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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCue Reid & Ors v BP Oil Grangemouth Refinery Ltd [2001] ScotCS 108 (8 May 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/108.html Cite as: [2001] ScotCS 108

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[1] In this case, the pursuers seek damages by way of reparation, following the death of John Farquhar Reid, who died on 12 January 2000 as a consequence of disease sustained in his work. The first named pursuer is his widow. The third and fourth named pursuers are the son and daughter of the deceased; they were aged 24 and 18 respectively at the date of his death. The fifth and sixth pursuers are the deceased's father and mother. The first pursuer and the second pursuer (the deceased's brother) also sue as executors of the deceased.

[2] For the purposes of the present action, the defenders admit that they are liable to make reparation to the pursuers. Only the quantum of damages remains in issue. The pursuers seek Issues. The defenders have a general plea to the relevancy of the averments of loss, injury and damage. The issue raised by the defenders is whether or not special cause exists for rendering the cause unsuitable for trial by jury.

[3] The relevant statutory provisions are contained in Sections 11 and 9(b) of the Court of Session Act 1998. These provisions require an action of damages for personal injuries to be remitted to probation for trial by jury unless "special cause" is shown. There was no issue between the parties as to what constitutes special cause. In that context reference was made to Taylor v Dumbarton Tramways 1918 S.C. (HL) 96 and to the opinion of the Lord Justice Clerk (Aitchison) in Graham v Patterson 1938 S.C. 119 at page 127, where his Lordship said,

[4] Mr Cullen, appearing for the defenders, submitted that the cause was unsuitable for trial by jury for several reasons, although he acknowledged that there was some degree of overlap between the separate points to be made. In the first place, it was clear that the Ogden Tables would require to be used for the computation of loss, given the circumstances pled in the present case. The application of the Ogden Tables, on the particular facts averred in this case, made the case unduly complex, not least because the tables would have to be applied to both to loss of support claims and to loss of services claims arising under different statutes and in relation to different pursuers with different types of claim. The methodology for applying the Ogden Tables in these various situations raised several distinct and complicated issues. It would be difficult for the jury to be given adequate directions to enable them to tackle the necessary tasks properly. Further, and in any event, it was claimed that the pursuers' loss of support claim, in so far as it was based on the expectation that the deceased would have acquired pension rights, itself raised issues that were too complex for a jury; they were not pled with sufficient specification and particularity to make them plainly relevant. The averments in such a case require to be precise, clear and accurate and to contain sufficient specification; no case could go to jury until all questions of relevancy had been disposed: Boyle v Glasgow Corporation 1949 S.C. 254 and Moore v Stephen 1954 S.C. 331. It was additionally submitted that the first pursuer's claim for loss of support prior to the expected date of retirement of the deceased was lacking in clarity and specification. Finally, reference was made to a number of particular averments which, it was suggested, remained of doubtful relevancy.

[5] Counsel began his more detailed submission by acknowledging that the defenders had contented themselves by making general denials. They were not advancing any substantial case of their own. This was acknowledged to be a factor that favoured the pursuer motion for Issues. Turning to the general matter of the approach to be taken to a motion for allowance of Issues when questions were likely to arise about the application to the computation of damages of the Ogden Tables, Mr Cullen drew the Court's attention to Robertson v Smith 2000 S.L.T. 1012, in which an Extra Division refused a reclaiming motion against the Lord Ordinary's allowance of Issues in a case in which it was plain that the Ogden Tables were to be founded upon for the purposes of computing damages. Although he acknowledged that that case had many similarities to the present case, (the similarities can be seen very clearly in paragraph [5] and [9] of the Court's opinion) there were also differences which, in counsel's submission, were materially significant. He could not and did not advance an argument to the effect that in any case in which it became necessary to apply the Ogden Tables or some variation thereof, the case would thereby be rendered unsuitable for trial by jury. However, he pointed to the fact that the present case was one involving claims arising out of a death; and, as far as he was aware, Issues had not yet been allowed in a fatal case. That factor made a significant difference between the present case and that of Robertson v Smith. Further, there was no claim for pension loss in Robertson v Smith as there was in the present case. He referred to a number of cases in the Outer House in which Issues had been allowed. They included Tait v Diamond Offshore Drilling (UK) Ltd, in which Lord Wheatley allowed Issues on 21 December 2000 and to Kennedy v Forrest-Jones in which the temporary Judge, Mr T.G. Coutts, refused Issues on 22 December 2000. He acknowledged, however, that in the latter case there were serious complexities in relation to the medical evidence which would have a complicating effect upon the computation of damages. These medical matters are summarised by the temporary Judge in paragraph [3] of the opinion. He did not submit, however, that these cases had any binding force in relation to the present case; for each case depended upon its own facts and special cause had to be special to the case under consideration. He laid strong emphasis on the contents of the HMSO document entitled "Personal Injury and Fatal Accident Cases (Fourth Edition)" containing the Ogden Tables and explanatory notes. He made reference to these notes from paragraph 50 on page 15 through to the conclusion of Section E on page 21 to illustrate that the application of the tables, particularly in fatal cases, required a series of several distinct steps to be taken. He showed that the multiplier which had to be derived from the tables in respect of some of the claims made by these pursuers would, in some cases, be different from the multiplier in respect of other claims; there would be different multipliers in respect of different groups of pursuers. In particular the multiplier for any Section 9 claim (the reference is to Section 9 of the Administration of Justice Act 1982).would have to be a whole life multiplier. Because the deceased had died at the age of 47 and was a person on high earnings, even the claims other than the widow's principal claim were potentially quite large, as could be illustrated by considering the sums sued for. It appeared very likely that actuarial evidence would have to be led in order to enables these claims to be evaluated. Furthermore, each head of claim might involve splitting up parts of the claim between the period from the date of death to t

Evidence would have to be led, Mr Cullen submitted, about the expected rate of return on investments, about possible growth in the salary of the deceased before he reached retirement age and about rates of inflation; and allowance would have to be made for the possibility that he, or indeed the pursuer, might have died before the deceased's 60^th birthday or that the deceased might have lost his job before that date. There were no detailed averments about these matters. He drew attention to Beggs v Motherwell Bridge Fabrication Ltd 1998 S.L.T. 1215 where the Lord Ordinary's treatment of a similar type of claim illustrated the difficulties and the type of evidence that would be required to compute claims of this sort. He also submitted that the pursuer made no averments whatsoever about the type of pension scheme or of the nature of the deceased's contribution to it or indeed about the performance of the funds in which the pension fund itself was invested. He did not pursue this line with any enthusiasm because he acknowledged that this was the defenders' own scheme; thus these matters were within their knowledge and that they could have made appropriate averments if they had thought that was the right thing to do. In this context he drew attention to Potts v MacNulty 200 S.L.T. 1269 and to the opinion of Lord Wheatley. However, under reference to the actual pleadings, I observe that there were no averments at all about the pension rights in that case, which makes a clear distinction between that case and the present one. Mr Cullen extended his submission to say that the law in relation to the allowance of Issues had been developed long before 1988 and that what had happened was that the decision in the House of Lords in Wells v Wells [1999] 1 A.C. 345, had altered the whole context in which the notion of "special cause" fell to be applied. The use of the Ogden Tables had effected a revolution, which made it appropriate to hold that special cause existed where there was likely to be special difficulty in applying Wells v Wells approach using the Ogden Tables. Next, counsel drew attention to the averments at the foot of page 16 and the top of page 17 to the effect that the first pursuer had previously been in employment and had ceased her employment in order to care for the deceased full-time. He submitted that there was a short point, namely that, having regard to what was averred there, it was not clearly stated that she would have continued to work had the deceased not been unable to work and required full-time care. This matter can be dealt with shortly. The first named pursuer's averment is that she ceased her employment "in order to be able to care for the deceased full-time". That is clearly sufficient notice of the position that she takes up. Counsel also submitted that in making a claim for loss of support, one needed to know what the first pursuer's earnings would have been so that all the material would be available to calculate the loss of support element. Again, I can deal with this matter shortly. There is nothing to prevent the defenders recovering records to show what the first pursuer's earnings were when she worked for Grampian Chickens prior to March 1999. The averment is plain to the effect that she has not earned anything since that time. All the material is therefore there or available to enable this matter to be properly put before the jury. It raises no point of any difficulty. The final branch of counsel's submission was to the effect that there were points of doubtful relevancy in the pleadings of the pursuers. He drew attention to the fact that the pursuers, in formulating their claims, had not used the precise words of the statute to articulate their claims but had used synonyms. He suggested that it would have been appropriate to use th

[6] Mr D.I. Mackay, for the pursuers, explained that the pursuers' right to a jury trial, unless cause particular to the case was shown, was statutory; the duty of the Court had not been changed by statute or otherwise following the decision in Wells. He described a number of the criticisms advanced by Mr Cullen as "linguistic quibbles", under reference to the opinion of Lord Eassie in Currie v Strathclyde Regional Council Fire Brigade 199 S.L.T. 62 at page 65C. He also referred to that case as authority for the proposition that where precise quantification was impossible, for example in relation to the loss of services claim, then a jury was a perfectly correct and appropriate instrument for determining the value of the claim. He took a general point to the effect that the main argument based upon the difficulties in applying the Ogden Tables was not an argument which was foreshadowed in the Note of Arguments which the defenders had lodged. The only reference in the Note of Arguments which gave any hint that such an argument might be advanced, was the final sentence of Note 1, which referred only to the loss of pension rights. If the Court regarded the points advanced as being of possible substance then it would be appropriate to put the case out By Order in order to allow the pursuer to address these submissions, of which no notice had been given. However, counsel was prepared to respond to the arguments advanced, albeit not foreshadowed in the Note of Arguments. He emphasised the decision in Robertson v Smith. What was of great importance was to recognise that the instant case was a perfectly ordinary case. This was a typical case in which a family man had lost his life as a result of fault on the part of the defenders and had left behind a widow, children and other members of the immediate family who had claims both of a solatium character and of patrimonial loss. There was nothing whatsoever unusual about this case. Any decision to the effect that the application of the Ogden Tables to this type of case would be too complex for a jury, would be a decision of a general character and it would be wholly at variance with the decision of the Extra Division in Robertson v Smith. He emphasised that the defenders had no averments to enable them to raise competing factual scenarios. He did not doubt that the Ogden Tables would be referred to in the course of the trial but the tables would not be "thrown into the jury room". The jury would be assisted by counsel and, possibly even by an actuary, to understand the tables and the judge would have a duty to direct the jury about the table or tables that might fall to be used in the different situations. The likelihood that the Ogden Tables, or some variation thereof, would require to be used could not be said to be special cause. The only difference between the present case and that of Robertson v Smith was that there were several pursuers in this case and that this was a fatal case. However, the fact that this was a fatal case simplified the approach in some respects; the death of the deceased removed some of the uncertainties. He referred to the other Outer House cases to illustrate that there would be little difficulty in applying the Ogden Tables provided the averments were sufficiently specific. Mr Mackay also referred to the passages in the HMSO publication of Actuarial Tables but submitted that they would be of considerable assistance to a trial judge to enable him to give appropriate directions to the jury. Furthermore, when one looked in detail at the application of Table D and Table E on pages 16 and 17, for example, one could see that they introduced no real complication and, if referred to, would make only the most marginal difference to the computation of any claim, having regard to the various ages of the

[7] In my opinion, the submissions for the pursuers are to be preferred to those of the defenders. Mr Cullen rightly acknowledged that the mere fact that a jury might be required to consider the application of Ogden Tables to the computation of any particular claim, whether with or without the assistance of an actuary, would not in itself constitute special cause within the meaning of the 1998 Act. I do not think that that concession could have been withheld, standing Robertson v Smith. It is abundantly clear that the family claims which are advanced in this action are entirely typical of the kind of claims that would fall to be advanced in respect of most fatal accidents or deaths from an industrial disease. The claimants are the widow, children and parents of the deceased. They are the members of the immediate family in terms of the 1976 Act. It is clear that each claim and each head of claim will have to be looked at separately. That, however, is a commonplace in claims by several pursuers following the death of a member of the immediate family, in circumstances where the surviving claimants have suffered some loss of financial support. It is also very striking that for decades in Scotland, juries have been computing damages with only the most general guidance from the Court as to how to calculate multipliers and multiplicands for the purposes of computing loss of financial support. The introduction of tables which can be explained by articulate experts may render the task of computing damages more technical but it hardly makes that task more difficult. It must have been more difficult for juries to make their assessment of damages when all they received was a series of injunctions from counsel, contradictory of each other, followed by guarded guidance from the judge instructing the jury to avoid "excessiveness" and "miserliness" and to attempt to award damages that were "reasonable". I see no great difficulty for jurors in following the evidence given by an actuary or an accountant about how the Ogden Tables would fall to be applied in different situations. After all in the criminal courts, juries are required every day to follow detailed evidence about forensic medicine or about forensic science or in relation to accounting practices or taxation laws in relation to fraud claims of various kinds. I do not understand why a jury in a civil case should be assumed to be less competent. No one would suggest that the jury be supplied with a copy of the HMSO publication to which reference has been made. They may be referred to more than one of the tables but only small parts of each table will be relevant and, in my view, the jury's tasks will be well within a jury's competence. It should not be assumed that juries are too ill-educated or too slow-witted to understand matters of this kind when they are explained by accountants, actuaries, advocates and judges in the course of an ordinary trial.

[8] I need not elaborate upon the arguments for the pursuer which I have found convincing and which I accept. As Mr Cullen acknowledged, the decision that I have to take depends partly on the impression I form as to the complexity of the claims. My clear impression is that this is a straightforward ordinary case in which the pleadings are both clear and clearly relevant. The claims, albeit there are several of them, are not difficult to understand or to explain. The basis of each is well set forth in the pleadings. I conclude that special cause within the well understood meaning of the statute has not been shown. In the circumstances, I shall repel the first plea-in-law for the defenders and allow Issues.