Scottish Court of Session Decisions

Pursuer: Allardice; Russel & Aitken, LLP

Defender: Clarke, Q.C.; Andersons Solicitors LLP (Glas)

Third Party: Thomson, Solicitor Advocate; Harper Macleod LLP (Glas)

17 November 2009

Procedure

[1] This case came before me on the motion roll. The motion on behalf of the pursuer was to allow issues. The motion was opposed on behalf of the defender and the third party.

Submissions

[2] The reasons for the defender's opposition to issues were that:

"within the pleadings, the pursuer seeks past and future loss of earnings together with disadvantage on the labour market. This is reflected in the Statement of Valuation of Claim for the pursuer. However, there are no relevant figures quoted in the valuation of any of these heads of claim. Likewise, there is no indication of the basis upon which any calculations for such loss are to be made. If the 6^th edition of the Ogden tables are to be employed, then the relevancy of the claim for 'loss of employability' as a head of claim is doubtful - in providing a basis for future loss of earnings, the tables purport to factor in an element of loss of employability. Ultimately, the present action is one in which either the Ogden tables or a more conventional approach could be applied. Identifying which approach should be employed in the circumstances is a complex matter and one liable to lead to confusion on the part of any jury".

[3] Senior counsel in developing his reasons also referred to the multiplicity of expert reports in relation to damage and loss, and the difficulties related to the claim in respect of psychological disorder. He also prayed in aid the complexity which flowed from the involvement of the third party and the issues to be explored by the third party in evidence. Senior counsel for the defender accepted that he had to establish special cause. He submitted that in the circumstances of this case the matters in dispute were sufficiently complex that they would cause confusion to the jury and that amounted to special cause. He conceded that the decision was a matter for the discretion of the Court.

[4] The reasons for opposition to issues by the third party were that:

"1. The question of whether the pursuer being unrestrained by a seatbelt at the time of the collision was due to a failure on the part of a third party to take reasonable care for the safety of her passengers is an issue of complexity;

2. The question of whether there was any contributory negligence on the part of the pursuer, who was aged 10 at the time of the accident, is a complex question;

3. The question of whether the pursuer's injuries would have been materially less severe if she had been restrained by a seatbelt is a complex one. In particular, the question of whether the pursuer's psychological injuries would have been materially less severe if she had been wearing a seatbelt, and, if only her physical injuries were less severe, how a contributory negligence deduction and/or apportionment of damages between the defender and third party applies to the various heads of claim, involves unusual complexity;

4. There is additional complexity caused by the question of how a contributory negligence deduction and/or apportionment of damages between the defender and third party interacts, in the event that there was contributory negligence on the part of the pursuer, failure on the part of the third party to take reasonable care for the safety of her passengers and the pursuer's injuries would have been materially less severe if she had been restrained by a seatbelt; and

5. The question of whether the pursuer's contraction of MRSA during her stay in hospital following the collision was a reasonably foreseeable consequence of the injury sustained in the action is an issue of complexity".

These matters were developed in oral submission by the solicitor advocate for the third party. Reference was made to Millar v Watt 2005 SCLR 143 in support of the difficulties which might arise in front of a jury because of multiple roles of the mother of the pursuer, Mrs Nicola Griffiths. It was submitted that Mrs Griffiths is a witness to fact. She is also the provider of services to the pursuer and in that role will be entitled to recovery from the pursuer of any relevant damages awarded. She is also blamed by the defender for contributing to the accident. It was submitted that it was not clear whether she is blamed only in her role as driver or also because of her relationship as mother to the pursuer. Although she is the third party, she is represented by insurers who have a contrary interest to her, in relation to the minimisation of damages in relation to services provided. Reference was also made to McFarlane v Thain & Campbell (2006) CSIH 3.

[5] Counsel for the pursuer submitted that the case was simple in relation to liability. Counsel emphasised that the pursuer has a right to jury trial unless the onus on the opposing parties was discharged. In the course of submissions, counsel made a motion at the Bar in relation to Rule of Court 26.7(3). He referred to the unreported case of Carmichael v Isola Werke UK Ltd and Wesero and Maschinenbau GMBH. He accepted that was a case in which the Court had granted a motion in terms of 26.7(3) in circumstances where there was consent by all parties. He submitted that in the event that the Court was minded to refuse the pursuer's motion for issues, the Court was invited to proceed under Rule 26.7(3) to allow the action so far as directed against the third party by the defender to proceed as the first stage to proof and to allow issues in respect of the action between the pursuer and the defender.

[6] No objection based on lack of notice or any other ground was taken on behalf of the defender or third party. There was no motion to continue the case. The solicitor advocate for the third party, having considered the matter decided to consent to the pursuer's motion moved in terms of Rule of Court 26.7(3). He submitted that this would enable the issues as between the defender and third party to be resolved at considerably less expense to the third party and that this was a solution which had merit.

[7] Senior counsel for the defender continued to insist in his opposition to issues and was opposed to splitting the action in the way envisaged by Rule of Court 26.7(3). He submitted that this would involve considerable overlap in evidence and additional expense.

Discussion

[8] In this case it is alleged that the pursuer suffered loss and damage, as averred in Statement 5, following a road traffic accident caused by the fault of the defender. At page 17A-B, the defender admits that the accident was caused by the fault of the defender under explanation that the injuries sustained were materially contributed to by the fault and negligence of the pursuer's mother. At page 17D-E on the hypothesis of fact averred by the third party, it is averred that the pursuer herself contributed to her injuries through her own negligence in removing her seatbelt and in delaying replacing it when instructed to do so. The facts and issues which may bear upon contributory negligence raised by the defenders and third party are not in my opinion complex and are well suited to jury trial. The pursuer does not seek to adopt the defender's case of contributory negligence in relation to her mother who is the third party. I was prepared to accept the submissions by senior counsel that there was some complexity in relation to loss and damage. In my opinion however, had this case been limited to an action between the pursuer and defender, I would not have been persuaded on his submissions that there was special cause to justify the refusal of issues. The use of multiple experts, the combination of physical and psychological damage and the potential application of the Ogden Tables are far from unusual in jury trials. I consider that all the matters which are in dispute between the pursuer and the defender are matters upon which a Court would be well able to direct a jury focusing the issues in dispute. I required to consider also the cumulative submissions on behalf of the defender and third party. I was persuaded that even with careful directions, the jury might have difficulty following the directions and in disentangling the issues between the parties. Senior counsel for the defender and the solicitor advocate for the third party managed to present a case of complexity which did concern me. The multiple and rather conflicting roles of the pursuer's mother was part of my concern. It also emerged that there was a dispute between counsel for the pursuer and the solicitor advocate for the third party about the potential relevance of the medical evidence and the directions to be given about contributory negligence. My conclusion on the presentation on behalf of the defender and third party, that there was special cause was a very narrow one. I accept that I may have been persuaded wrongly by the submissions of complexity, difficulty and confusion advanced and that these perceived problems may evaporate at the door of the Court. Had I not been so persuaded I would have granted the pursuer's motion. I am of the opinion that it would be unfortunate if the pursuer were to be denied a jury trial because of complexity introduced by the introduction by the defender of a third party, if there was another solution. The pursuer and the third party wished another solution in terms of Rule of Court 26.7(3). I accept that inevitably in this case the splitting of the hearings would lead to some duplication of evidence. The introduction of a third party also has implications for the length and complexity and expense of the hearing. I consider that there is no perfect solution to this problem. I endeavoured to provide a solution which would enable the pursuer to have a jury trial after the defender and third party had an opportunity to resolve the issues which they wished to dispute.