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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Potts & Ors v McNulty [2000] ScotCS 102 (11 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/102.html Cite as: [2000] ScotCS 102

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In this case four pursuers have raised an action of damages against the defender in respect of injuries which they received in a road accident. The accident happened as long ago as 7 August 1995 and liability is admitted. The case has now come out for debate and the question of whether enquiry should be by way of proof before answer or jury trial.

The pursuers are all members of the same family and were on holiday in Scotland when the accident happened. The first pursuer, it is said, received extensive and very serious injuries which have in turn had extremely unpleasant consequences, including a premature menopause and psychological damage. She also claims loss of income from her subsequent inability to carry out her full-time and part-time employments, for personal services under sections 8 and 9 of the Administration of Justice Act 1982, and for various financial losses in respect of a number of detailed items. The second pursuer avers that he suffered injuries to both knees which have caused serious physical and psychological consequences. He was absent from work as a result of the accident and lost wages and pension entitlement. He also claims for financial loss in respect of the holiday, and travel and other expenses in respect of hospital visits. The defender avers that his medical condition is partly due to a pre-existing condition. The third pursuer, who is the first pursuer's mother and the second pursuer's wife, is also said to have suffered serious injuries which have had psychological consequences, and has also incurred various identified financial losses. Again in the answers the defender maintains that the third pursuer had serious medical problems prior to the accident. The fourth pursuer, who is the brother of the first pursuer, avers that he suffered physical and psychological injuries following the accident, and other financial loss.

The defender's counsel argued in general terms that the averments of loss and damage, both individually and cumulatively, and the interaction between them was so complex that the issues raised were unsuitable for a jury to consider. Secondly he submitted that the averments of loss and damage so lacked specification and were of such doubtful relevancy that they were unsuitable for a jury and enquiry should be by way of proof before answer. In the face of these submissions, the pursuers' counsel moved during the debate to delete a number of averments, which were as follows. The averments at page 17B of the Closed Record to the effect "She has also required the services of a child minder, details of which will be produced."; and at page 19E the averment on the last line to the effect "She lost the enjoyment of her holiday." should be deleted (I assume that the heading at item 8 at page 19D-E will also have to be adjusted accordingly). Similar averments relating to the other pursuers at page 22E, 25C-D and 26D-E were also deleted. Further, at page 22E the averment to the effect that "The second pursuer's clothing was damaged in the accident and details will be produced." and the averment at page 25A-B to the effect that "The pursuer has incurred travel expenses in attending for medical appointments, details of which will be produced." also were taken out.

The legal context within which these issues have to be considered were broadly agreed. Claims for personal injuries shall be tried by jury (Court of Session Act 1988, section 11) but a proof before answer may be allowed on special cause shown. Counsel for the defender referred to O'Malley v Multiflex (UK) Inc 1995 S.C.L.R. 1143, which suggested that where there was any confusion between competing heads of claim this will make pleadings of doubtful relevancy. Further, it was important that the pursuer's pleadings require to be clearly relevant and specific in all material points. It was clear that in terms of current practice the assessment of damages has become increasingly more complex and it was submitted that most cases are now simply unsuitable for jury trial. The inter-relation between claims under separate heads could be productive of great difficulty and complexity (Johnston v Clark 1997 S.L.T. 923). In terms of section 8(2) of the Administration of Justice Act 1982 an injured party has an obligation to account for any damages recovered and this will raise difficult issues for the jury. It has been held that complicated pre-accident conditions or medical arguments may be unsuitable for a jury (Meechan v McFarlane 1996 S.L.T. 208). Finally, it was submitted that there may be difficulties in respect of pension claims when complicated evidence has to be given by actuaries (as in Mitchell v Glenrothes Development Corporation 1991 S.L.T. 284) and complicated tables have to be applied. The particular difficulty that will arise in this case was that the jury will have to apply a different multiplier for the claims for injury, service and pension loss. The pursuers however placed reliance on the case of Currie v Strathclyde Regional Council Fire Brigade 1998 Greens Rep. L.R. 41 where it was held that the test of specification was whether the pleader has given fair notice to the other side of what he intends to prove, and the test is the same whether the case is to be heard by a judge or by a jury.

Against the background of case law, counsel for the defender argued that the present averments were too complex to be heard by a jury. For the range of conditions described by the four pursuers a significant number of medical expert witnesses would be required. The specification of the services which the pursuers claimed lacked sufficient detail and presented a risk of double counting. Item 6 on page 16 of the Closed Record was concerned with certain travel expenses which, it was said, lacked specification and were again of doubtful relevancy. In the schedule to which reference is made in the pleadings and which is again concerned with travelling expenses, items (d) and (f) and (i) suggest that the first pursuer's claim was that she had paid certain monies to other members of her family to take her to various hospital appointments. Defender's counsel suggested that this might again amount to double counting, as the recipients of these payments could also be the subject of claims for services. In item 8 of page 19 of the Closed Record, counsel said that he did not understand how the pursuers could claim for the loss of the value of their holiday which had been interrupted by the accident and for which they had apparently paid.

Again in respect of the second pursuer, various medical witnesses would be required. While the second pursuer's wage loss was properly pled, his loss of pension contributions and entitlement were not. Details had been promised in the pleadings (at page 22B-C) but these had not materialised. At page 22C the second pursuer's claim was that he had to stay in a hotel after the accident; this averment was either irrelevant, or lacked any specification if it was a head of damage. The answers made it clear that the second pursuer had a pre-existing degenerative changes to his knees which would complicate the question of causation for the jury.

The damages claimed for the third pursuer are described in Condescendence 6. Again it is averred by the pursuer that she stayed in a hotel, and the defender's counsel said this was either irrelevant as narrative or inspecific if it was a head of claim. A variety of medical experts would be required to establish the third pursuer's case. There were averments for the defender that the third pursuer had a pre-existing medical condition and this would make for difficulties for a proper assessment of damages attributed to the accident. For the fourth pursuer at least two doctors would be required, and again in general terms there is also a danger of overlapping claims. An examination of the schedule produced by the pursuers made it clear that there could be confusion in double counting of costs, which would make things difficult for a jury. It might be understandable that certain imprecise future claims could not be accurately stated at this stage (Stark v Ford No. 2 1996 S.L.T. 1329), but this was not the case here. Where there was a difficult question of mixed fact in law it was generally accepted that the case should normally go to proof (Sharp v Henderson, unreported, 6 August 1999). In the present case, there were a lot of complex medical claims and confusing averments in respect of the section 8 claims.

In response the pursuers' counsel submitted that the pursuers' position was quite straightforward, and that the pursuers' right to a jury trial should not be removed. The defender had not shown any special cause as to why there should not be a jury trial. The special cause had to be peculiar to the case in the question and the matter was one for the discretion of the court. The court's impression of what method of inquiry would be most suitable was also significant. Detailed descriptions of each claim had been provided with clear and precise averments and all material facts. The test of specification was whether fair notice is given and the same rules apply to cases equally whether they are heard before a judge or a jury (Currie v Strathclyde Regional Council Fire Brigade supra). In that case a jury trial had been allowed despite the fact that the pursuer could make only very general averments about future wage loss. The requirements of Johnston v Clark (supra) had been very much in mind when the schedule referred to in the pleadings was being drafted. The schedule contains precise numbers of hours and rates which the pursuer offers to prove, and which make it clear to the jury what exercise they had to undergo and which sections of the Act require to be applied. The distinction between personal services and payments to the first pursuer's mother and brother did not pose any question of confusion and would be well within a jury's comprehension if properly directed. As the claims in the schedule were based on hours per day they could not be simpler and the claims were neither mutually inconsistent or overlapping. The reference to Caroline Potts' travel expenses, it was accepted, should be under section 8 and the childminder details were not to hand, so these two items should be deleted. (No objection was taken to this.) The complaints about the lack of specification in respect of the second pursuer's pension were now irrelevant as the second pursuer had now retired and so his loss on his pension entitlement had resolved itself into a single simple figure. In all the circumstances special cause had not been demonstrated and the matter should be sent to trial by jury.

I conclude that the issue here is very narrow. I think it is true that a number of the defender's claims of lack of specification and opportunity for confusion were exaggerated and somewhat artificial. I do not think that a jury would necessarily be unsuitable to hear a case which involved many as opposed to few medical witnesses. The pursuers have now deleted all those minor claims where the promised specification has not been produced. I do not believe that there is necessarily any question of overlap or double counting on the pleadings and in the incorporated schedule. The plain reading of these averments seems to me to be entirely straightforward, and does not necessarily require to be interpreted as involving duplication. It is true that in the schedule the third pursuer claims that she required for a period to work four hours a day in respect of three separate claims for services. The obvious inference is that she was in fact spending most of the day looking after the other pursuers, and that does not to my mind necessarily suggest that all these claims must simply be doubled up. If they are, then no doubt this will be revealed in cross-examination and the matter can be simply explained to the jury. The attack on the pursuer's claim for loss of the cost of the holiday was simply stated as being of doubtful relevancy. However it is, in my view, plainly a direct and immediate loss following on the accident, and in the absence of particular authority I am not prepared to hold that it is not within the ambit of what is reasonably foreseeable as a consequence of an accident. Finally, I am satisfied that first pursuer has properly drawn a distinction between the services which she has had to accept from members of her family, for which she can claim but for which she must account in terms of section 8 of the Administration of Justice Act 1982 in due course on the one hand, and those payments described in the schedule that she says that she has had to make for chauffeuring and other services supplied by other members of her family on the other hand. The averment made by three of the pursuers that they had to stay in a hotel following the accident is clearly narrative and may be relevant insofar as it casts light on other elements of claim. No cost is attributed to the stay in the hotel. I therefore do not consider this averment can be described as irrelevant, as it may have a bearing on other claims and certainly cannot be a reason in itself for withholding a case from trial by jury. Finally, while the questions of causation in respect of the injuries of the second and third pursuer may be a matter of some difficulty, in the circumstances I am quite satisfied that should such difficulties arise then they could easily be resolved by either a judge or by a jury.

There are however two issues with which I have found some difficulty in considering whether to allow a jury trial. The first is the question of the second pursuer's pension. The averments on record do not square with the submissions made at the debate by the pursuer that the claim is now a simple calculation of loss. Even if that were so, there could be complex issues of calculation involving assessing what that loss is. No figures are given at this stage. But more importantly it does not seem that there is any specification of this claim, on whatever basis it is presented, in order for it to be considered in terms of our current practice and properly examined by jury. Secondly, I cannot find a satisfactory answer to the argument that the jury will have to apply different multipliers for the various injuries received by each of the pursuers, for the services claims, and possibly for the second pursuer's pension claims. I have therefore concluded with some considerable hesitation that special cause, albeit on a limited basis, has been shown that the cause is not suitable for jury trial. I should add that one of the principal reasons for my reluctance is that, in the circumstances of the present case at least, the rules seem to be balanced very much in favour of the defender, and the pursues would appear to have to clear considerably more hurdles in order to achieve their desired mode of enquiry. Certainly in the more serious cases, of which this emphatically appears to be one, it would seem desirable that some mechanism should be provided to allow for agreement of damages before this stage in the proceedings, as without such a device there appears to be at present a simple and almost guaranteed recipe available to the defenders to avoid a pursuer's right to trial by jury.

I shall therefore allow a proof before answer. I was not addressed on expenses.