Scottish High Court of Justiciary Decisons

ROBERT ALEXANDER THAIN (ap) v. FISHER SERVICES (ABERFELDY) LIMITED [2001] ScotHC 106 (2nd October, 2001)

[1] In this case the pursuer seeks damages against the defenders for loss and damage sustained by him as a result of an accident which occurred on 2 June 1997 in the course of his employment with them as a van driver, when he sustained injury to his back while stacking bags of laundry in the back of his van. He avers that he has not worked since the date of the accident and claims damages in the form of solatium, loss of wages, and loss of pension rights and benefits.

[2] The case came before me on the Procedure Roll on the defenders' plea in law that the pursuer's averments in relation to loss of pension rights and benefits were irrelevant, et separatim lacking in specification, and should not be remitted to probation. The averments in question were as follows:

[3] In support of his plea, counsel for the defenders argued, firstly, that the pursuer was in effect seeking double damages in relation to pension loss. If he were to be successful in the action as pled, he would receive damages, not only in respect of loss of wages, but also for the loss of pension benefits which he would have purchased with those wages. There was no difference between the pursuer's position and that of a pursuer claiming damages for loss sustained through his inability to play the National Lottery because of a reduction in his income. In order to avoid this double counting, a pursuer claiming loss of pension benefits from an occupational pension scheme deducts his employees' contributions to the scheme from his wages before wage loss is calculated.

[4] Further, in the present case, the pursuer would be able to invest any damages he might receive and might obtain a better income than he would have obtained from his pension. It was necessary for the pursuer to aver that that was not so. Counsel accepted that in claims for loss of benefit from occupational pension schemes, it was not necessary to aver more than that the pursuer had lost pension benefits, leaving the calculation for the proof, but submitted that the present case related to a different situation, in which specification as to the precise nature of the loss was required. If the nature of the loss which the pursuer was seeking to recover was simply the loss of the tax advantages to be gained from investing in a private pension, it was necessary for him to aver that there were no other means of obtaining those advantages.

[5] Counsel for the defenders conceded that had the pursuer's averments related to an occupational pension scheme, they would have been sufficient to entitle him to a proof before answer as they stood, and in particular, would have been sufficient to entitle him to prove that his loss consisted of loss of tax advantages. I also understood him to accept that if the pursuer had averred that the nature of his loss was loss of tax advantages then he could not have maintained his plea.

[6] In response, counsel for the pursuer moved for the allowance of a proof before answer. He submitted that the tests in Jamieson v Jamieson 1952 SC (HL) 44 and Avery v Hew Park School for Boys 1949 SLT (Notes) 6 were not met and accordingly there was sufficient averment to enable to the defenders to meet the case put forward by the pursuer. The pursuer's claim for pension loss was analogous to a claim for loss of benefits from an occupational pension scheme. In such claims, in order to prevent double counting, the practice was to deduct employees' contributions from their earnings in calculating wage loss. The same would apply in the present case, but there was no need to make detailed averments to that effect.

[7] In relation to the defenders' argument that the pursuer ought to have averred that he could not have made up for or eliminated his loss by means of the prudent investment of any damages paid to him, counsel argued that that was a matter for proof, and it was for the defenders, not the pursuer, to raise the point and to make the appropriate averments. As it was, the defenders had been told the pursuer's date of birth, that he had been employed by the defenders, that he had not worked since the accident. They were also given details of the amount of his monthly premium, and the insurance company to which it was paid. In these circumstances the material required in order to answer the claim was already in the defenders' possession or could be readily recovered.

[8] Standing counsel for the defenders' concession that the pursuer's pleadings would have entitled him to a proof had they related to an occupational pension scheme, I consider that the averments under attack entitle the pursuer to a proof before answer of his pension loss. The defenders' arguments did not convince me that the test for relevancy in relation to a claim for loss of pension rights from a private pension scheme should necessarily be any different from that in relation to loss from an occupational pension scheme. Averments of pension loss, in most cases, involve the employment of actuaries on both sides. Advisers in that field would readily understand that loss of tax advantages might be a potential claim under this head. In these circumstances, I consider that by averring the nature of his pension arrangement, the company involved, and the premium payable, the pursuer has given sufficient information to enable the defenders to investigate and answer his claim. An indication of the method of calculation of loss of pension rights and benefit are not a matter for averment but a matter for evidence.

[9] I also accept the submission of counsel for the pursuer that it is for the defender to aver and prove that the pursuer could have eliminated any loss of this nature by the investment of any damages paid to him. So far as the defenders' comparison of the pursuer's claim to a claim for loss arising from inability to play the National Lottery is concerned, counsel for the pursuer rightly identified that point as involving questions of remoteness of damage. Since I was not addressed by counsel for the defenders on that area of law, no basis was provided for withholding the claim from proof. In any event, it would not, in my view, be reasonable to discriminate between contributors to private pension schemes and members of occupational pension schemes on the ground that loss of pension rights would be foreseeable in one case and not the other.

[10] Accordingly I shall repel the defenders' second plea-in-law and allow a proof.