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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 01
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OPINION OF LORD EMSLIE
in the cause
MARC WILLIAM
MACDONALD
Pursuer;
against
CHRISTOPHER ROBERT
MALLAN
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: McDonald, solicitor advocate;
Balfour + Manson LLP
Defender: Laing; Simpson & Marwick
4 January 2008
Introduction
[1] This
action arises out of a road accident in Caithness on 17 April 2004 in which the pursuer sustained serious multiple
injuries. He now seeks damages from the
defender who was driving the car which came into collision with his motor
scooter. For present purposes, the
defender accepts that the accident was caused by fault on his part, but the
parties are in dispute on the quantification of the pursuer's claim. A two-day debate has now taken place before
me on the motion roll, with the pursuer asking for the allowance of issues and
the defender maintaining that the case is unsuitable for jury trial. In essence, the competing submissions concern
the complexity or otherwise of the pursuer's claims in respect of future loss,
and of the calculations necessary for their determination.
[2] In the
course of the initial discussion on 26 June
2007,
much attention was directed to the pursuer's averments in condescendence 5
regarding the effect of the accident on his future employment prospects. These averments were in the following terms:-
"Prior to the accident the
pursuer had a lifelong ambition to become a joiner. He had been looking for a joinery
apprenticeship since leaving school. He
had won prizes for joinery at school. He
was unable to find an apprenticeship and worked at Caithness Glass Factory and
in a hotel. In February 2004 he had
obtained an adult apprenticeship with M. M. Miller (Wick) Limited and was
making good process in that role. The
adult apprenticeship was for two years.
Rates have increased in the second year.
He was well thought of by his employers.
It is likely that he would have successfully completed his
apprenticeship and that he would have remained with them as a time served
joiner becoming a Team Leader
thereafter. He had a substantial
prospect of progressing beyond Team Leader to the role of Site Agent with his
employers. He greatly enjoyed his
job and was looking forward to his career.
He has not been able to resume his apprenticeship or return to his
pre-accident employment. It is unlikely that he will be able to
complete his apprenticeship. His
prospects of obtaining full-time employment are poor. Caithness Glass Factory has closed. He attended Wick College for a time where he tried
to complete the European computer driving licence course. Due to the effect of his injuries he found
himself unable to concentrate at the computer and had to give up this course."
The pursuer's condescendence then
went on, at some length, to set out the extent of the pursuer's injuries and his
various claims for solatium, loss of
earnings, services and outlays.
[3] By
way of response, the defender in answer 5 averred inter alia as follows:-
"The pursuer's
verbal skills are consistent with his pre-morbid ability. The pursuer has been able to adopt and
experience success in management strategies to address his difficulties with
his memory. In addition the pursuer is
able to spontaneously recall detailed information. With additional application and expectation
the pursuer has the potential to further improve his memory. Cognitively, the pursuer is able to undertake
more sedentary aspects of joinery/craft type work. . . . Further explained and
averred that the pursuer's current prosthetic foot (as at April 2007) which was
prescribed by the NHS is adequate to meet his current requirements. His current prosthetic socket (as at April
2007) is similar to that fitted to high-activity amputees. His activity level is directly proportional
to his ability to achieve comfortable walking.
He has been able to use a static indoor training bicycle. In the event of the pursuer returning to
work, a more active prosthetic foot would be provided by his local NHS
facility. His employer at the time of
the accident has had a leg amputation himself.
After the accident, his employer was sympathetic to the pursuer's situation. The pursuer's job was kept open for him. The pursuer is called upon to aver whether
this remains the position and, if so, whether he intends to resume his
employment if he is, or becomes, physically able to. Following upon the accident, the pursuer
commenced a course in computing at Wick
College. The pursuer is called upon to aver the nature
of these studies and of any prospects for employment they may afford him. The pursuer is likely to be able to return to
employment in the future."
[4] When
the debate resumed on 18 December
2007, however, the pursuer tendered a minute of amendment which was
said to reflect a recent reappraisal of his claim for future loss of
earnings. Apart from substantially increasing
the sums sued for, this minute sought to delete the two passages which I have
italicised in paragraph [2] of this opinion, and in their place to substitute
the following:
"It is likely
that by July 2006 the Pursuer would have become a time served joiner with his
employers, that by then he would have been promoted to Work Shop
Supervisor/Team Leader and that he would have had a secure job in that role for
the future."
... and ....
"The Pursuer
will not be able to complete his apprenticeship. By reason of his injuries the Pursuer is not
and will never be capable of full-time employment or fully independent
living. In addition to his physical
injuries his brain injury has caused a continuing and significant impairment in
a range of cognitive and behavioural functioning particularly in relation to
attention, memory and irritability and low mood. He is likely only to be engaged in part-time
working with support. He can only
reasonably be expected to be able to work 20 hours per week and is unlikely to
be able to earn at an average of more than the National Minimum Wage over a
year. He is likely to be forced to
retire before he reaches 60 years of age".
According to the solicitor advocate
for the pursuer, amendment along these lines would materially simplify the
claim, and would make it more suitable for jury trial than it had been
before. By contrast counsel for the
defender, while not opposing immediate amendment of the Record as proposed, and
seeking no opportunity to answer the minute at this stage, maintained that if
anything the amendment made the pursuer's position worse. In particular, it was said, the new averments
introduced a range of complications into the area of residual working capacity
which had not previously required to be addressed.
Submissions for the defender
[5] Against
that background, counsel for the defender submitted that special cause still existed for withholding the case from
jury trial. Given the obvious
uncertainties as to the pursuer's future position had the accident not
occurred, with particular reference to his ability to undertake various forms
of employment in the future, the necessary calculations would involve too many
levels of complexity for the case to be suitable for determination by a
jury. Even on the amended pleadings it
was far from clear what the pursuer's employment situation would have been, now
or in the future, if there had been no accident. Questions arose, for example, as to whether
the pursuer would in fact have become a team leader in mid-2006, only months
after completing his apprenticeship and some 5 years earlier than had
previously been averred. On the
evidence, such a promotion might well return to being a future prospect only,
taking effect at some unspecified date, and in addition the pursuer's recent
employment report (production 6/14) at para. 7.7 still made reference to
the possibility of further promotion to a site agent in due course. More importantly the pursuer then went on, in
the face of the defender's assertions regarding future fitness for employment,
to make vague and inspecific averments as to (i) likely fitness for no more
than part-time working with support;
(ii) expected inability to work for more than 20 hours per week at
the national minimum wage; and (iii) likely
forced retirement before the age of 60.
There was no clear indication of whether the pursuer would ever actually
return to work, or if so at what date or in what capacity or with what degree
of job security or for how long. At page
10D of the Record, moreover, the pursuer's claim summary included ". . . future
earnings loss or failing which loss of employability on the open market",
thereby implying recognition that a multiplier/multiplicand calculation might
not be appropriate.
[6] The
significance of these matters became obvious when regard was had to the Ogden
Tables (6th edition) which would require to be used in computing a
claim for future loss of earnings. While
professing to be no more than a "ready reckoner" to help with certain aspects
of a calculation, the Tables provided a mass of complex actuarial detail as to
the computation of multipliers on different hypotheses, and also as to the
adjustments which might require to be made for future contingencies other than
mortality. In the 6th edition,
unlike previous editions, geographical employment location was abandoned as an
appropriate adjustment factor, as was the inherent risk in different types of
work. Instead, adjustments now fell to
be calculated by reference to three novel factors, namely a claimant's actual
employment or otherwise at the date of an accident, his educational
attainments, and the question whether he was "disabled" or not at the material
time. In that context, "disability"
could only be partial, but there was no indication of the level at which that
would apply or as to how greater or lesser degrees of disability might be
factored in. Moreover, in the
calculation of multipliers where promotion, job changes or other material
developments were in prospect for the future, the 6th edition
proposed a complex scheme whereby an "overall" multiplier would be split into
recalculated fractions for applications to different periods and multiplicands. As regards actual fitness for work in the
future, the necessary offset would be achieved by means of a separate
calculation involving comparable multipliers and adjustments in terms of the
Tables.
[7] A
further complication arose from the fact that the Ogden Tables, despite their
appearance of actuarial precision, contained little or no guidance as to how a range
of different variables might be allowed for in any calculation. The Tables did not specifically deal with the
risk of cessation of an employer's business, nor with any particular risk of a given
claimant becoming ill or unemployed, nor (since the 5th edition)
with the variable employment risks and opportunities in different parts of the
country, nor even with deficiencies in a claimant's pre-accident employment
history. Accordingly, even if the Tables
might provide assistance on some aspects of a calculation, there were many
other aspects on which no guidance was available at all. As regards residual employment potential in
particular, the Tables made no provision for calculating a primary multiplier
which did not begin at the date of trial.
Accordingly if the pursuer's anticipated return to work was delayed into
the future, some adjustment to the starting date would be required to allow for
that. However, it was difficult to see
how such an adjustment might be approached, bearing in mind that the purpose of
detailed multipliers was to enable a tract of future loss to be translated into
sums payable on decree and not some years ahead. Similarly, the Tables provided multipliers
based on assumed retirement ages at 5-year intervals, and paragraphs 13-15 of
the explanatory notes set out complex calculations which would be necessary to
reflect retirement at an intermediate age.
Here the pursuer merely averred a likelihood of forced retirement "...
before he reaches 60 years of age", and given the range of his disabilities
there was no way of telling how early or how late that might occur. The pursuer was still aged only 27, and any
appropriate multiplier was thus liable to fall within a very wide range. Yet paragraph 43 of the explanatory
notes stated inter alia that
"The factors in
the preceding Tables assume retirement at aged 65 for males and aged 60 for
females. It is not possible to calculate
expected working life times assuming alternative retirement ages from the LFS
data, since the employment data in the LFS are collected only for the working
population, assumed aged between 16 and 64 for males and between 16 and 59 for
females."
The same paragraph then went on to
suggest that intermediate retirement ages might just be ignored unless a
claimant was coming close to retiring at the date of trial.
[8] The
abandonment of geographical location as an adjustment factor in the 6th
edition of the Tables was also of concern in this case where, on the pursuer's
own averments, he had tried without success to obtain a joinery apprenticeship
for some eight years after leaving school.
Admittedly he had worked at Caithness Glass and in a hotel during that
period, but the pleadings did not disclose for how long these employments
lasted. Significantly, the pursuer's
"comparator" for current apprentices' earnings had (according to the employment
report at para. 7.6) been paid off by the employers in June 2006,
notwithstanding the fact that they had already lost the pursuer some two years
earlier. This again tended to raise
question marks regarding job security in that area of the country. In these circumstances there appeared to be a
real risk of the present case falling outwith the Tables' "statistical average"
approach, yet there was no guidance as to how the necessary adjustment would
fall to be made, nor indeed as to what levels and causes of "non-employment"
were intended to be covered under paragraph 33 of the explanatory
note. Might the superseded 5th
edition be looked at for appropriate factors? Alternatively might evidential comparisons
between the Wick area and elsewhere require to be drawn?
[9] With
these considerations in mind, counsel submitted that the proper conduct of a
jury trial in the particular circumstances of this case would be difficult if
not impossible. As the Tables envisaged,
complicated actuarial evidence might have to be led on both sides over and
above the evidence of medical and employment experts, and the evidential
position would remain fluid until a late stage.
Speeches would then follow, and the trial judge would then have to
charge the jury without the benefit of the detailed submissions which would
inevitably be called for at a proof. It
could reasonably be anticipated that the exercise of charging a jury in a case
like this would be fraught with difficulties, and moreover that an
inexperienced and unqualified jury would be faced with the task of making
complex calculations for which they were fundamentally ill-equipped. There was a real risk that in such
circumstances the calculations would not be carried out on a rational and
accurate basis, and since there would be no obligation to give reasons the
jury's decision might be so inscrutable as to deny any worthwhile right of
appeal.
[10] Judging by the pursuer's own valuation statement, which was
acknowledged to be non-binding, his advisors had themselves run into difficulty
with preliminary calculations. Even
assuming certainty for the pursuer's promotion to team leader and site agent at
specific dates, the pursuer's figures over three periods apparently ended up too
low by 0.851 of a multiplier-year which would translate into a shortfall of
some ฃ16,000 in damages! In addition,
the computation made no attempt to allow for important contingencies affecting
the future, nor did it attempt to evaluate the necessary offset referable to
actual fitness for work in the future.
Furthermore, post-promotion multiplicands were left blank. If that were the best that could be achieved
by professional advisors with time at their disposal, and with the benefit of
all of the guidance notes contained in the Ogden Tables, what chance was there
of a jury reaching a proper result where they would have neither the
professional experience, nor the luxury of time, nor a chance to study all
relevant materials?
[11] So far as authority was concerned, counsel submitted that
individual decisions might be of limited assistance since each case turned on
its own particular facts and circumstances.
In Robertson v Smith 2000 SC591, an Extra Division
allowed a case involving possible use of the Ogden Tables to go to a jury. However, that case concerned the 3rd
edition of the Tables in which fuller deductions for contingencies were
provided for. More importantly, the
court there made it clear that their decision was reached on a limited basis, namely
(i) restriction of the pursuer's claim to "average rates" for a driver or
joiner in the future; (ii) the pursuer's
permanent unfitness for work of any kind;
and (iii) the absence of any averments by the defender which might
necessitate what the court called "departure" from the Ogden Tables. Only one multiplicand and one multiplier would
be involved. Even so, the court
acknowledged that the issue of contingencies had caused them some difficulty,
and stressed that the position might be different if either side were proposing
a departure from the Tables including standard adjustments. Graham v
Dryden 2002 Rep LR104 was another
case in which issues were allowed, but there again only two multipliers would
(after amendment) be required. In
addition the real problem of contingencies was not apparently addressed, particularly
those not provided for under the Tables, nor was there any mention of the
difficulty which a trial judge might have in charging a jury appropriately in a
complex case. In Reid &c v BP Oil
Grangemouth Refinery Limited (Lord McCluskey, unreported, 8 May 2001), issues were also allowed
in a fatal case where it was submitted that ". . . the application of the Ogden
Tables made the matter easier because the jury would have a table from which to
compute the multiplier". Once more, the
real problem of contingencies was not addressed, perhaps because only a single multiplier
was under discussion. Furthermore, his Lordship drew an inapposite parallel
with the task of juries in criminal cases which did not involve any
responsibility to make calculations. It
was, apparently, assumed that a jury would ". . . understand matters of this kind when . . .
explained by accountants, actuaries, advocates and judges in the course of an
ordinary trial".
[12] By contrast, in Kennedy
v Forrest-Jones 2002 SLT 630, Temporary
Judge TG Coutts QC held that the interlocking questions raised by the
pursuer's pre- and post-accident physical and mental condition required calm
reflection on many matters of detail, which was more appropriately undertaken
by a judge, and that as a number of competing calculations under the Ogden
Tables could be envisaged, depending on the answers to these questions, special
cause had been shown by the defender for the withholding of issues. The difficulties there were, perhaps, similar
to those arising in this case, in that there was inter alia real uncertainty as to when, if ever, the pursuer would
return to work. In such circumstances,
it was recognised that direction of a jury would be "complicated", although even
in that case the real problem of contingencies was not apparently considered in
any detail. Significant parallels could
also be drawn with Lord Kingarth's refusal of issues in Easdon v A Clarke & Co (Smithwick) Ltd 2006 CSOH 12, and with my own
refusal of issues in Slessor v Vetco Gray (UK) Ltd 2007 CSOH 130 and O'Neill
v Dowding & Mills Plc & Another
2007 CSOH 170. All of these decisions
proceeded on the ground of significant complexity of future loss calculations
involving use of the Ogden Tables. Arguably,
so far as residual earning capacity was concerned, the present case was more
complex than Slessor because
(i) the pursuer there had already obtained lower-paid part-time employment
following his accident, and (ii) no question of early retirement arose in that
case. More generally, it was said,
paragraphs [18] and [19] of my decision in O'Neill
highlighted the practical difficulties which could be foreseen if calculations
involving undue complexity were remitted to jury trial.
[13] For all of these reasons, counsel for the defender maintained
that the level of complexity in this case rendered it unsuitable for trial by
jury, and that accordingly "special cause" had been made out. Over and above the difficulties inherent in
the computation of any award for future loss of earnings, it could also be said
that a jury was liable to be confused by the number of different multipliers (Ogden
and non-Ogden) which would fall to be used for different purposes. Apart from the separate multipliers which
would be required in relation to earnings loss and any offset, different
multipliers would (as the pursuer's valuation statement confirmed) be required
for services under Sections 8 and 9 of the Administration of Justice Act 1982,
and for the recurring additional cost of an automatic car. A line had to be drawn between cases which
were suitable and unsuitable for jury trial, and the particular features of the
present case placed it on the latter side of that line.
Submissions for the pursuer
[14] In a well-prepared and
measured response, the solicitor advocate for the pursuer began by maintaining
that his amendment had effectively removed the principal target of the
defender's initial attack on the first day of the debate. In particular, proof of the pursuer's claim
for future loss would no longer involve the "multiplicity of calculations"
which had caused trouble in Slessor and
other cases. Since the pursuer's
promotion to team leader would have pre-dated the trial, there was now no
question of future promotions or job changes having to be taken into account,
and thus no risk of split multipliers being required in that context. While admittedly less simple than Robertson, where the pursuer had no
future earning capacity at all, the present case was not really much more
complex and the necessary arithmetic would be relatively straightforward. The method recommended at paragraph 45 of the
explanatory notes to the Tables involved only a few simple steps which could
readily be understood and applied by a jury.
Special adjustment would only be required in extreme situations, and for
specific reasons, but that was not the case here. The present case was not, in other words
sufficiently removed from the mean to justify any departure from the Tables as
they stood. It was always possible that
a jury might not accept the pursuer's promotion to team leader in 2006 as
averred, but that could not constitute special cause for withholding the case
from jury trial. Similarly, geographical
location posed no problems for the pursuer.
According to him there was no general lack of employment in the Wick
area, and his employment after leaving school had been full-time and
continuous. No period of unemployment
was averred, nor indeed anything to suggest any difficulty for a young man
obtaining work in that locality. Even if
a joinery apprenticeship had been hard to come by, that was not necessarily a
geographical problem. Even if, contrary
to that submission, some special adjustment for geographical location was
thought appropriate, that could be achieved on a simple, broad axe basis. There could be no question of any complex
interaction of factors from the superseded 5th and current 6th
editions of the Tables.
[15] Moving on to the necessary offset for residual earning
capacity, it was submitted that the calculations would again be
straightforward. Paragraph 45(6) of
the explanatory notes to the Tables described how they should be carried out,
and little complexity was involved. By
comparison with the split multiplier calculations which would be required for
any future promotion or job change, this would all be relatively easy for a
judge to explain to a jury. The jury
would, in addition, be expected to have before them such parts of the Tables
and explanatory notes as each party considered relevant. This had happened in the past, and reflected
the role of the jury in reaching a decision on the materials placed before
them. If the outcome was inscrutable,
that was simply a feature of jury trial as a mode of procedure. In the present case, the calculation would
involve no more than the application of Table 7, modified by the
appropriate part of Table B, both of which could flexibly accommodate
changes in age or employment status by the date of the trial. Admittedly the Tables did not explain how to
deal with a situation where the pursuer was, at the trial date, either in work
or out of work on a short-term basis only.
A broad axe adjustment would, it was submitted, be the appropriate
solution. Overall, the 6th edition
of the Tables was simpler and clearer than its predecessors, although
inevitably "compromise" would be required where the statistical average
approach did not cater for the particular circumstances of an individual
case.
[16] With regard to the pursuer's uncertain retirement date, this
did not create any particular complication.
Paragraph 43 suggested that any age falling between tables should
simply be ignored, and depending on the evidence it would be open to a jury to
choose Table 3 or 5 or 7 as a "ready reckoner" to reflect the pursuer's
likely working life.
[17] In the whole circumstances, the calculations which would be
involved in this case were not so complex as to render the claim unsuitable for
determination by a jury. The pursuer offered
to prove a likelihood of working on up to the age of 60; many of the supposed variables were already
built into Table B; and any additional
adjustments could be made on a broad axe basis.
The present claim fell substantially within the scope of the general
scheme of the Tables, and it was significant that the defenders had no specific
averments to suggest otherwise. For the
avoidance of doubt, any offer to prove promotion prospects or change of job was
disclaimed, the decision having been taken that it would no longer be
appropriate to proceed along such lines.
Any risk of future promotion having to be catered for was thus
speculative and should be left out of account.
[18] Finally, as regards other heads of claim (services and the cost
of replacing an automatic car) it was submitted that no great complication
arose there either. In Stark v Ford (No. 2) 1996 SLT 1329, an Extra Division held that jury trial
could properly be allowed where precise quantification of a services claim was
impossible. The differential (non-Ogden)
multipliers in the pursuer's illustrative updated valuation simply reflected
the fact that the pursuer's former ability to help older relatives would probably
have outlasted their ability to provide assistance to him.
[19] For these reasons, it was submitted that no special cause for
withholding this case from jury trial had been made out. As was made clear in the leading case of Graham v Paterson 1938
SC 119 (per the Lord Justice Clerk at
p. 127), special cause had to involve a real ground of substance, and not a
mere hypothetical difficulty conjured up by the ingenuity of counsel.
Discussion
[20] 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 defender disclaimed any such suggestion. On the other hand, judging matters on a
practical common sense 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 Ogden 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 possible assistance from the guidance notes in
the Tables themselves, and would have the facility of taking time to consider
all issues carefully before pronouncing a fully reasoned, and thus reviewable,
decision. Trial by jury would, I think,
have none of these advantages, and in a case such as the present there is in my
view a material risk of an
unsatisfactory, yet perhaps irreversible, outcome.
[21] Without going into unnecessary detail, I am satisfied that in
the circumstances of this case application of the Ogden Tables would be a
source of real difficulty at a jury trial.
Apart from complex actuarial evidence being required, which a jury might
have difficulty in following, I am struck by the multiplicity of different calculations
which would require to be undertaken, the difficulty of identifying appropriate
multipliers, and in addition, the difficulty of dealing with contingencies
other than mortality. Admittedly some of
these contingencies might be capable of adjustment within the Tables themselves,
but others would not, and the Tables are silent as to the basis on which the
latter might be factored in. 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. Moreover, the task of charging a jury in this
case would in my view 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. To my mind it would not be a
responsible exercise of the court's powers to allow issues where such problems
can readily be foreseen.
[22] In reaching these views, I have not found any of the
authorities cited to be of great assistance, since each case must depend on its
own facts and circumstances and the impression of the court in that
regard. I note, however, the significant
reservations which were expressed by the Extra Division in Robertson where the issues were very much simpler than they are
here. That case concerned the 3rd
edition of the Tables in which the recommended method of calculating future
loss of earnings involved applying a single multiplier to the net anticipated
annual shortfall between (i) what the pursuer would have been likely to earn
had no accident occurred, and (ii) any residual post-accident earning
capacity. In delivering the opinion of
the court at pp. 593H-594B, Lord Marnoch said
".... the
foregoing decision proceeds on the bases, first, that the pursuer's case is
that he will at no time be able to undertake any form of remunerative
employment; second, that the defender has
no substantive averments on which to found any detailed rebuttal of that
case; third, that this is not a case
involving any tax complications; and,
fourth, that neither party has made any substantive averments such as would
involve a departure from the Ogden Tables, including what we have termed the
"standard" adjustment or adjustments for contingencies. We wish to reserve our opinion as to what
might be the position in any different set of circumstances."
Against that background, it seems
to me that court's decision in Robertson
can readily be distinguished for present purposes. In particular I regard the emphasis which the
court placed on the likely simplicity of calculations as a striking feature of that
case, and suspect that if the quoted circumstances had not been present the
outcome might well have been different.
[23] In my view the decision of Lord McCluskey in Reid is also distinguishable. It concerned a family claim on the death of a
man through disease sustained in his work, and thus again involved calculations
less complex than those which are in prospect here. In particular there could have been no
question, in that case, of a complex offset for post-accident earnings or
earnings potential having to be assessed, and in a sense Reid was on all fours with Robertson
in that the deceased would obviously never work again. In any event I do not, with respect, derive
much assistance from the observations of Lord McCluskey regarding the
capacity of juries in general to cope with difficult issues. In the first place, since each case must turn
on its own particular merits, these observations may be presumed to relate to
the circumstances of the family claim which was under consideration. Even if I am wrong about that, however, and
the remarks are thought to be of wider application, I still do not find them
particularly helpful here. The supposed
ability of juries to deal with what tended to be broader assessments of damages
in past decades seems to me to shed little light on the prospect of a jury
coping with the evaluation of uncertain future employment potential by
reference to the 6th edition of the Ogden Tables. Similarly, there is in my view little to be
gained from a comparison between civil and criminal juries in this
context. No-one would dispute that
criminal juries regularly deal with difficult issues, and sometimes require to
assess expert evidence, but the important point is surely that criminal juries
are not expected to undertake damages calculations at all, far less
calculations to the degree of actuarial precision and complexity which the
Tables now require.
[24] 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 cases of Slessor and O'Neill. The most striking of these parallels is, of
course, the significant continuing uncertainty which, on an assessment of the
pleadings and other available documents, affects particular elements of the claim
for future loss. In one respect it might
be argued that Slessor and O'Neill both involved greater complexity
than the present case, namely the likely need for calculations involving split
multipliers to take account of future promotion or job change prospects, and if
the present pursuer's approach were to be taken at its highest it is possible
that any such need might be avoided here.
From a practical standpoint, however, I am not satisfied that the risk
of split multipliers having to be calculated can safely be discounted at this
stage. If the sudden and as yet untested
advancement of the pursuer's promotion to team leader by some 5 years (by
comparison with his pre-amendment pleadings) could not be reliably established
in evidence, then inevitably the spectre of future promotion would revive along
with its attendant extra complexities. For example, if the pursuer's upgrading to team
leader were, on the evidence, to be delayed until 2011, consistent with the
pursuer's original valuation (production 10), then at once split
multipliers would be required to reflect the consequent earnings increase in
the future. Moreover, I note that the pursuer's recent
employment report (production 6/14) at para. 7.8 still holds out the
possibility of further promotion to site agent, albeit with different
employers. Accordingly, while I do not
doubt the sincerity of the pursuer's stated intention to keep future promotion
prospects out of the picture, there seems to me to be a material risk of that
intention being thwarted.
[25] Over and above that, I consider that the pursuer's residual
earning capacity in this case presents uncertainties, and resultant
complications, which were absent in Slessor
and O'Neill. In particular, the pursuer's return to some
form of employment may well post-date any trial; the nature and security of any such work has
yet to be identified; and the pursuer
specifically avers the likelihood of forced retirement "... before he reaches 60
years of age". In these circumstances a
jury would require to consider how to calculate a multiplier beginning at a
future date where the Tables relate only to the date of trial; they would require to build in adjustments -
perhaps by way of split multipliers - to reflect the potential for job changes
over several decades; and they would
also require to determine how to reflect an uncertain retirement date which
would not necessarily coincide with any available table. The retirement age calculations suggested at
paragraphs 13-15 of the explanatory notes were variously described before me as
"finnicky" and "complex", and in my opinion they would run a real risk of being
beyond the capacity of many jurors.
[26] As regards contingencies, a jury would also need to consider
whether the degree of the pursuer's disability was sufficiently severe to
render the discount factors in Table B inapposite, and if so to determine,
without specific guidance from the Tables themselves, how any adjustment should
be attempted. It would also be necessary
for the jury to perform a comparable exercise with regard to the degree of job
security which the pursuer might have in the Wick area. Judging by the pursuer's averments regarding
long-term pre-accident difficulties in finding a suitable apprenticeship, and
by the recent disclosure that his "comparator" was paid off in June 2006, the prospect
of a special adjustment being required in this area must in my view be regarded
as material. Again the Tables are silent
as to how any such adjustment should be made.
[27] Taking all of these considerations into account, my conclusion
is 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.
Disposal
[28] 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 Record.
