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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 52
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A466/03
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OPINION OF J GORDON
REID Q.C., F.C.I.Arb
(sitting as a
Temporary Judge)
in the cause
COLIN ANNANDALE
Pursuer;
against
SANTA FE
INTERNATIONAL SERVICES INC
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Forsyth; Anderson Strathern, W.S.
Defenders: Laing; Paull & Williamsons
29 March 2006
Introduction
[1] The pursuer sues for damages suffered in
February 2000 in an accident while working offshore in the course of his
employment with the defenders on the Beatrice Alpha oil platform. Liability is admitted. Contributory negligence is not pled. The pursuer suffered serious head
injuries. He claims damages of
ฃ1,000,000 and seeks a jury trial. The
defenders offer a proof before answer.
There were two defenders but the second defenders were assoilzied by
agreement at an earlier stage in the proceedings.
[2] On Procedure Roll, the defenders argued that
there was special cause for withholding the case from trial by jury. The discussion concerned the alleged
complexities of the pursuer's injuries, the medical issues arising therefrom,
the consequent financial claims, and whether the combination of all these
issues constituted special cause.
The
pleadings
[3] Counsel focused their attention on the
averments relating to damages, set out in Article 6 of the Closed Record (as
further amended as at 24 February 2006).
In summary, the pursuer avers that he suffered (1) a severe head injury,
(2) multiple facial fractures, lacerations and nerve damage, (3) Post Traumatic
Stress Syndrome; mood swings, temper outbursts, anxiety attacks, and
depression, (4) brain damage, including loss of cognitive function, memory and
concentration, (5) an injury to his left eye which has resulted in double
vision; he also avers that he required surgery to rectify a converget squint
which had developed as a result of his injuries, (6) neck pain, headaches and
migraine, (7) hearing loss in the left ear, and (8) the loss of various
amenities. The foregoing largely follows
counsel for the defenders' summary of the pursuer's injuries which he outlined
in the course of his submissions. The
pursuer makes various averments of past and future wage loss. He avers that he is no longer able to work
offshore, which, but for the accident he would have done until the age of about
55-60. He claims he would have been
promoted. He states that his injuries
restrict the range of employment, if any, open to him. He had no formal or academic
qualifications. He has, since his
accident, attempted to obtain some, but his cognitive difficulties have
prevented him from doing so other than at HNC level. He also claims loss of pension rights and
makes lengthy averments in support of "services" claims under sections 8 and 9
of the Administration of Justice Act 1982.
[4] In response, the defenders aver inter
alia that (1) the pursuer had a childhood squint, (2) he was dyslexic at
school and this has had and will continue to have an effect on his education,
(3) the pursuer suffered from pre-accident hearing loss, and (4) he suffered a
depressive illness about four years before the accident. The defenders also make various averments
about courses which the pursuer has attended since his accident. They aver that
the pursuer did not disclose, upon applying to Oatridge
College, Broxburn, any cognitive,
emotional or behavioural difficulties.
They also aver that, on examination by a clinical psychologist in 2004,
the pursuer's demonstrated cognitive difficulties were inconsistent with the
effects of traumatic brain injury. These
averments are met with a general denial by the pursuer. What the defenders do not do in the pleadings
is link the relevance of these somewhat disparate averments to the claims being
made by the pursuer, in spite of a call on record to do so (19E-20A).
Issues
for Decision
[5] The broad issue, as put by the defenders
in their Supplementary Note of Arguments, is whether the interplay between the
pursuer's pre-existing conditions and his physical disabilities arising out of
the accident are of such complexity, that they would create difficulties which
could not be resolved satisfactorily by a jury.
It is said that an accumulation of complex issues would arise for the
jury's consideration involving directions on causation and remoteness; and that
the cumulative effect of all these complexities rendered the action unsuitable
for trial by jury. A further question
arose as to whether the pursuer's failure to respond to the defenders'
averments fell to be taken into account in considering these issues. It was not argued that any part of the
pursuer's pleadings was of doubtful relevancy.
There are thus no outstanding issues of relevancy.
Decision
[6] The pursuer has a statutory right to
have his action tried by jury unless special cause is shown (Court of Session
Act 1988 sections 9(b) and 11(a); M'Keown v Sir Wm Arrol & Co 1974 SC 97 at 101). The onus lies on the defender to show special
cause. What constitutes special cause
will vary with the facts and circumstances of each case. However, from the authorities cited to me the
following general guidance emerges:-
(1)
Special cause means some real
ground of substance making the case unsuitable for jury trial. Hypothetical difficulties or general
considerations will not do (Graham v Paterson & Son 1938 SC 119 at 127). (2)
The severity of injuries sustained does not per se amount to
special cause (Hadjucki, Civil Jury Trials, 1998, para 2-20). (3)
The likelihood of conflicting medical opinion on causation is not a
special cause (Miller v
Clarke Chapman & Co 1952 SLT (Notes) 26 at 27 col 2; McKenna v Sharp 1998 SC 297 at
304A, & E). (4) The leading of technical and complex medical
evidence will not of itself make the case unsuitable for jury trial unless it
will raise a medical question of such novelty or uncertainty that the jury are
unlikely to understand it (Irvine v
Balmoral Hotel Ltd 1999 Rep LR 99 at para 8-20;
Graham v Dryden 2002 Rep LR 104 at para 2; Livingston v Fife Council 2004 SLT
161at 163G-J; Stewart v Nicholl 2003 SLT 843 para 9); the mere possibility of some complex medical
matter arising does not amount to special cause (McAllister v Strathclyde Regional Council 26th
November 1992 1993 GWD 1-65, Temporary Judge RG McEwan Q.C.). (5)
Difficulty in ascertaining a pursuer's financial position is not special
cause; (Irvine at para 8-25, 8-26) nor is the need for a jury to
consider more than one multiplier, or pension loss per se special cause
(Graham v Dryden 2002 Rep LR
104 at para 24; Stewart at paras 10-14). (6)
The fact that a pursuer has a pre-existing medical condition, or
disability or susceptibility does not constitute special cause (McKenna at
304E, Graham at 125-6;Toner paras 16-18, McAllister
page 1, Irvine para
8-19). (7) The need to direct a jury on different
hypotheses and their consequences does not constitute special cause (McGuire
v Morris & Spottiswood Ltd 24 June 2005, unreported,
Temporary Judge Colin MacAulay Q.C. para 12, Graham v Dryden paras 19-20).
(8) The number of questions which a jury requires to answer is
not relevant; the complexity of the questions and the confusion which they
might create in a jury's mind is a relevant consideration (M'Keown at page
102). (9) Disputes and issues
which frequently arise time and again in personal injury claims are unlikely to
constitute special cause (M'Keown at page 103).
[7] The foregoing is but general
guidance. The facts and circumstances of
each case must be considered.
Nevertheless, an examination of the facts and circumstances of some of
the cases cited indicate that the argument presented by counsel for the
defenders on the pleadings in the present case is a difficult one to
sustain. Thus, in Graham, a
nervous shock case the pursuer suffered from a pre-existing complaint which
would have had a material effect on the assessment of damages (1938 SC at pages
125 and 126); a jury trial was allowed albeit under the special verdict
procedure. In McAllister, the
pursuer, who sustained an injury to her back, had a pre-existing medical
history of back pain (page 1); issues were allowed. In Miller, the court rejected
as special cause the question of the cause of a hernia which the pursuer
developed following his return to work after an accident. In Toner, a professional negligence
claim against a dentist, it was held that the fact that there would be evidence
about the pursuer's genetic predisposition and its effect, would not make the
case unsuitable for a jury (at para 17).
[8] In McKenna, the pursuer
had two serious accidents within a short space of time and sued for the
consequences of the second; the argument that the question which accident
caused the pursuer's head injuries would involve complex neurological evidence
and difficult questions of assessment of loss and thus constituted special
cause were rejected. In Irvine,
the pursuer's injuries included a post-traumatic disorder. There were averments that she had suffered a
similar disorder several years before the accident, although parties' position
on record seems to have been clear-cut.
Issues were allowed.
[9] In Graham v Dryden the pleadings disclosed a medical dispute as to
the cause of the pursuer's continuing pain and suffering (para 7); it was
argued that, as there were several elements of future loss, it would be
difficult to charge the jury on the various multipliers involved (para 11 and
12); it was also argued that the combination of complex medical issues, the
multipliers involved and the various contingencies and possibilities that would
have to be considered by the jury constituted special cause. Issues were allowed. In McGuire, there was a
substantial controversy on record as to the cause of the pursuer's physical and
psychological complaints (para 12); this was held to be well within the
province of a jury. In Stewart v Nicholl 2003 SLT 843, the
pursuer averred a variety of medical conditions said to have been caused by
injuries suffered in a road accident for which she claimed damages in an action
in which liability was admitted. In
allowing Issues, Lord McEwan rejected arguments based on complexity of medical
issues, holding that the medical issues all stemmed from the pursuer's head
injury (para 9); the complexities of the pursuer's post-accident working
life could easily be dealt with by directions to the jury by the trial judge
(para 10); future loss calculations would not present any significant
difficulties for a jury even although there would be various uncertainties
which would have to be reflected by a reduced multiplier (paras 12-13).
[10] In Elwis v Consignia 16th June 2004, Lord Reed, unreported, which
counsel for the pursuer criticised as having been wrongly decided, the
pursuer's case was that as a result of a road accident, in which liability was
admitted, he had to leave his job which involved heavy manual work; he took up
other jobs some of which involved lighter work, and administrative duties for
which he was unsuited because of pre-existing dyslexia. His Lordship concluded that there were a
number of respects in which the interplay between the dyslexia and the physical
injury caused by the accident might complicate the assessment of damages,
requiring a jury to be given directions bearing on causation and possibly other
legal issues (such as remoteness of damage and mitigation of loss); the court's
conclusion was that it was possible that the pre-existing disability (depending
on how the evidence emerged) would give rise to issues which were too complex
to be resolved satisfactorily by a jury; while that could not be predicted with
certainty at this stage, those circumstances made it appropriate to allow a
proof before answer (see last paragraph of Opinion). There appears to have been little citation of
authority in Elwis; in particular, apart from Graham v Dryden, which his Lordship
did not consider, and may not have been addressed, in detail, none of the
authorities referred to above was before the Court in Elwis. The decision was given ex tempore on
conclusion of the procedure roll discussion.
A written judgment was produced following the marking of a reclaiming
motion. However, no further opinion
seems to have been issued by the court.
[11] Perhaps
recognising the weight of the authorities, counsel for the defenders accepted
at the outset that technical or complex medical evidence was not sufficient to
constitute special cause and did not suggest that any of the medical issues in
the present case was either singly or in combination, novel. It was the cumulative effect of the various
circumstances on which he relied. In
support of the "complexity" argument, he drew my attention to the combination
of injuries (set out above) and their impact on solatium, wage loss, promotion
prospects, disadvantage on the labour market; the effect of the pursuer's pre
existing-conditions; the need for many medical expert witnesses in different
disciplines, and the multiplicity of possible situations. However, these points all raise questions of
fact which apply to many claims and are not in any sense special to this
action. I cannot identify anything in
the pleadings in the present case which requires or even entitles me to follow
a different course procedurally from most of the cases cited. I agree with counsel for the pursuer's
submission that the disputes on the medical issues disclosed in the pleadings,
whether considered individually or in combination with one, or more or all of
the other medical issues, raise classic issues of causation which juries have
considered for decades without difficulty.
I also agree that each medical issue does not appear, in itself, to be
particularly complex. Counsel for the
pursuer submitted that the reality was that there were only three areas in
which the medical evidence might be in conflict, namely in relation to (i) the
extent of brain injury and any loss of cognitive function (16D, 22D), (ii) the
injury to the pursuer's left eye, (16D-E), 21B-C), and (iii) the pursuer's
hearing loss (17A, 21C-E). Even if that
is too narrow a view of the medical issues in the pleadings, the pleadings do
not disclose anything novel or so uncertain as to be beyond the capability of a
properly directed jury, whose intelligence should not be under-estimated (M'Keown
at page 102 ). The jury will also
have the benefit of hearing not only the evidence but also the opening and
closing speeches of counsel and the judge's charge. Ultimately, the jury's task in the present
case, as counsel for the pursuer submitted, is essentially to consider (a) what
would have happened but for the accident, and (b) what will happen now as a
result of it. The pursuer's pre-existing
dyslexic condition and his longstanding tendency to a left convergent squint
arising from childhood, founded on as complicating features by the defenders,
only arise under (b). However, as
previously noted, a pre-existing condition is a common
feature in the assessment of damages in personal injury cases and is not, of
itself or in combination with the other features of this case, sufficient to
constitute special cause.
[12] In Forrest v Gourlay 2003 SLT 738, much relied upon by counsel for
the defenders, the pursuer, who was injured in a road accident, averred that as
a result he suffered epilepsy (at 739D).
The defenders averred that the pursuer sustained a mild head injury and
that it was improbable that such an injury was the cause of the epilepsy (at
739F-G). They averred that other
considerations unrelated to the accident were relevant to a diagnosis of
epilepsy, and specified these linking them with a pre-accident incident
involving the pursuer (739H). The
defender's averments were met with a general denial. The Temporary Lord Ordinary seemed to take
the view that the pursuer's case had not been properly pled and had the pursuer
done so the issues for determination would have been limited (at 740E-F). The Temporary Lord Ordinary concluded that
the pursuer's failure to plead the case properly would lead to uncertainty
necessitating the formulation of many directions to the jury about what appears
to be a "multiplicity of possible situations" which he then specified (at
740F). Proof was therefore
allowed. Counsel for the defenders,
before me, submitted that the pursuer's mere general denial of the defenders'
averments summarised in paragraph 4 above coupled with the other complexities
should lead to the same result. Counsel
for the pursuer, on the other hand, submitted that the general denial, if
anything, simplified matters.
[13] In my opinion, whatever may have been the
appropriate inference to be drawn from the pleadings in Forrest, in the
present case, I do not consider that the pursuer's general denial of certain of
the defenders' averments prejudices his right to a jury trial. In the first place, I do not agree that the
pursuer's case has not been "properly pled".
A general denial, while often unhelpful, cannot, in the present context,
be said to be improper. It will likely
limit the scope of the evidence that may be led on behalf of the pursuer. In the second place, a detailed response
might have made the issues more complex; and no doubt counsel for the defenders
would have founded on that as a ground for withholding the cause from a
jury. In the third place, the
multiplicity of situations envisaged by the court in Forrest were largely
if not exclusively, factual. Whatever
the complexity of those "situations" in Forrest may have been, the
various factual issues in the present case, when considered individually or
cumulatively, are not complex and are not special to this case. A pre-existing disposition leading to
disadvantage on the labour market, or having some other possible effect on
causation and/or quantification of damages is quite common and is not, by any
means, special to the present case. Forrest
may be contrasted with Livingston v Fife Council 2004 SLT 161 where issues were allowed in
a claim for damages for solatium (liability was admitted) for sexual abuse,
said to have occurred between 1960 and 1967, where there were averments of
psychiatric injury and a pre-existing psychological condition.
[14] Counsel for the defenders, in response to
my enquiry, also drew attention to MacInnes v Owen, Unreported 24 November 2004, Temporary Judge Colin Macaulay
Q.C. which contains the only subsequent reference to Forrest. There, the pursuer suffered what appeared
to be a modest back injury in a road accident.
Liability was admitted. Parties
made detailed averments about the pursuer's injuries and medical history
presumably because the pursuer averred that he was, as a result of the
accident, confined to a wheelchair; the defender's lengthy averments were, in
the main, met by a general denial (para 3). The defenders argued inter alia that
there were difficult questions of medical and legal causation, and relied on Forrest. Although issues were refused on other
grounds, these arguments were rejected (para 10) as were arguments that
claims for past and future loss of earnings and services raised complex issues;
such heads of claim were not materially different from the nature of such heads
of claim in many reparation actions (para 16). The same point can be made in the present
case, in relation to the pursuer's inability to resume his pre-accident work,
his loss of promotion prospects, his fitness or otherwise for work, the
restricted range of employment open to him, and his pre-existing disabilities
or conditions. These are all issues
which individually and in combination frequently feature in actions for damages
for personal injuries. Insofar as the
approach in MacInnes is different from the approach in Forrest, I
consider that the approach in MacInnes is to be preferred as being
consistent with the general thrust of almost all the other authorities referred
to above.
[15] In the foregoing circumstances, I am not
satisfied that the issues raised in the pleadings are such as to make the
action unsuitable for trial by jury.
Special cause has not, in my opinion, been established.
Disposal
[16] I shall repel the defenders' first
plea-in-law and allow Issues. It was
agreed that, if I were to allow Issues, the defenders' second and third
pleas-in-law should also be repelled. I
shall do so, reserving meantime, all questions of expenses.
