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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Meldrum v Crolla [2001] ScotCS 91 (20 April 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/91.html Cite as: [2001] ScotCS 91

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[1] On 31 May 1994 the pursuer, then 38 years of age, who had been unemployed for a number of years, sustained injury in an accident while cycling. It is claimed by the defender that the pursuer's reaction to his injuries is inconsistent and inappropriate. The pursuer seeks to have his action tried by jury, as is his statutory right.

[2] The defender opposed Jury Trial originally on the ground that there were averments of doubtful relevancy relating to patrimonial loss and that there was a complex medical issue involved in the case. The relevance of the pursuer's averments about patrimonial loss were, justifiably, criticised in relation to certain matters of specification. However in the course of argument the pursuer sought leave, and was allowed to amend his pleadings in various respects which essentially removed the obvious difficulties.

[3] In a supplementary note of argument lodged just prior to the debate, the defender sought to raise an argument concerned with the requirement to a fair trial derived from Article 6 of the European Convention of Human Rights. At the time of the debate that matter was before the Inner House in Gunn v Newman, it has not yet been resolved, in that the Inner House have called for argument, if thought fit, from the Lord Advocate and the Advocate General. In these circumstances counsel wished a decision as to whether this cause would in any event be inappropriate for jury trial reserving the human rights point.

[4] It was agreed that there was no difficulty on the merits. Defender's counsel mounted his attack upon the averments about loss of employability and to a lesser extent the medical issue raised involving the intermingling of physical and psychological injury.

[5] In relation to the latter matter I was wholly unpersuaded that the medical issues were in the least complex. The issue is in my view whether the pursuer would be credible in relation to his alleged injuries - essentially a jury question.

[6] In relation to the averments about patrimonial loss, counsel for the pursuer explained that his case was based on loss of employability. There were no averments of pension loss, no services claim and the only issue for the jury would be whether the pursuer would have completed his training course and if so whether thereafter he would have obtained employment at or about the modest wage of £175 weekly. Counsel for the defender, taking his lead from O'Malley v Multiflex (UK) Inc. 1997 S.L.T. 362 sought to test the matter by posing the question of whether appropriate directions could be given to a jury in relation to a multiplicity of matters which might or might not arise. The jury he said would have to consider the pursuer's ability to complete his course; whether he would go on to the next stage which would be to obtain employment or an HND; at what stage he would get that; how long it would take him to find employment; and what type of employment he might obtain. His pre-accident employment history did not indicate that there was a straightforward answer to these questions. The defender's case was that this was a very minor injury and that it should have wholly resolved and accordingly that the pursuer could have obtained work by this stage had he been so motivated.

[7] Both counsel provided the Court with a plethora of examples from decided cases in which jury trial either was or was not allowed. I did not think this approach particularly profitable. Whether or not a particular case is unsuitable for jury trial is, essentially, a matter of discretion and how other Judges exercised their discretion in other circumstances, is of little assistance. Even the advent of the use of Ogdem Tables for calculating multipliers does not provide any universal rule for either withholding or allowing jury trial - Robertson v Smith 2000 S.L.T. 1012. The complexities inherent in any case require to be assessed and a view taken as to suitability for jury trial having regard to the ease or otherwise of directions.

[8] In the present case I could see, after amendment, no sufficient difficulty or complexity to justify withholding the cause from jury trial and, apart from the Human Rights argument, issues would be appropriate. The case will be put out By Order so that counsel may inform the Court of their submission about the future progress of this action.