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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Millar & Ors v. Watt & Ors [2004] ScotCS 47 (26 February 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/47.html Cite as: [2004] ScotCS 47, 2005 SCLR 143 |
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OUTER HOUSE, COURT OF SESSION |
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PD347/03
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OPINION OF LADY SMITH in the cause
CRAIG ANDREW MILLAR First Pursuer; MARY MARGARET MILLAR Second Pursuer; CRAIG ANDREW MILLAR Third Pursuer; CRAIG ANDREW MILLAR Fourth Pursuer;
against MARK ANTHONY WATT & OTHERS ________________ |
Pursuers & Third Party: Lamont; Morton Fraser
First Minuters: Cruickshank; HBM Sayers
Third Minuters: Thomson; Bishops
26 February 2004
Introduction
[1] On 18 April 2000, a road traffic accident occurred on the M8 motorway involving two cars. One car, a Rover, was driven by the first pursuer and the other car, a Renault, was driven by the defender. The second third and fourth pursuers are the first pursuer's wife and two children. They were passengers in the Rover. All the pursuers were injured in the accident. The first and second pursuers' six-month-old son was also a passenger but he died as a result of injuries sustained in the accident. Damages are sought in respect of the accident.[2] The defender was, following the accident, convicted of causing death by dangerous driving. Initially, it was not clear whether he was insured at the time of the accident. Accordingly, the action was intimated to the Motor Insurers Bureau, who are second minuters and to his insurers, who are first minuters. It appears that the position now is that the first minuters accept that they did insure the defender on 18 April 2000. However, they seek to blame the first pursuer for the accident and, to that end, have included averments against him in their answers and have served a third-party notice on him. Accordingly, the first pursuer and the third party are one and the same person.
[3] Following the service of the third-party notice, the first pursuer and third-party were separately represented. That was not, however, the position in the case when it called before me. All the pursuers and the third-party have the same representation. However, the first pursuer's insurers have entered the process as third minuters.
[4] The action was raised in the Court of Session on 11 April 2003. Accordingly, Chapter 43 of the Rules of the Court of Session, as substituted by Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002, S.S.I 2002 No.570, apply.
[5] The pursuers' Statement of Claim contains the following averments as regards the losses which are said to be attributable to the fault of the defender:
"COND.4. ... the first pursuer has suffered loss, injury and damage as an individual. He has suffered distress and grief at the death of the deceased and the manner in which it occurred. He has lost the deceased's society. In addition, the first pursuer has suffered loss, injury and damage. He suffered injury to his lumbo-sacral region. He was taken to the Royal Alexander (sic) Hospital, Paisley. He was found to be very tender over his lumbar-sacral region. Straight leg raising was found to be limited to 40 degrees bilaterally. Treatment was by way of bedrest, analgesia and a lumbar corset. He was discharged on 4 May 2000. The pursuer continues to have muscle spasm in his back. In addition, the pursuer has suffered and continues to suffer psychiatric injury as a result of the accident. His mood continued to be low in the aftermath of the accident. He has had suicidal thoughts. The first pursuer had attended Dr Deering, Ravenscraig Hospital, Greenock in this regard. Treatment has been by way of antidepressants. The pursuer has taken Diazepam, Mirtazepine, Flupenthixol, Trazodone and Zipiclone. The first pursuer has had difficulty sleeping. In addition, he has suffered wage loss as a result of the accident. Details will be produced. The pursuer was off work from 18 April 2000 to 5 June 2000. He lost wages in this regard. In addition, the first pursuer is contractually bound to repay payments made to him during his absence. Details will be produced. On his return to work the pursuer was unable to cope with his job as Deputy Bakery Manager and reverted to working as an ordinary baker. He suffers and will continue to suffer an ongoing in future loss of wages in this regard. ...
COND.5 Further, and in any event, the second pursuer has suffered loss, injury and damage. She suffered distress and grief at the death of the deceased and the manner in which it occurred. She has lost the deceased's society. In addition, the second pursuer was injured in the accident. She suffered soft tissue injuries to her head, neck, left upper arm and chest. She suffered pain in her elbow. She sustained a wound to her scalp and pain in her cervical spine. She was confused as a result of the head injury. Her neck muscles were found to be in marked spasm. Treatment was by way of Diazepam as a muscle relaxant. By examination on 2 June 2000 the second pursuer continued to complain of pain in her scalp wounds and pain in her neck and legs. By August 2000 the pursuer continued to attend physiotherapy in relation to her neck and leg pain. In addition, the second pursuer suffered and continues to suffer psychiatric injury as a result of the accident. By June 2000 pursuer continued to report anxiety and distress. She was irritable and her mood was low. In addition, she was very de-motivated with poor sleep pattern. Treatment was by way of antidepressants. She continues to suffer psychological injury. She remains emotionally vulnerable. She continues to receive treatment in this regard. In addition, the second pursuer has suffered wage loss as a result of the accident. She was due to return to work on 15 May 2000 following maternity leave. As a result of the accident she has not been able to return to work. She has lost and will continue in the future to lose wages in this regard ...".
Averments follow which are to the effect that both the third and fourth named pursuers have also suffered physical and psychological injury as a result of the accident.
[6] The case came before me on the pursuer's motion for a jury trial in terms of Rule 43.6(5)(c). The motion was opposed by the first minuters but, perhaps unusually for an insurer, acceded to by the third minuter, who made submissions specifically in support of the allowance of jury trial. It was accepted by counsel for the third minuters that their interest lay only in seeking to minimise the quantification of the second, third and fourth pursuers' claims for damages. Their approach was, however, to seek to pursue that objective by having the case put before a jury.
Submissions for the pursuers:
[7] Counsel for the pursuers submitted that special cause in terms of Sections 9 and 11 of the Court of Session Act 1988 for withholding the case from a jury did not, in this case, exist. Special cause required to be something that was special to the particular case (Walker v Pitlochry Motor Co 1930 SC 565; Graham v Paterson & Sons Ltd 1938 SC 119; Graham v Associated Electrical Industries Ltd 1968 SLT 81; Currie v Strathclyde Regional Council Fire Board 1998 Rep. LR 41). The existence of a third party was not likely to create confusion in the minds of the jury. As regards quantification, it did not raise difficult and complex issues. He referred not only to the pursuers' averments but also to the pursuers' statement of valuation of the claim and sought to demonstrate that was nothing unusual about it. In respect that there were two elements in the valuation namely share loss and pension loss which did not feature in the pleadings and were not, it was conceded, capable of exact assessment, these were, he submitted, exactly the types of claim which were best valued by juries (Stark v Ford No.2 1996 SLT 1329; Stewart v Nicoll 2003 SLT 843). Recognising that questions could arise as to whether the claim for damages for psychiatric injuries arising from the accident in a case in which there was also a claim for a grief and sorrow arising from bereavement, counsel made reference to two reports that had been lodged (6/17 and 6/18 of process ) of which Dr Martin Livingston, psychiatrist, was the author. They indicated, he said, that the accident was, in the case of both first and second pursuer, the precipitating factor in their psychiatric reaction.
Submissions for the third minuter:
[8] As I have indicated, the pursuers' motion for a jury trial was supported by counsel for the third minuter who, separately, raised the question of whether it was competent to consider the content of the documentary productions at the stage of determining whether further procedure should be by way of jury trial or not.
Submissions for the first minuter:
[9] Counsel for the first minuter submitted that special cause existed for withholding the case from a jury. He suggested, under reference to the case of Winchester v Ramsay 1966 SC 41 that, where there was a third party involved in an action, it might not even be necessary to show special cause. It did, however, exist in the present case, in two respects. Firstly, the presence of a third party who was in fact the same person as the first pursuer involved complication that was liable to be confusing to jury. Secondly, there were significant complexities involved in the quantification of the pursuer's claims. The first and second pursuer's claims for solatium overlapped with their claims under and in terms of Section 1 (4) of the Damages (Scotland) Act 1976 in a way that gave rise to a risk of double counting. Their wage loss claims whilst stated, in the pleadings, as arising from the injuries they sustained in the accident appeared, when the expert reports were considered, in fact to be attributable to other factors including their grief and distress at the death of their baby son. Significant causation issues arose and the first pursuer's claim for loss of share of value and the first and second pursuer's claims for pension loss added complexity and uncertainty to the case. Reference was also made to the case of Green v Chief Constable, Lothian and Borders Police and Another, unreported 14 November 2003 as an example of a case where special cause was found to exist where the pursuer was also the third party and there was a claim for both psychological injury and under section 1(4) of the 1976 Act.
Discussion
[10] Whether or not special cause exists for withholding a case from a jury depends on the particular facts and circumstances of the individual case. I accept that there is no rule that a case must be withheld from a jury simply because a pursuer claims both solatium in respect of psychiatric or psychological injury arising from the accident and damages under Section 1(4) of the 1976 Act in respect of the loss of a relative killed in the same accident. Such a circumstance does, though, add complexity and, in this case, it is not the only complexity with which a jury would have to contend.[11] The jury would be faced with an unusual situation where a single set of counsel would represent all pursuers in pursuing their claim against the defender and refuting the defender's case that the accident was caused through the fault of the first pursuer. They would be supported in that regard by the third minuters since, if the pursuers are successful in having the defender found 100% liable, no liability will attach to the third minuters.
[12] However, when it comes to the matter of quantum, some of the pursuers (the second third and fourth pursuers) and the third minuter will part company. That is because the third minuters have an interest to minimise the quantification of those three pursuers' claims. They do not, of course, have any interest to minimise the quantification of the first pursuer's claim. Whilst I do not agree that the mere presence, in an action, of a third party means that it should be withheld from a jury in the absence of special cause, the circumstances of the present case are bound to appear confusing to a jury.
[13] Turning then to the question of whether the claims for damages would be liable to appear complex and confusing, it is easy to say, as counsel did, that this is simply a family's claim for damages arising from a road traffic accident of a type regularly seen. But that does not mean to say that quantification will, necessary, be a straightforward matter. The first and second pursuers have, in addition to their own claims for damages arising out of their injuries, claims under Section 1(4) of the 1976 Act. I do not accept that, the pursuers' valuation having been lodged together with the expert reports relied on in support of it, it is not competent to look at those reports for the purposes of the present motion. As soon as that is done, the concern that immediately arises from reading the pleadings to the effect that it might be difficult to work out where the Section 1(4) ends and the claims for losses arising from these pursuers' own injuries begins , or vice versa , is exacerbated.
[14] Further, Dr Livingstone's reports indicate that the first and second pursuers' continuing depressive symptoms may well not be attributable to their own injuries but rather to their distress at the loss of their child and, in the first pursuer's case, to the burden of coping with the generally adverse effects on his wife and children, of the accident. In these circumstances, questions arise as to the true cause of the first and second pursuers' claims for loss of earnings. It appears possible that their absences from work and continuing inability to return to their pre-accident levels of employment could, for the most part, be attributable not to their own injuries or experience of being involved in the accident but to the loss of their child. The distinction is, of course, crucial, since no claim for loss of earnings could be advanced under Section 1(4) of the 1976 Act.
[15] It was also apparent from what was indicated in the course of the discussion on the motion roll that the first minuter will question whether the first pursuer's psychological or psychiatric problems can be attributed to the accident or, rather, to his own medical history and to the death of a relative and a work colleague. Further, questions will arise as to whether the changes in the nature of the first pursuer's employment were due to his injuries or due to tensions at home. Similarly, in respect of the second pursuer, questions would arise as to the effect on her of the death of her father since the accident and the effect of a pregnancy and birth that have occurred since then, together with anxieties arising from that baby's health problems.
[16] Further, it is impossible to ascertain either from the pleadings or from the pursuers' valuation and productions what the basis is for the first pursuer's claim for "loss of share arrangement". Nor is it possible to ascertain from any of these sources the basis of the first and second pursuers' claims for pension loss. In these circumstances, the possibility of the task of valuing these heads of claim involving difficulty, complexity or, perhaps, simply speculation, cannot be ruled out.
[17] There was some suggestion, in the course of the hearing, that complexities may appear to arise where they do not in fact exist because of the abbreviated nature of the pleadings, this being a case governed by the new rules. I do not, however, see that the new rules can be relied on, in this case, for having made a straightforward case appear complicated. The fact is that this case is not straightforward. There is a multiplicity of pursuers. One of the pursuers is also the third party. The insurer of one of the pursuers is a separate party with an interest to challenge three of the pursuers on the matter of quantum but not liability. The defender is not represented but his insurers are. The Motor Insurers Bureau have sisted themselves as second minuters but they were not represented at the motion hearing and it is not clear whether they intend to be represented in the course of further procedure in the case, although I would accept that it seems unlikely that they would require to do so now that the defender's insurers appear to have accepted that they insured him at the relevant time. Claims for damages under Section 1(4) of the 1976 Act are made together with claims for solatium for psychological or psychiatric injury in circumstances where such injury may in fact have been precipitated in whole or in part by the death which gives rise to the Section 1(4) claim. Claims are made for loss of earnings in circumstances where the working abilities concerned may have been compromised by factors other than those pursuer's own injuries. Heads of claim are advanced in the pursuer's valuation on an uncertain basis.
Conclusion
[18] When all of the above factors are taken together the case is, in my opinion, shown to be one in which special cause exists for withholding it from a jury. In these circumstances, I shall refuse the pursuer's motion for issues and allow a proof.
