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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGuire v. Morris & Spottiswood Ltd (t/a Ttarr (Roofing)) [2005] ScotCS CSOH_82 (24 June 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_82.html Cite as: [2005] ScotCS CSOH_82, [2005] CSOH 82 |
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McGuire v. Morris & Spottiswood Ltd (t/a Ttarr (Roofing)) [2005] ScotCS CSOH_82 (24 June 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 82 |
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A1193/02
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OPINION OF COLIN MacAULAY, QC (Sitting as a Temporary Judge) in the cause JOHN McGUIRE Pursuer; against MORRIS & SPOTTISWOOD LIMITED trading as TTARR (ROOFING) Defenders:
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Pursuer: Gardiner; Morton Fraser
Defenders: McSporran; Bishops
24 June 2005
[1] The pursuer in this action seeks reparation in respect of personal injuries suffered by him in the course of his employment with the defenders. The accident occurred on 10 May 1999. At that time the pursuer was aged 38. The sum sued for is £250,000. Liability is not disputed and the action is defended only on the quantum of damages. [2] The case came before me for discussion on the procedure roll on the defenders' motion. The defenders' second plea-in-law is in the following terms:-"The pursuer's averments of loss being of doubtful relevancy and creating difficulties for a judge in giving clear and adequate directions to a jury, there exists special cause for refusing issues and a Proof Before Answer should be allowed."
Consequently, the sole issue discussed before me was whether or not issues should be allowed. The defenders' first plea-in-law is a general plea to the relevancy.
Pleadings
[3] The admitted circumstances of the accident are that on the day of the accident the pursuer was working as a labourer for the defenders at Kings Park School, Glasgow. The defenders were carrying out work on the roof of the school. The school roof was on two levels. The pursuer was part of a team engaged in transporting tar from the school playground to the second level of the roof. A pulley was being used to hoist the tar from the playground to the first level of the roof and thereafter a wheelbarrow was used to transport the tar to a point where it could be hauled up by the use of a bucket and rope to the second level of the roof. [4] The pursuer avers that he was in the process of pulling a bucket of tar when he twisted round to look towards his foreman. He avers that as he twisted round he felt a pain in his back. Because a fellow workman was in the vicinity directly below the bucket, the pursuer could not let go of the rope. Although these averments are covered by a general denial, the defenders admit for the purposes of the action that they are liable to make reparation to the pursuer. [5] In Articles 7 to 10 the pursuer sets out his averments of loss. He avers that as a result of the accident he suffered a prolapsed disc and required to undergo a right lumbar 4/5 microdisectomy. This is countered by the defenders contending that the pursuer had degenerative disc disease and that the disc prolapse would have occurred in any event. He avers he cannot carry out any heavy lifting and that he suffers from backache. The pursuer also avers that he has developed depression as a result of the accident. He contends that he has been diagnosed as suffering from a major depressive disorder. The defenders respond by alleging that the pursuer had a long history of alcohol and drug abuse and that his psychological problems were not precipitated by the accident but by the death of his father-in-law in 1997. [6] The pursuer avers that he has not been fit for work since the accident, and that the continuation of his physical and psychological problems constitute a handicap in the labour market which will make it difficult for him to find work. The pursuer also makes a claim for services in terms of Section 8 of the Administration of Justice Act 1982.Submissions for Defenders
[7] Mr McSporran explained at the outset that the issues raised at the debate centred upon the pursuer's averments of loss at Articles 7 to 10 and the defenders' answers thereto. [8] In opening his submissions Mr McSporran began with what he described as a short relevancy point. He drew attention to the averments in Article 10 and the reference in the last sentence to Section 8 of the Administration of Justice Act 1982. His point was that some of the averments bore to relate to a claim under Section 9 of that Act and not Section 8 but there was no reference to Section 9. Mr Gardiner in his submissions plainly saw the force in that and sought to amend by adding after the word "chores" where it appears in the first line on page 12 the words "The pursuer seeks compensation for personal services in terms of Section 9 of the Administration of Justice Act 1982." Subject to the question of expenses, Mr McSporran did not oppose that proposed amendment. A similar situation arose in relation to Mr McSporran's criticism of the use of the words "next three years" where they appear at page 12A-B. Mr Gardiner sought leave to amend by deleting those words and substituting "until 2007". Again Mr McSporran did not oppose that amendment under reservation to the position on expenses. Finally, Mr Gardiner sought leave to amend by deleting the words "within the next year" where they appear at 11B-C, and to substitute "in 2004". This also was to meet a point made by Mr McSporran in relation to a lack of clarity with the averments. Mr McSporran did not oppose this proposed amendment, again under reservation to the question of expenses. I allowed the amendments. [9] In relation to the remainder of his submissions, Mr McSporran's position was that special cause existed to make this case unsuitable for trial by jury. He adopted the list of points set out in the Second Note of Arguments for the defenders. These points focus on the differing stances taken by the parties on Record to the cause or causes of the pursuer's medical conditions, and the impact on damages. [10] His argument was that although some heads alone, or even two or three heads together of the list set out in the Note of Arguments might be insufficient, the full list constituted special cause. The essence of his argument was that the pleadings disclosed that there were a number of different outcomes in this case depending upon the conclusion arrived at in relation to the medical evidence. He drew attention to the pursuer's averments at 11B-C to the effect that the pursuer's position was that it was the combination of physical and psychological problems that constituted a handicap for the pursuer in the labour market and which would make it difficult for him to find employment. The defenders were putting in issue the degenerative condition of the Pursuer's back pre-accident and also his pre-accident psychological difficulties. Consequently, he argued that a jury may very well be faced with a number of different alternatives which would cause difficulties for them particularly in relation to the assessment of damages. Furthermore, he argued that a judge may well have difficulty in giving a jury directions on a number of different hypotheses and how each hypothesis might have an impact on quantum. His motion was that his second plea-in-law should be sustained and the case sent to a proof before answer.Submissions for Defenders
[11] Mr Gardiner clearly saw the force of Mr McSporran's attack on the relevancy of certain aspects of his pleadings but he countered that attack by making the amendments discussed at paragraph [6]. He met Mr McSporran's general attack by submitting that no special cause existed to justify withdrawing this case from jury trial. He submitted that the medical controversies raised by the opposing stances taken in the pleadings were entirely appropriate matters for a jury to adjudicate upon. He contended that whatever conclusions they arrived at on the medical issues would not cause any real difficulties when it came to the issue of assessing quantum. He submitted that it was not at all unusual to find in such cases as this physical and psychological components being involved and different options being possible. A jury was perfectly capable of dealing with such issues. In the course of his submissions Mr Gardiner referred to Gardiner v A B Fleming & Company Limited 1969 SLT 93; Potts v McNulty 2000 SLT 1269 and Cronie v Craig,) 25 June 2004 (Unreported).Decision
[12] I am not satisfied that the issues that may arise in this case renders this case unsuitable for jury trial. There is substantial controversy on Record as to the cause of the pursuer's physical and psychological problems but it seems to me that the sort of disputed issues raised in the pleadings are well within the province of a properly directed jury. Nor do I see that such a jury would have any real difficulty in deciding what impact any decisions arrived at on the medical issues raised may have on the quantification of the pursuer's loss. If, for example, the jury were to agree with the defenders' contention that the pursuer's disc prolapse would have occurred in any event, then that decision will provide the springboard for their conclusion as to what actual loss the pursuer has suffered as a consequence of the accident. Furthermore, I do not foresee that a judge in directing a jury will encounter any particular difficulty in explaining what the consequences might be on damages depending upon what conclusions they arrive at. Judges are well used to directing juries on different hypotheses and their consequences.Conclusion
[13] I shall repel the first and second pleas-in-law for the defenders and allow issues. In the meantime, I shall reserve the question of expenses.
