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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCormack v CSC Forest Products Ltd [2001] ScotCS 244 (1 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/244.html Cite as: [2001] ScotCS 244

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[1] This cause appeared before me at Procedure Roll on 1 November 2001. The court heard a fairly brief argument unencumbered by much authority on the question of whether special cause existed for withholding the case from jury trial. Despite some amendment in the course of the hearing by the pursuer in order to attempt to deal with the criticisms made of his case as pled, I determined that special cause existed whereby the case was unsuitable for jury trial.

[2] Since the pursuer has enrolled a reclaiming motion against that interlocutor it is necessary for me to explain my reasoning at greater length than I did at the end of the debate.

[3] The pursuer's claim is in respect of the serious physical injuries he suffered when crushed between a load of chipboard on a forklift truck driven by an employee of the defenders, and other stacks of chipboard in the defenders' premises. Counsel for the defenders pointed to the various cases which had been pled both at common law and under statute in that regard as affording reasons which, when added to the complexities of the damages claim, rendered the cause unsuitable for jury trial. Although pursuer's counsel, in argument, attempted to say that his case was little more than an ordinary running down case with a contributory negligence defence, he has not chosen so to plead it. Had his case merely been that the driver of the truck failed to keep it under proper control and to keep a proper look out, with that case being met by averments of contributory fault on the part of the pursuer, there would have been a traditional jury trial situation. However, instead of that simple and readily comprehended issue, the pursuer has chosen to plead in the first instance a direct case of negligence against the defenders alleging variously a faulty system of work, failure to give appropriate instructions and failing to enforce such instructions and it would appear also, failure to provide sufficient employees in that it is suggested that there might have been a person appointed to guide the driver to his appropriate destination and to see to it that he did not run into other people. In addition to the several strands of common law fault comprised in Condescendence 3, the pursuer goes on to plead two cases under statutory regulations. The first of these is that there was a failure by the defenders to ensure that the forklift truck was used only for operations for which, and under conditions for which, it was suitable. That failure was said to be the carrying of three stacks of chipboard on a truck or, perhaps, not driving in a forward direction with such a load upon it. The other statutory case which is pled alleges a failure in organisation of the workplace.

[4] Thus a case which might on one view appear to have been capable of simple presentation, has been rendered complicated by the pursuer's own pleadings. They would require the presiding judge to consider and direct the jury upon all the above multiple and various grounds of fault. In addition, because there is a case against the pursuer of contributory negligence, the effect of the pursuer's own negligence might vary if the jury found proved one or other or both of the statutory cases against the defender and whether it thought that the defenders were personally, as well as vicariously liable.

[5] The damages claimed are under the heading of physical and psychological injury, i.e. averments of post traumatic stress disorder. The pursuer pleads that he is permanently unable to return to work. He avers also that he is afraid of returning to work with the defenders and of driving a forklift truck. He says that as a result of his physical et separatim psychological condition (sic), he is permanently unfit for work. It appeared to me that as was argued by the defenders there was complexity there which could prove troublesome in relation to the direction of a jury. They would have to consider whether it was one or other or both of these factors which rendered the pursuer permanently unfit for work, or, whether one might render the pursuer unfit for some kinds of work and whether the other was relevant at all in relation to work which could be done.

[6] Counsel for the defenders attacked the specification of the pursuer's pleadings in relation to his alleged loss of earnings, the effect of an alleged reduction in pension contributions and the averment about loss of pension benefits. He pointed to an apparent contradiction in the pleadings in that there was an averment that the pursuer had lost and would continue to lose wages, but also an averment that his employment with the defenders will require to be terminated on the ground of ill-health. There is certainly no specification of the pursuer's precise loss. He has chosen to plead a gross annual salary instead of a specific loss of earnings. It was not clear, said the defenders, what the loss of pension benefits was, whether the sum was a total sum or an estimate of a reduced pension or an annual deficiency in the pursuer's subsequent pension.

[7] To the obvious riposte that the defenders were the employers of the pursuer and therefore well able to know and understand what his earnings were and so what his losses might be, it was stated that the pension arrangements and benefits were not matters which were administered by the defenders.

[8] With regard to the loss of earnings claim, while I agreed with the pursuer that the defenders should know what his wages had been, I can see no reason or excuse for a proper net figure of loss of earnings not being pled. A gross wage, so far as a jury is concerned, is not a relevant matter. There is, moreover, no averment about what wages the pursuer has actually lost and it is unclear on the pleadings whether and, if so, to what extent he has received remuneration from the defenders or otherwise after the accident. I would not however have regarded that infelicity of pleading to have been sufficient reason in itself to withhold the cause from jury trial.

[9] However, the patrimonial element in the claim is further complicated by there being averments which have been summarised as "the pursuer claims in respect of said services in terms of sections 8 and 9 of the Administration of Justice Act 1982". Such a formulation fails to distinguish between the two statutory claims. In respect of a claim under section 8, the sum involved is not any loss of the pursuer's, it requires to be accounted for. In the absence, as here, of any appropriate rate being suggested for such services which would be considered as appropriate by the provider thereof, there is an unnecessary area of speculation. It has been said not infrequently that it is for the claimer to provide sufficient material upon which the claim could be based - Forsyth's curator bonis v Govan Shipbuilders Ltd 1988 S.L.T. 321. In Clark v Chief Constable, Lothians and Borders Police 1993 S.L.T. 1299 the Inner House, correcting the approach of the judge in the Outer House, stated that they agreed with the observations made in Forsyth's curator bonis. They went on to say that "the effect of a failure to lead precise evidence is not altogether to exclude considerations of claim but to restrict the court's assessment to an amount, if any, which represents the minimum that can reasonably be inferred as appropriate on the basis of such evidence as there is." In the context of a proof that might cause some, but not an insuperable, difficulty. In the context of a jury trial, however, it is difficult to see what evidence could be led as to quantification in the absence of any averment whatsoever. It should be noted that the approach of the Inner House in Clark meant that had there not been a concession about a reasonable rate by counsel for the reclaimers, they would not have been able to sustain any award at all. That Inner House authority is, and remains, binding upon me until it has been reconsidered.

[10] A further difficulty in relation to the section 9 claim which was made, is that while some part of it is past expenditure, part of it is a potential future lack of services rendered and also potential future expenditure.

[11] The application of the Ogden Tables will require to be considered and a jury would require to be instructed about them in relation to certain parts of the section 9 claim so far as it was established and, also, of course in relation to the loss of earnings claim of the pursuer once the appropriate multiplicand for each was determined. In these circumstances, argued counsel for the defenders, the restricted and restrictive observations in the final paragraphs of Robertson v Smith 2000 S.L.T. 591, where the matter of an Ogden Table calculation being put to a jury was considered, does not assist the pursuer in this case.

[12] In coming to the view which I did I bore in mind the observations of the Inner House in Graham v Paterson & Son 1938 S.C. 119, especially Lord Justice Clerk Aitchison at p.127 and also those in Graham v Associated Electrical Industries Ltd 1968 S.L.T. 81 at 82. The view of Lord Mackay in Graham v Paterson & Son at p.129, quoting from Walker v Pitlochry Motor Company 1930 S.C. 565 at 575, was:

[13] I have said on other occasions in debates of this kind, citations of examples whereby this or that Lord Ordinary has or has not considered that there was special cause shown in the case before him or her, do little to advance the argument. I conceive that the duty of the Lord Ordinary to look at the facts as pled and the case as pled in the particular case, and to determine, as best as can be done, whether he considers that special cause has been made out.

[14] I thought that it was made out in this instance because of the number of cases and considerations advanced on the merits in what could have been a simple issue and in light of the lack of specification on important matters in the damages condescendence, with the interlocking complexity of physical and psychological injury, as pled, plus the difficulty in relation to the intermingled section 8 and 9 claims and the future claims which require reference to Ogden Tables. If a pursuer wished a simple issue to be directed to the jury, then a case should be pled so as to concentrate on specific and important matters. The matter for example of whether the pursuer required to "purchase slippers, a dressing gown, pyjamas and toiletries" when in hospital, and whether had he not been in hospital he would have done any of these things anyway, is a trivial item to be argued before a jury and one which would waste time and I consider, have the effect of distracting a jury from the important matters of the pursuer's physical and psychological injuries. It was, in the whole circumstances that I regarded this cause as being more appropriately determined by way of a proof and that special cause had been established.