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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muir v. Leitch [2003] ScotCS 193 (08 July 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/193.html Cite as: [2003] ScotCS 193 |
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OUTER HOUSE, COURT OF SESSION |
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A570/02
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OPINION OF LORD McEWAN in the cause SCOTT MUIR Pursuer; against RODERICK HECTOR LEITCH Defender:
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Pursuer: Patrick; Henderson Boyd Jackson,W.S.
Defender: Springham; Brechin Tindal Oatts
8 July 2003
[1] On 16 May 1999 Scott Muir was riding his motorcycle north on the A77 near to Lendalfoot. He saw sliding towards him the defender's car. It was on its roof. The inevitable high speed accident threw him on to the rocks on the seashore. He was very severely injured. [2] He now sues the defender in reparation and wishes a jury trial which is his right. The defenders resist that and say the case is unsuitable for jury trial. In summary they offer criticisms of the averments about wage loss and the claim for services. They say that individually or collectively these criticisms amount to special cause for withdrawing the case from jury trial. [3] I was referred to a number of authorities on both sides, viz. O'Malley v Multiflex 1997 SLT 362; Robertson v Smith 2000 SC 591; Johnston v Clark 1997 SLT 923; Graham v Paterson & Sons Ltd 1938 SC 119; Currie v Strathclyde Regional Council Fire Brigade 1999 SLT 62; Irvine v The Balmoral Hotel, unreported, Lord Gill, 3rd November 1998 and Stark v Ford No 2 1996 SLT 1329. [4] Before the argument proceeded in this case, the pursuer amended at the Bar on pages 10 and 11 of the Closed Record to make it clear at page 10B that the figures for pre-accident wages were net figures and to delete between A and C any claim for loss of pension. The amendment also made it clear that the claim for services related to the past and the tense was altered accordingly. Thereafter counsel for the defender argued in this way. She said that it was necessary for the pleadings to be clearly focused, relevant and specific and she referred me to O'Malley v Multiflex at p. 363G. She went on to say that the averments of wage loss were so complicated and unclear that there was a real risk of the jury misunderstanding how it was to be assessed and quantified. It was not said, for example, whether the pursuer was an employee or a self-employed person. Nor was it specified who were his employers, although the defenders were able to say in their answers who they were. Further, she argued that the pre-employment history was not specific. Turning to the question of multiplier Miss Springham said that there were no averments as to what age the pursuer would have worked. This might then complicate the multiplier and could lead to it being reduced. She also criticised why the wages had increased when they had earlier decreased. Passing then to the need for a multiplier, she referred me to the Ogden Tables, 4th Ed. Paragraph 32 and indicated that the Court would have to make a judgment about how to apply the tables. She referred me to Robertson v Smith.. Turning then to the claim for services, she said that both Section 8 and Section 9 of the Administration of Justice Act 1982 were involved. There was no specification of what tasks the pursuer did and the dates of who provided services to him were unclear. In the issue which would go before the jury, all of this would have to be specified and she referred me to Johnston v Clark at p. 925. In the present case there was no allocation possible between the three women and on this point alone the case was also unsuitable for jury trial. She invited me to allow a proof before answer. [5] For the pursuer Miss Patrick began by indicating that the pursuer had a statutory right to jury trial unless special cause existed and she referred to Graham v Paterson, particularly at p 124 and 127. Turning to the claim for wages, she said it was a straightforward and ordinary case. The pleadings were clear and relevant. There was only one pursuer, the accident was simple and liability was admitted. There was no question of contributory negligence, no pre-existing medical condition and no problems with causation or pensions. The form of issue to be put to the jury would be very simple. It would ask for solatium past and future, wage loss past and future and section 8 and section 9 services for the past only. In the present case fair notice had been given and there was no rebuttal in the defences. The wage loss was set out in clear terms with net figures. It gave his work and three years net earnings. It was of no importance who employed him or whether he was self-employed. That was all a matter of evidence and would be proved by wages records to be lodged. Here a pay range was given and his new earnings were also given. Accordingly to find the figures for wage loss for the past would be easy. As to future wage loss, it was also an easy matter to quantify. The multiplicand would be within the range given in the Ogden Tables together with the wage figure. The wage figure was of course calculated on the shortfall between what he would have earned and what he was presently earning. The case of Robertson was authority for the proposition that use of the Ogden Tables was not in itself special cause. Counsel pointed out that the facts in that case were not dissimilar to the present. In that case a wage was given and a multiplier was easy to find in view of the age of the pursuer. The same would apply here. The shortfall was known and easily calculable and an appropriate multiplier for his age could also be found. She continued that of course in every case there would always be uncertainties and there was no need to aver a retiral age. She referred me to Currie v Strathclyde Regional Fire Brigade, a decision of Lord Eassie at p. 64 and 65. She invited me to take the broad axe approach which commended itself to the Lord Ordinary in that case. Concluding with the claim for services, she agreed that it was a general claim under section 8 and section 9 and it was restricted to the past. In the present case it was a small part of the claim and there was no intention to lead a care expert. It was not necessary, counsel said, to give specific examples of what services were provided to him in normal household living or what domestic tasks he would have performed. She referred me to Irvine v The Balmoral Hotel, an unreported decision of Lord Gill and also to the case of Stark v Ford No 2. In that case no specification of hours worked was given for the services claim although it was there a substantial part of the claim. In the present case she said that a note on quantum had been exhibited to the defender's insurers showing that the claim was not large. It was perfectly clear that the services claims would have to be repaid to the three women specified and would have to be apportioned on a percentage basis among them. It was impossible to say that special cause existed in this case and the pursuer was entitled to his statutory right to jury trial. Issues should be allowed. [6] Let me now examine the cases cited to me. In O'Malley v Multiflex these were claims for continuing wages loss and loss of employablility. The problem was that no wages figures past, current or future were given. It was suggested that these details would be available at the date of the trial. The Lord Ordinary refused issues in part because these specified dates were absent. [7] In Johnston v Clark the averments disclosed many complications. The pursuer was a teacher injured in a road accident. Part of the claim was for future wages loss, loss of pension and disadvantages on the labour market. The Lord Ordinary was of the view that these matters alone made the case unsuitable for jury trial. There was also a complex multiple services claim and while Lord Cameron was of the view that it was not necessary to detail rates and times, the areas of uncertainty about the claim was an addition reason for refusing issues. [8] Stark v Ford (No 2) was again a road accident case. The matter is reported on the problem which arose on the services claim. The pursuer had been very severely injured and would require the continuing services of her parents. She was unable to specify the number of hours which would be needed. The Lord Ordinary having allowed jury trial, an Extra Division refused to intefere. Lord Clyde, agreeing with the Lord Ordinary, said that such a claim is often inherently non-specific and defies precise quantification. He agreed that a jury were in as good a position as a judge to assess it. [9] In Currie v Strathclyde Regional Council Fire Brigade a nurse was injured in a road accident. Among the heads of claim was one for services done by her husband. An hour a day was needed. There were also claims for past and future loss of earnings including early retirement and loss of promotion. Earnings figures were given. Lord Eassie, describing much of the criticism as "Linguistic quibbles" allowed issues. He indicated that some matters in the future could never be precisely specified but had to be evaluated on a broad axe basis which was plainly a jury matter. He added this (65I),"... In my judgment only limited assistance is to be gained from looking at other cases in which the questions of proof or jury trial may have been decided on particular averments. There is obviously a considerable borderline area which a judge, in the exercise of discretion, has to reach a view on the suitability or not of the case for hearing before a jury..."
