his ankle pain. He has not worked since that time. He has lost and continues to lose earnings. In light of the pursuer's poor prognosis, it is likely that he will continue to lose earnings in the future. The pursuer has suffered and will continue to suffer from a loss of pension rights. At the time of his accident the pursuer and the defenders contributed to an employers' pension scheme. The pursuer has received reduced pay from the defenders since September 2006. Employee and employer contributions to the pension scheme have continued since that date. However, the pursuer's pay has been fixed at the pre-accident level of £21,827 a year. His Final Pensionable Salary will be £21,827.58 a year. As a result of the pursuer's poor prognosis it is likely that he will require to leave his current employment. When he does so he will require to leave the defenders' pension scheme."

[3 ] The pursuer now moves for the allowance of issues. That motion is opposed by the defenders and third party, who maintain that special cause exists for withholding jury trial under section 9(2) of the Court of Session Act 1988. They take no point regarding any uncertainty as to the grounds on which liability is conceded by the defenders in favour of the pursuer, nor as to the nature of the right which the defenders assert against the third party. Instead they advance two interlinked arguments founded on (i) alleged lack of relevancy and/or specification of the pursuer's averments on the subject of his future employment and earnings potential; and (ii) the general complexity of loss calculations required on both future earnings loss and loss of pension rights.

The parties' submissions
[4] The position adopted by counsel for the pursuer was straightforward. Starting with pension loss, he maintained that its assessment would not be as complex as his opponents suggested, and to illustrate that he referred me to the 4-step calculation in Mr Pollock's report no.6/8 of process. A pension loss claim would not of itself be a bar to jury trial, and in this case there was no reason to think that a jury would be unable to follow the calculations required.

[5 ] More generally, Robertson v Smith 2000 S.L.T. 1012 was a case in which the Inner House had allowed a personal damages claim to go to jury trial notwithstanding the involvement of the Ogden Tables. Moreover, as in this case, the defenders had raised no special complexities in their own pleadings. Robertson should therefore be held indistinguishable for present purposes. Valuable guidance was also to be obtained from the decision of Lord McCluskey in Reid and Others v BP Oil Grangemouth Refinery Ltd (8 May 2001, unreported). That decision confirmed that the involvement of the Ogden Tables was not of itself sufficient to exclude trial by jury, and that with the assistance of evidence, speeches and charge a jury should have no real difficulty in handling multipliers and multiplicands. Criminal juries often had to follow and apply complex expert evidence, and the position on the civil side was no different.

[6 ] In answer to questions from the bench, counsel for the pursuer conceded that he "... could not really say" what was going to happen to the pursuer in the future, or what his plans might be. In that context, he referred me to Mr Briggs' orthopaedic report No.6/5 of process which, as at 5 May 2006, bore to confirm the significant state of uncertainty which existed in this area. According to counsel, the evaluation of such uncertainty would be a jury question, bearing in mind that some continuing wage loss was plainly in prospect. Furthermore, it was said, the future position was liable to have crystallised by the date of any jury trial, and would then involve either (i) continued employment with the defenders in some capacity, with or without promotion; or (ii) employment elsewhere; or (iii) a continuing state of uncertainty. A jury would not have to evaluate the pursuer's claim on more than one of these hypotheses, and beyond that it could not be said that the 6^th edition of the Ogden Tables introduced any new complexity beyond that which had been considered by the Extra Division in Robertson and by Lord McCluskey in Reid.

[7 ] In response, the defenders and third party began by maintaining that the pursuer's averments were "brief to the point of being terse". There was no indication as to where, or in what capacity, he might be employed in the future, or even as to whether he would ever be fit to return to work. Put shortly, the basis for his alleged continuing loss of earnings remained wholly unexplained. On the pleadings as they stood, which had to be the primary focus for the court in judging "special cause", there was an obvious risk of "myriad objections" if the pursuer sought to lead evidence along any particular line. It was not even possible to derive assistance from other documents in the case. For instance, the pursuer's orthopaedic report was now eighteen months old; that left open the question of whether fusion of the pursuer's ankle would be required; and it broadly confirmed the real uncertainty regarding the pursuer's future employment prospects. Interestingly, that report did not bear to have been relied on in the pursuer's own Valuation of Claim, which seemed to proceed on the footing (contrary to his averments) that he would never work again in any capacity. Strangely, the Valuation contained no allowance for future contingencies other than mortality. In all the circumstances, it was said, the defending parties were currently denied fair notice of the case against them as regards both future earnings loss and loss of pension rights, and there was no basis in the pursuer's averments for the leading of evidence on any particular hypothesis in due course.

[8 ] On the subject of complexity, the defenders and third party drew my attention to the 6^th edition of the Ogden Tables, and in particular to the extensive explanatory notes which (at para.31) bore to describe "one method" of allowing for future contingencies other than mortality. Although the complex adjustments which followed would require evidence as to inter alia educational attainments and the presence of absence of "disability" at the date of the accident, the pursuer's averments in this case made no mention of such matters. In addition, as regards any offset for the pursuer's future earnings or employment potential in his injured state, whether with the defenders or elsewhere, the pleadings were substantially silent. There was no offer to prove how long the pursuer might expect to be off work; whether he might undergo retraining, and if so over what period; what sort of work he might be fit for; or the level at which such work might be remunerated.

[9 ] Against that background, this was not a case in which calculations using the Ogden Tables would be straightforward. On the contrary, they were liable to involve complex mathematical processes, taking account of numerous variables on which there were currently no averments. The present case was thus readily distinguishable from Robertson, where an Extra Division had approved issues notwithstanding the involvement of (an earlier addition of) the Ogden Tables. Significantly, the court there made it clear, at paragraphs [4] and [9], that their decision was specifically limited to a situation in which the pursuer would never work again and in which the necessary future loss calculations would therefore be relatively uncomplicated.

[10 ] More closely in point, it was said, was my own decision refusing issues in Slessor v Vetco Gray UK Ltd and Others 2007 CSOH 59. There (as here) the pursuer's averments left the matter of future loss largely uncertain and unexplained; other documents in process presented different and inconsistent pictures; and a multiplicity of complex calculations would foreseeably be required under the latest (6^th) edition of the Ogden Tables. That edition, it was said, reflected "a sea change" in the authors' approach by comparison with earlier editions, and in particular (i) introduced new and different variables to be allowed for in future loss calculations, and (ii) envisaged multiple calculations, with split multipliers, to reflect promotion prospects or a change of job.

[11] On pension loss, Mr Pollock's report for the pursuer contained an over-simplified "4-step" calculation, which in truth involved a number of variables at each stage. Notwithstanding the pursuer's averments, Mr Pollock's calculations appeared to assume that the pursuer would never work again, and his penultimate paragraph left in the air the question whether any offset for residual working capacity would require further detailed calculation or merely "pragmatic adjustments". Of more interest, it was said, was the complexity of the different hypothetical calculations which appeared in the defenders' report from Mr Blyth no.7/1 of process. None of these hypothetical calculations could be described as straightforward, and none could be attempted without full access to the Ogden Tables and to the explanatory notes and definitions without which they could not be used. In the comparable case of Potts v McNulty 2000 S.C. 1269, Lord Wheatley had refused issues on the ground that the likely complexity of pension loss calculations, coupled with a lack of necessary specification in the pursuer's averments, constituted sufficient "special cause" for the purposes of section 9(2) of the 1988 Act.

[12 ] In all the circumstances, it was said, the paucity of information in the pursuer's pleadings, combined with the obvious complexity of the future loss calculations which were liable to be required, rendered the present case unsuitable for trial by jury.

Discussion
[13 ] Having taken time to consider the parties' competing submissions, I have reached the conclusion that this case is unsuitable for jury trial, 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 the defenders and third party 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 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 directly 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.

[14 ] In the present case, an initial difficulty for the pursuer is the general lack of averments sufficiently relevant and specific to give fair notice of the likely nature and extent of his future loss claims. His future employment potential remains substantially unexplained, and there is no means of telling what sort of evidence he will ultimately seek to lead. His recent Valuation of Claim appears to proceed, without foundation on Record, on the hypothesis that he will never work again, and moreover that calculation makes no allowance for contingencies other than mortality. Mr Pollock's pension loss report appears to proceed on a similar hypothesis, whereas the (somewhat dated) orthopaedic report from Mr Briggs tends to confirm the significant continuing uncertainties which arise in this area. In my opinion these uncertainties, and the consequent lack of notice to the defending parties in the pleadings, are of themselves powerful considerations favouring proof rather than jury trial. The pursuer does not even aver his educational attainments and disability status which would be essential to any assessment of contingencies under the 6^th edition of the Ogden Tables. 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 uncertainties and omissions 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.

[15 ] It is of course possible, as counsel for the pursuer pointed out, that by the date of any inquiry the position regarding the pursuer's future will have become clearer, and might even be the subject of amended pleadings in that area. In terms of chapter 43 of the Rules of Court, however, the present motion for issues must be heard and determined at this stage, and for that purpose the court can only proceed on an assessment of the pleadings as they currently stand, taken together with such further documents as may be commended to the court's consideration. In my judgment the hypothetical possibility of improvement in the future is insufficient to justify what would amount to a leap in the dark at the present time. For all I know, the situation may become even more difficult and uncertain by the date of any inquiry, and I do not consider that trial by jury can properly be allowed in the face of such obvious risks. The averments in support of the pursuer's claim for continuing future loss are, in short, of doubtful relevancy and insufficiently specific to entitle the pursuer to lead evidence along any particular line.

[16 ] As regards the likely complexity of the calculations which are liable to be required, I start by noticing that the pursuer's Valuation of Claim bears to proceed upon an application (however incomplete) of the Ogden Tables, and that the parties' respective pension loss reports do likewise. In addition, two out of the three possible scenarios outlined by counsel for the pursuer, and narrated in paragraph [6] above, would lend themselves to multiplier/multiplicand calculation bringing the Ogden Tables into play. Admittedly the third scenario, namely a continuing state of uncertainty, might not, but more importantly counsel suggested no fourth scenario whereby the pursuer would never be able to work again in any capacity. Against that background, it seems to me that the decision of the Extra Division in Robertson can readily be distinguished, since it expressly proceeded on the basis that, since the pursuer there would never work again, the necessary future loss calculations would be relatively straightforward. To my mind the emphasis which the court placed on these special circumstances is a striking feature of the case, and I suspect that if such special circumstances had not been present the outcome might well have been different.

[18 ] Although, as I have already acknowledged, the matter of "special cause" must be judged on the individual facts and circumstances of a given case, it seems to me that some parallels can be drawn between the present case and my recent refusal of issues in the case of Slessor. The most striking of these parallels is, of course, the significant continuing uncertainty which, on an assessment of the pleadings and of other available documents, affects the whole chapter of future loss. In the circumstances of this case also, I am satisfied that 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 contingencies, as yet unidentified, 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 might be factored in. Separate and different multipliers would in my view be required 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 services claim presented under section 9 of the Administration of Justice Act 1982. As regards future earnings loss in particular, the first two of these calculations would require consideration of split multipliers in terms of the Tables in order to reflect job changes, promotion (mentioned as a possibility by Mr Pollock), wage rises or other such developments. In addition, the task of adjusting for contingencies would not in my view be an easy one, bearing in mind inter alia the existence of contingencies for which the Ogden Tables contain no specific provision, and the recognition in the explanatory notes that only one possible method of adjusting for contingencies is put forward.

[19 ] Against that background, it seems to me that any jury may be expected to encounter severe difficulty in trying to assess the pursuer's future loss claims. Over and above that, I consider that the task of charging a jury in this case would present formidable difficulties for even the most experienced judge, and mutatis mutandis I regard the general remarks at paragraph [24] of my decision in Slessor as being of equal application here. In my view it would not be a responsible exercise of the court's powers to allow issues where such problems can readily be foreseen. Like Lord Kingarth in Easdon (referred to at paragraph [8] of my decision in Slessor), and Lord Wheatley in Potts, my conclusion is simply that, in the particular circumstances of the present case, the likely complications and complexities affecting the evaluation of future loss are sufficiently great to constitute "special cause" for withholding jury trial under section 9(2) of the Court of Session Act 1988.

[20 ] On re-reading my opinion in Slessor, I note that per incuriam I did not explicitly distinguish the case of Reid to which I was then referred. For the avoidance of doubt, however, my views on the decision at that time did not differ from the views set out in paragraph [17] of this present opinion. I am also inclined to think, on reflection, that certain observations which appear in paragraphs [17] and [18] of my decision in Slessor might have been more clearly expressed. In particular, the references there to "additional" and "commonplace" contingencies which the Ogden Tables do not cover were primarily intended to reflect essential qualifications which appear throughout the Tables themselves. Paragraphs 14, 15 and 17 of the introduction, for instance, and paragraphs 20, 29-32, 36, 42-3 and 90 of the explanatory notes, expressly acknowledge (i) that the tabulations and adjustments proposed clearly cannot cover all possible situations, and (ii) that in many cases there will be a need to cater for contingencies falling outwith the legitimate scope of the "average" approach under which "an initial adjustment" is proposed by reference to age, employment status, disability status and educational attainment alone. In my view these qualifications were significant in Slessor, and are significant here, because of the degree of uncertainty surrounding the issue of future employability in each case.

Disposal
[21 ] For all of these reasons, especially when they are viewed in combination, I shall refuse the pursuer's motion for issues, and allow parties a proof of their respective averments on the outstanding matters of (i) quantum and (ii) the responsibility (if any) of the third party.