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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 199
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PD1462/07
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OPINION OF LORD BRODIE
in the cause
FIONA SMITH
Pursuer;
against
(FIRST) MADELINE
HUGHES and (SECOND) HOME CONCERN (SCOTLAND)
LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Euan Mackenzie; Balfour + Manson,
LLP
Defenders: Neil Mackenzie; Simpson & Marwick
14 December
2007
[1] In
this action the pursuer sues for damages as reparation for personal injury she
sustained on 30 July 2004
in a road traffic accident. Liability is
admitted. What is in issue is
quantification of damages. The
provisions of Chapter 43 of the Rules of Court apply.
[2] The
pursuer has enrolled a motion in terms of Rule of Court 43.6(5) to allow issues
for jury trial. The defenders have opposed
the motion. Their reason for opposition
is stated as follows:
"Issues should
not be allowed. The pursuer's very brief
pleadings give no specification of basis for claims for (1) prospects of
further promotion; (2) necessary
services being provided to the pursuer's family; (3) additional expenditure; (4) past and future necessary services.
Any inquiry
should be by proof before answer since these claims are of doubtful relevance
and entirely lack any specification."
[3] Counsel
for the defenders intimated that he only intended to argue points (1) and
(4): the doubtful relevancy of the
averments relating to the calculation of future wage loss by reference to
prospects of future promotion and the claim in terms of section 8 of the
Administration of Justice (Scotland) Act 1982 for such necessary services as
have been and will be rendered to the pursuer by relatives in consequence of
the injuries she sustained in the accident.
Counsel drew my attention to the pursuer's averments in support of these
heads of damages. They were to be found
in paragraph 5 of the Statement of Claim.
They were as follows:
"She was unable
to return to her employment with the second defenders. Her employment was terminated. She is unemployed. She is permanently unable to return to her
former employment as a carer. At the
time of the accident she had recently been promoted to supervisor. But for the accident she had prospects of
further promotion. She intended working
to at least 65. She has received and
continues to receive services from her husband and daughters. ... The pursuer seeks damages for ... (3) future
wage loss. (4) past and future necessary services she has received....."
[4] In
developing his submission that the averments to which he had drawn my attention
were of doubtful relevancy, counsel for the defenders reminded me of the
authorities to the effect that a distinction was to be drawn between, on the
one hand, the specification required of the averments where inquiry was to be
by way of proof before answer and, on the other where inquiry was to be made by
way of jury trial: Boyle v Glasgow Corporation 1949
SC 254 at 261 to 262, Higgins v DHL International (UK) Ltd 2003 SLT 1301
at 1304E to H and 1305E, and O'Malley
v Multiplex (UK) Inc 1997 SLT 362 at 363F
to K. This line of authority was,
counsel submitted, clear. However, he
anticipated that a question may arise as to whether the pursuer's Statement of
Valuation of Claim made in terms of Rule of Court 43.9(1) can be had regard to
in determining whether the pursuer has given sufficient specification of her
claim. The point had been reserved by
Lady Paton in L's Guardian v Fife Council 2006 SLT 811 at 814K, Lady
Paton having been referred in that case to Lord Kingarth's unreported
decision in Easdon v A Clarke & Co (Smithwick) Ltd, 25 January 2006. Counsel accepted that the Statement of
Valuation of Claim might be looked at to fill in gaps but it was not a
substitute for pleadings. In the present
case, looking at the Statement of Valuation of Claim might provide some sort of
basis for fleshing out the services claim but how past experience related to
the future was anyone's guess. Reference
to the Statement of Valuation of Claim provided absolutely no assistance in
relation to the claim for future wage loss under reference to prospects of
promotion. In the Statement of Valuation
of Claim there was included a calculation of future wage loss by reference to
the pursuer's wage at the date of termination of her employment. Following that calculation there was the
sentence: "NB this calculation takes no account of wage increases the pursuer
would have received or her prospects of promotion." Rather than providing further specification
of a claim based on prospects of further promotion, if anything, this sentence
suggested that no such claim was being made.
[5] Counsel
for the pursuer confirmed that his motion was the allowance of issues. He began by advancing a number of general
propositions. A party has a statutory
right to a jury trial unless "special cause" exists in not allowing
issues: Court of Session Act 1988,
sections 9(b) and 11(a). In choosing
proof or jury trial the question is essentially one of discretion, the object
being to select between the alternative methods of inquiry which type of tribunal
would best secure justice between the parties:
Graham v Associated Electrical Industries Ltd 1968 SLT 81 at 82. The cause must be special to the particular
cause and not a general cause: Taylor v Dumbarton Tramways Co Ltd 1918 SC (HL)
96 at 108. Special cause means some real
ground of substance making the cause unsuitable for jury trial. It must not be a mere hypothetical difficulty
conjured up by the ingenuity of counsel.
That a legal question may arise is not generally a sufficient ground for
refusing issues: Gardner v Hastie 1928 SLT 497 at 499. Turning to the present case counsel noted
that liability was admitted. There was
therefore no difficulty in relation to the merits. The objection advanced on behalf of the
defenders related to a failure to give fair notice in relation to
quantification of damages. The response
by counsel for the pursuer was to submit that the pleadings in the present case
complied with the relevant rules. In
considering questions of specification the court was entitled to take into
consideration the Statement of Valuation of Claim. Moreover, in relation to compliance with the
rules, Chapter 43 envisages simplified pleadings. As far as quantification of damages was
concerned, the relevant rules and form of summons envisaged no more than heads
of damages being averred in the pleadings and the specification of these heads
being given in the Statement of Valuation of Claim and supporting documents: Rule of Court 43.2(1), Form 43.2-A, Rule of
Court 43.9, and Form 43.9. Practice Note
No 2 of 2003 referred to the Report of the Working Party chaired by Lord
Coulsfield which was issued in 1998 and to the Supplementary Report issued in
2002. The Practice Note included the
following quotation from the Supplementary Report:
"Essentially,
therefore, we agree that what is necessary is a method of pleading which
encouraged brevity and simplicity and discourages technicality and
artificiality."
If a question arose as to whether a
pursuer had provided sufficient specification of the heads of damages claimed
the court was entitled to have regard to the Statement of Valuation of
Claim: Easdon v Clarke & Co
(Smithwick) Ltd, 25 January 2006, Lord Kingarth, paragraphs [10] to [17], Strang v Churchill Insurance Co Ltd, 15 November 2006,
Lord Kinclaven, paragraphs [123] to [142], and Baird v Cowie,
27 October 2006, Lord Carloway, paragraphs [24] to [26]/
[6] I
am not prepared to allow issues on the present pleadings but for the moment at
least I do not intend to refuse the pursuer's motion for the allowance of
issues or to grant the defender's motion for proof before answer. It appears to me that what I see as a
deficiency in the pursuer's pleadings can readily be cured by amendment and, as
requested by counsel for the pursuer and consented to by counsel for the
defender, I propose to have the case brought by order after parties have had
the opportunity of seeing this Opinion.
[7] Having
regard to the Outer House decisions to which I was referred, I am persuaded
that it is appropriate to have regard to the Statement of Valuation of Claim in
determining whether the pursuer has given sufficient specification in relation
to the heads of damages that he seeks.
Counsel for the defender did not suggest otherwise.
[8] As
far as the averment "but for the accident she had prospects of further
promotion", I have no difficulty. I do
not consider this to be an averment of doubtful relevancy. I consider it to be an irrelevant
averment. As counsel for the pursuer
frankly accepted, the averment says nothing about what sort of prospects the
pursuer may have had. There may have
been poor or indifferent for all that appears in the pleadings. No assistance is to be got from the Statement
of Valuation of Claim which states that the quite precise calculation of future
wage loss does not take into account the "wage increases the pursuer would have
received" or her "prospects of promotion".
Counsel for the pursuer was again entirely frank in explaining that he
was not in a position to improve on the averment. He did not suggest that he was in a position
to lead evidence to the effect that it was likely that the pursuer would be
promoted. Accordingly, I would not be
prepared to allow the averment to go forward to probation. Counsel for the pursuer indicated that if
that was my view, he would simply delete it.
[9] I
found the question as to whether the pursuer has relevantly pled her claim in
respect of future services to be rendered by relatives to be more
difficult. Looking to the pleadings it is
not so much a question as to whether the pursuer's averments are sufficiently
specific as to whether she has any averments whatsoever in support of a claim
which she states in terms that she is making.
Counsel for the pursuer made clear that the absence of further averment
in statement 5 was entirely intentional.
It was his submission that the form of summons to be used in a Chapter
43 procedure required nothing more in the Statement of Claim than a list of
heads of damages. That was what he had
provided. That interpretation of the
Rules was fully supported by what had been said by Lord Carloway in Baird v Cowie.
[10] In Baird Lord
Carloway provides a careful exposition of what chapter 43 requires of a
pursuer by way of notice of the injury and damage in respect of which he makes
a claim. The effect of Rule 43.2(1),
taken with Form 43.2-A, Lord Carloway explains at paragraphs [19] and [20]
of his opinion is that in relation to injury and damage a pursuer's pleadings
will meet the requirements for formal relevancy if the pursuer's personal
injuries are adequately described and the heads of damage (described as "heads
of claim") are listed in the penultimate paragraph of the statement of
claim. At paragraph [24] Lord Carloway
continues:
"Whereas the conventional
rules of pleading require a pursuer to make appropriate averments in his
summons giving [detail of the averred heads of claim], the new rules do
not. Instead, the route which the Court
has chosen to follow is to oblige a pursuer to states heads of claim but to
value them in the manner provided for in [Form 43.9, ie the Form of Statement
of Valuation of Claim provided for in Rule 43.9]. The general need to provide fair notice still
remains, but the rules after the procedure to be followed to provide that
notice."
[11] Lord Carloway provides a summary of the requirements imposed by
the Rules of Court which is clear and accurate.
I immediately accept that to require more from a pursuer in a personal
injury claim can be seen as a move back towards the over-elaboration of
pleadings which was criticised by the Coulsfield Working Group and which gets
no encouragement from Practice Note 2 of 2003.
However, as Lord Carloway points out, there remains a need to give
fair notice and in my view there is a place for concise averment to supply that
notice, in relation to damages as well as in relation to the merits of the
claim. That might be said to be
particularly so in a case which the pursuer wishes to be determined by way of
jury trial. As Lady Paton observed
in Higgins v DHL International (UK) Ltd supra at 1304F, the views of
Lord Justice Clerk Thomson in Boyle v Glasgow Corporation still have
considerable force, notwithstanding the charges effected by
chapter 43. The pleadings should be
in such a form as clearly to convey what the case is about to their two direct
audiences, the other party and the judge:
Higgins supra at 1305E. When it
comes to questions purely of quantification then the pleadings may be
supplemented by what appears in the Statement of Valuation of Claim but it
would seem appropriate and, in a jury trial, convenient to be able to ascertain
from a party's pleadings what it is that party seeks and the factual basis upon
which he seeks it. Entitlement to
particular heads of damages may be among the important issues in a case and where
that is so I would expect something by way of averment in support of such
entitlement. If weight is to be attached
to the precise wording of Form 43.2-A, I would draw attention to what appears
at paragraph 5 of the Statement of Claim: "State briefly the personal injuries
suffered". I would take "personal
injuries" to comprehend not only physical injuries but their consequences
insofar as disabling or otherwise injurious and what directly flows from that
which bears on quantification of damage.
[12] However, even if I am wrong in my general observations in this
particular case I consider that the material relied on by the pursuer, her
averments taken with the Statement of Valuation of Claim, is inadequate if she
wishes issues to be allowed in respect of a claim that includes a requirement
for future services in terms of section 8 of the Administration of Justice
(Scotland) Act 1982. The valuation of future
services in this case is put at the sum of ฃ94,900. The matter is not therefore
inconsequential. It appears from the
Statement of Valuation of Claim that this head is based on a requirement for
two hours of services per day for the rest of the pursuer's life. It is not said what the future services will
be or why they will be necessary. It may
be that they will be the same services that the pursuer's husband and daughters
have provided in the past: changing
dressings, applying creams, bathing, toileting, dressing. However, that is not said and the number of
hours of necessary services claimed for the future is two per day rather than
the three claimed in respect of the past.
That suggests that there is some distinction to be drawn as between past
and future but what the distinction may be is nowhere disclosed.
[13] I do not suggest for a moment that the matter of future
services is one of great difficulty. I
would anticipate that counsel for the pursuer will be able to set out precisely
why it is that this head is claimed in a sentence or two of averment. I propose to give him the opportunity to do
so but until he does so as well as deleting the reference to prospects of
promotion I am not prepared to allow issues.
