Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 116
PD2881/10	OPINION OF J BECKETT, Q.C., Sitting as a Temporary Judge in the cause STEPHEN LEWENDON Pursuer; against INTERNATIONAL PAPER (UK) LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Lloyd, Advocate; Anderson Strathern

Defender: Watson, Solicitor-advocate; Simpson & Marwick

5 July 2011

Introduction

[1] The pursuer seeks damages for personal injuries sustained by him in the course of his employment by the defender at the defender's paper mill in Inverurie. On 13 January 2009, the pursuer's right arm was drawn into machinery as a result of which he was badly injured. He required to have his arm amputated surgically below the elbow, as a result of which he was unable to continue to work for the defender. Liability is admitted but the defender pleads contributory negligence. The pursuer's claim for damages includes a head of claim for future loss of earnings.

[2] The case came before me on the motion roll. The motion made on behalf of the pursuer by Mr Lloyd, Advocate, was to allow issues. The motion was opposed on behalf of the defender, by Mr Watson, Solicitor-Advocate, who acknowledged that this was an enumerated cause and that the effect of the Court of Session Act 1988 sections 11 and 9(b) was that it would be for him to show special cause for a proof to be allowed. I was addressed first for the defender and then for the pursuer on the Record as amended, 15 of process.

Submissions for the defender

[3] Mr Watson in his well presented submissions contended that calculation of future wage loss would be dependent on a range of variables such that there would require to be a multiplicity of calculations in this case. The probable application of the Ogden Tables, 6^th Edition, will impose such a level of complexity that, in the particular circumstances of this case, special cause was shown. The focus throughout was on future loss of earnings, I was not addressed on the question of future loss of pension contributions.

[4] Mr Watson drew attention to certain averments in the amended Record. The pursuer had not been able to return to work with the defender and was made redundant in April 2009, which would have happened to him anyway as the paper mill closed to production. It is then averred:

'Thereafter, and had the accident not occurred, the pursuer would have sought, and likely found, work elsewhere. He would have found work in the offshore industry, as a roustabout/roughneck, assisted by the outplacement programme established upon closure of Inverurie Mills. If he had not obtained work offshore, it is likely that the pursuer would have found work onshore as a machine operator, machine setter, or as a general semi-skilled engineer. He has been unable to return to work since the accident in any capacity. He is permanently disabled from manual work of the kind he did before the accident...He is permanently disabled from any job involving sound bi-manual dexterity. He continues to suffer loss of earnings, and will do so for the remainder of his working life. He will suffer a loss of those pension contributions which his employers would otherwise have made once he had resumed work after his redundancy....although the pursuer will have a future capacity to work, his prospects of finding work, in future, it is likely that this will be part-time, light or non-manual work, earning significantly less than he would otherwise have earned, after his redundancy from employment with the defender."

[5] In answer, the defender avers

" ...the pursuer is a practical and well motivated individual. The pursuer can be provided with prostheses which will provide a robust hand function and a variety of grip patterns. He is capable of full time employment."

[6] Mr Watson referred to paragraph 19 of the Explanatory Notes to the Ogden Tables and pointed out that the tables do not take account of "risks and vicissitudes of life" other than mortality. The selection of the appropriate level of adjustment was far from simple in this case. There would probably need to be a split of the appropriate multiplier to take account of different salaries which the pursuer might have achieved at different ages and in different positions. He observed that in 6/7 of process, a report for the pursuer by an employment consultant, Keith Carter, it was suggested that, if employed offshore, the pursuer might have progressed to the promoted position of assistant driller. A jury would also have to separately calculate his probable future earnings in his residual capacity which in turn would require an assessment of how long it will take him to find paid work and the jury would have to consider for how long he would remain in work.

[7] Mr Watson referred me to a number of cases to support his submissions. With reference to an unreported opinion of Lord McEwan of 30 March 2011, Brand v Transocean North Sea Limited [2011] CSOH 57, paragraphs 46 and 47 and Blamire v South Cumbria HA [1993] PIQR Q1, he observed that there were so many uncertainties that there may be a question whether the Ogden Tables would be applicable at all.

[8] Mr Watson then made reference to the opinion of an Extra Division given by Lord Marnoch in Robertson v Smith 2000 SLT 1012. He pointed out that in that case the pursuer was a boy aged 12 who would never be able to work, which factor reduced the amount of calculations required and that only standard adjustments were in contemplation, unlike the present case where it was averred that the pursuer would have gone to work offshore. He also suggested that the third edition of the Ogden Tables which was before the court in that case involved simpler calculations than the present edition.

[9] Mr Watson founded on the opinion of Temporary Judge Coutts, Q.C. in Kennedy v Forrest-Jones 2002 SLT 630 in which issues were refused. In addition to complex medical issues which would first have to be resolved, it could readily be envisaged that there would be a number of competing calculations depending on the view taken of factors such as when, if ever the pursuer would return to work.

[10] Mr Watson had placed before me three opinions of Lord Emslie; Slessor v Vetco Gray UK Ltd 2007 Rep LR 83, [2007] CSOH 130, O'Neill v Dowding and Mills PLC 2008 Rep LR 40, [2007] CSOH 170 and MacDonald v Mallan [2008] CSOH 1. He addressed me in some detail on the first of these cases, submitting that the uncertainties as to the pursuer's residual working capacity narrated at paragraphs 4 and 5 were mirrored in the present case. He founded on what was said in paragraphs 16 and 18 and suggested that the circumstances in the present case presented similar difficulties.

[11] In Slessor, Lord Emslie noted at paragraph 16 that the fact that the Ogden Tables would require to be applied was not, of itself, a sufficient reason for denying trial by jury, whilst also observing that a personal injuries action may involve such complexity as to indicate a proof. In a proof, the judge would have the benefit of full submissions on fact and law including the application of different parts of the tables, and the treatment of matters not addressed in the tables and would have access to the explanatory notes to the tables and the facility to take time to reach a reasoned, and therefore reviewable, decision. In paragraph 17 he referred to the multiplicity of calculations which would need to be attempted, the difficulty of identifying appropriate multipliers and the difficulty of dealing with the many variable and uncertain contingencies for which allowance would have to be made. The necessary assessments would be for the jury and the judge would need to be very careful not to usurp the jury's function in his directions. He concluded his consideration of the application of the Ogden Tables to that case at paragraph 18.

"[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."

Whilst there were other factors in that case which were regarded as important, namely the confused picture presented in pleadings including uncertainty as to the pursuer's working capacity, a question as to whether working capacity would be affected by feelings of anger and difficulty arising from the uncertain factual basis on which the pursuer obtained summary decree, in paragraph 25 Lord Emslie concluded

"For all 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".

[12] Mr Watson also drew to my attention paragraph 22 in MacDonald, where Lord Emslie had observed that authorities were of little assistance in this field since each case must depend on its own facts and circumstances and the impression of the court. Lord Emslie went on to observe that it was a striking feature of the decision in Robertson that the calculations were likely to be simple and he suggested that otherwise the outcome might well have been different.

[13] Mr Watson accepted that it had to be borne in mind that the jury may be assisted by the speeches of counsel and directions from the judge. He concluded by accepting that the possible application of the Ogden Tables did not of itself in all cases amount to special cause, but he submitted that it did in this case where multiple complex calculations would be required against a background of doubt as to whether Ogden calculations should be applied at all in the light of the uncertainties in the case.

Submissions for the pursuer

[14] Mr Lloyd founded on the decision in Robertson and he drew my attention to the way in which the court framed the question for decision in paragraph 2 of its opinion,

"In the result, the single substantive question debated before us became very clearly focused as being whether in the light of the now established practice of using the Ogden tables as the starting point for the assessment of long term future loss, the action was, or was not, suitable for jury trial".

[15] Mr Lloyd observed that the Ogden Tables would not bind a judge or a jury, they simply offered an option of a method for assessing future losses. He submitted that the advent of the Ogden Tables had actually made the jury's task easier than it had been in the past. I was not convinced by that suggestion. The tables may offer a more precise method for going about the task, but that does not mean that it is easier.

[16] Mr Lloyd sought to vouch that the task for the jury was not all that difficult by referring me to what was said by Sir Michael Ogden, quoted at page 5 of the current tables.

"When it comes to the Explanatory Notes we must make sure that they are readily comprehensible. We must assume the most stupid circuit judge in the country and before him are the two most stupid advocates. All three of them must be able to understand what we are saying".

However, this is referring to the explanatory notes, which Mr Lloyd accepted that a jury would not be given.

[17] Mr Lloyd founded on the case of McKeown v Sir William Arrol and Co 1974 SC 97, to vouch a proposition that whilst the complexity of questions which a jury had to decide, and the confusion which this might cause in the mind of jurors, was a relevant consideration in relation to special cause, the mere number of separate sums which fell to be determined, 26 in that case, was not an adequate reason to deny issues.

[18] Mr Lloyd pointed out that in the case of Brand there had been a proof in which the pursuer had said that he would have been promoted to the position of rig manager. That could be contrasted to the present case where the pursuer was arguing that he ought to be assessed for future loss on the basis of notional earnings at a midpoint between roustabout and roughneck.

[19] Mr Lloyd next referred me to an unreported opinion of Lord Wheatley, John Crawford v Renfrewshire Council, 5 December 2000, to vouch that the fact that a jury may have to make a number of calculations and to apply different multipliers did not necessarily amount to special cause. It is not apparent from the report that future loss of earnings featured in that case.

[20] Mr Lloyd founded on Reid and Others v BP Grangemouth Refinery Ltd, 8 May 2001, an unreported opinion of Lord McCluskey. In that case, a fatal case, the defender had resisted issues on the basis that the Ogden Tables would have to be applied to both loss of support claims and to loss of services claims from different pursuers. Lord McCluskey noted the decision of the Extra Division in Robertson and suggested that there was nothing particularly complex about the case. He noted the capacity of juries to cope with complex criminal cases and alluded to past experience of juries computing damages in cases involving loss of financial support. The presence of articulate experts to explain the tables meant that a jury's task was not any more difficult than it would have been without the tables, and the jury would also be assisted by counsel and directions from the judge. Special cause was not shown.

[21] Mr Lloyd then referred me to the opinion of Lady Paton in Graham v Dryden 2002 Rep LR 104. In that case the court was confronted with an argument that a number of features of the case dictated that special cause was shown. Lady Paton rejected each of the arguments, and in relation to future wage loss and future pension loss, with reference to Robertson, decided that the fact that more than one multiplier may require to be considered by the jury was not in itself special cause and noted that only two multipliers would be required, paragraph 24. She had noted in paragraph 17 that the pursuer founded on the fact that the jury would be assisted by actuarial evidence as well as the judge's directions.

[22] Mr Lloyd pointed out that in Kennedy, the Ogden Tables had not been the only source of complexity, there were medical complications, including an issue as to whether the pursuer had a pre-existing depression. In relation to the three decisions of Lord Emslie, Mr Lloyd wished to add nothing beyond suggesting that each of those cases depended on its own facts and circumstances which he suggested were "slightly more complicated than the present one". Accordingly there was no criticism of any part of the reasoning in those cases. It is fair to observe that in Slessor and O'Neill concerns about the pleadings formed part of the difficulties standing in the way of issues being allowed and Mr Watson did not found on any deficiency in the pleadings in the present case. On the other hand, in MacDonald, there does not seem to have been difficulty with the pleadings.

[23] Mr Lloyd sought to illustrate the absence of undue difficulty by taking me through the calculation which the pursuer proposed in his statement of claim in relation to future wage loss. The pursuer, aged 35 would retire at 65. From table 9, the appropriate multiplier was 20.53. In making the appropriate adjustment for educational attainment, in Table A, the mid range GE-A had been selected, appropriate for a skilled manual worker, according to Mr Lloyd, and this dictated a factor of .9 which gave a figure of 18.48 as the multiplier. Using £22,453 as the multiplicand, the midpoint earnings between roustabout and roughneck, net of tax, according to the pursuer's expert, this gave a figure for future earnings of £414,931. By proposing this midpoint figure, the pursuer had avoided any need for applying different rates at different times and so this would not be a case in which split multipliers would be required. From this figure fell to be deducted the post-accident earnings. On the basis that the pursuer, if he resumes work, will do so on a part time basis he would earn £6,049 per annum according to Mr Carter and applying a discount factor of .28 to 20.53, this gave a figure of 5.75 as the appropriate multiplier. The discount of .28 came from Table B. The sum derived by multiplying these figures, £34,781, would then be subtracted from £414,931.

[24] Mr Lloyd acknowledged that there were points of dispute to be resolved. From the defender's statement of claim, he deduced that there would be a challenge as to whether the pursuer would have found work offshore in the absence of any history of such work, and the defender proposed a multiplier of 17.81 as opposed to 18.48 and anticipated a substantially higher residual earning capacity.

[25] Mr Lloyd conceded that the assessment of contingency was not an easy matter in this case and he conceded that in relation to assessment of future earnings absent injury, it had to be noted, that the pursuer would have been made redundant regardless of his accident. This may lead the jury to discount further in making an adjustment. Assessment of contingency post accident was also controversial and difficult and the jury might choose a different adjustment factor to the .28 he proposed if they concluded that the pursuer's functioning and prospects were better than they had been taken to be by Mr Carter.

[26] Mr Lloyd did not envisage that there would be actuarial evidence which he said was not necessary in the present case where the pursuer was seeking to rely simply on figures and factors in the Ogden Tables without any actuarial adjustment to them.

[27] Mr Lloyd argued that decisions on the factual basis of the claim such as what the pursuer would have achieved absent his accident, and what his residual capability is, and what level of earnings he would be likely to achieve in the future, were all matters which would have to be resolved as a matter of fact on the basis of the pursuer's evidence and competing expert evidence from employment experts and doctors. A jury was at least as well placed as a judge to perform such assessments. Once it had resolved those questions, the calculations required would not be unduly difficult.

[28] At one stage in his submission Mr Lloyd suggested that as the case goes on it may be that differences between the parties on the question of contingencies would narrow, making the jury's task easier. That suggestion is speculative, and in any event, I require to make the decision on the information available at this time for the reasons given by Lord Emslie in paragraph 15 of O'Neill.

Discussion

[29] The case of Robertson vouches that the mere fact that the Ogden Tables will require to be applied is not, of itself, a sufficient reason for denying trial by jury, which was acknowledged by both sides. The citation of previous decisions was helpful in identifying some of the features of cases involving the Ogden Tables which have influenced judges one way or the other. Nevertheless, each case must depend on its own facts and circumstances and the impression of the court in relation to them. In Robertson, the concerns of the Extra Division appear to have been assuaged by considering the issues which the jury would actually have to address.

[30] In a persuasively argued submission, Mr Lloyd sought to demonstrate that even with the use of the Ogden Tables, the jury's task may not be unduly difficult and there is some attraction in his argument. The necessary steps which he envisaged are explained in paragraph 45 of the Explanatory Notes and the exercise is not very different to example 3 at page 19.

[31] However, in an adversarial process, the way in which issues develop as evidence is led, challenged and countered is unlikely to leave matters as neat and tidy as Mr Lloyd sought to persuade me they would be. It will be in the pursuer's interest to maximise his likely earnings potential absent injury and minimise his residual post-accident earning capacity. The defender will have an interest in achieving the converse. Whilst it is understandable that Mr Lloyd should seek to persuade me that there would be no need for split multipliers to be used in the calculations, I am unconvinced that that will remain the position.

[32] Mr Lloyd specifically referred me to 6/7 of process and indicated that he accepted that it was open to the court to consider the productions lodged in process. Neither party addressed me on the content of 7/2 of process, Employment Report, by Gordon Cameron, Vocational Consultant. At paragraph 3.5.1 Mr Cameron observes that it might be expected that if the pursuer gains work it may take him 4-5 years to reach median earnings rates. His earnings zenith would be in his forties and from age 50 his earnings would be expected to drop by 7% and after 60 they would be expected to drop by 17%. Such eventualities are recognised in paragraphs 22 and 23 of the Explanatory Notes to the Ogden Tables which were drawn to my attention by Mr Watson.

[33] Mr Lloyd suggested that the pursuer's choice of an average for likely future earnings absent injury would avert the use of split multipliers. However, armed with this material, the defender is likely to seek to demonstrate that the pursuer's valuation is over optimistic, and to do so he may introduce split multiplier calculations. Mr Watson alluded to this in his submissions. Mr Lloyd may find it hard to resist undertaking the same exercise in relation to post accident earnings, even if it is not in the defender's interest to do so. The introduction of split multipliers appears to me to materially increase the complexity of the necessary calculations.

[34] Even if Mr Lloyd were to strive to avoid eliciting from the pursuer and Mr Carter that the pursuer might have been promoted beyond roughneck had he not been injured and worked offshore, there is no guarantee that that issue will not feature, introducing another possible need for split multipliers.

[35] At paragraph 2.11, Mr Cameron points out that it may be speculative as to whether the pursuer, who by the age of 35 had never worked offshore, would have actually done so, and if so, whether he would have persevered with such work until retirement. He notes that such work does not always suit everyone who tries it. The appropriate contingency adjustment may require to be different depending on whether the jury accepts that the pursuer would have found work offshore, when regard is had to Mr Cameron's observations. This makes the process of allowing for contingencies more difficult. Mr Lloyd acknowledged that the selection of adjustments for contingencies other than mortality was not straightforward in this case. Paragraph 36 of the Explanatory Notes advises that the adjustments in the Ogden Tables, 6^th edition, do not allow for different types of occupation, or geographical region as they previously did. There is no guidance as to what, if any, allowance should be made to the ready reckoners proposed in the tables to allow for variable contingencies. Mr Carter acknowledges at paragraph 1.3 of his report that the pursuer's case is complicated by the fact that, even without the injury, he would have faced redundancy and would have needed to find other employment.

[36] Accordingly it can be anticipated that there will be a real dispute as to the pursuer's likely earnings potential absent injury, so that identification of the multiplicand for that part of the exercise is not straightforward and the jury may be presented with two or more suggested figures with Ogden Table calculations based on them. Mr Lloyd acknowledged that a jury might not accept that the pursuer would have taken up and sustained offshore work and the Carter report suggests alternative figures for slightly lower wages for onshore work. The multiplier is also in dispute for this part of the exercise and Mr Lloyd conceded that contingencies may be difficult in this case.

[37] One of the most substantial areas of controversy relates to the pursuer's likely post-accident earnings potential. Parties are a long way apart on this and there will certainly be a dispute as to the appropriate multiplicand and multiplier. Whilst Mr Lloyd is proposing a ready reckoner discount factor of .28 from table B, he acknowledged that the jury may well consider that too low and may wish to select a higher discount. In the Explanatory Notes it is acknowledged at paragraph 32 that higher or lower adjustments may need to be made to ready reckoner adjustments. The jury are likely to be presented with competing Ogden calculations from either side. When Mr Carter reported in December 2010, the pursuer was not in paid employment and I was not told that the position had changed.

[38] According to Mr Lloyd, the pursuer will lead no evidence from an actuary or an accountant. Whilst Lord Emslie viewed actuarial evidence as a potentially complicating factor which may lead to confusion for a jury (at paragraph 21 in MacDonald), Lord McCluskey in Reid and Lady Paton in Graham envisaged that actuarial evidence would assist a jury to deal with the Ogden Tables.

[39] It is legitimate to bear in mind that, as Lord Emslie pointed out in the cases to which I was referred, a jury would not be given the Explanatory Notes, and in the context of particular uncertainty and complex calculations, that could be a substantial disadvantage in comparison with the way in which a judge in a proof could be assisted. In a proof, a judge would also have the benefit of detailed submissions on the evidence and could take time to consider them before reaching a decision. Whilst these observations could be made in all cases, they are particularly relevant in the context of the difficult and uncertain circumstances of the present case.

Decision

[40] I recognise that juries will often have to resolve disputed questions of fact about loss of earnings in the face of competing expert evidence and will be capable of doing so. I accept that the use of the Ogden Tables is not, of itself, a sufficient reason for refusing issues. In the particular circumstance of this case, however, despite Mr Lloyd's valiant efforts to persuade me otherwise, I have concluded that the assessment of future loss of earnings is a particularly difficult exercise which is likely to involve a multiplicity of complex calculations. Framing appropriate directions would necessarily be very difficult in these circumstances. However sound and helpful directions may turn out to be, the jury's task would be a particularly difficult one.

[41] Given that the pursuer was going to lose his job because of redundancy irrespective of his accident, it is not straightforward to determine his likely future earnings absent injury. The appropriate contingency adjustment may be different depending on whether the jury accepts that the pursuer would have found work offshore. It seems likely that split multipliers will be introduced whatever the present intentions of the pursuer's representatives.

[42] The pursuer is not presently in paid employment and he may not be by the time of trial. This makes the task of estimating his residual earning capacity difficult and without knowing the nature and security of his work, it may be more difficult to make an informed adjustment for contingencies. If at the time of trial the pursuer is still not in work, a jury would need to work out if and when he would be. Again it seems likely that split multipliers will feature.

[43] Having regard to all of the features of the case, I conclude that, in the particular circumstances of this case, the likely complexities bearing on the assessment of future loss render this an action where special cause is shown for withholding jury trial under the Court of Session Act 1988 section 9(b).

[44] Accordingly, I refuse the pursuer's motion for issues and allow parties a proof of their respective averments on Record.