Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 16
PD2576/09	OPINION OF LORD STEWART in the cause GWENNETH ANN MCAFFERTY & OTHERS Pursuers; against SCOTT'S CARAVANS & OTHERS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: Milligan Q.C., Waugh, advocate; Digby Brown LLP

Defenders: Watson, solicitor advocate; Simpson & Marwick

27 January 2011

[1] This Chapter 43 Personal Injuries Action called By Order on 23 December 2010 when Mr Milligan QC, senior counsel for the pursuers, moved for issues to be allowed. The motion was opposed by Mr Watson, solicitor advocate for the defenders: he moved for a proof. Having heard parties submissions I allowed issues and refused the counter-motion. Mr Watson told me at the time that he did not wish me to write on the matter. I advised that if on reflection he should change his mind a request could be made through my clerk. A request for a written Opinion was subsequently received from the defenders' agents.

Defenders' submissions

[2] In a well-presented submission Mr Watson for the defenders argued under three heads that there was "special cause" in terms of the Court of Session Act 1988 ss 9 and 11 for refusing issues and withholding the case from a jury. Individually and collectively, he said, these arguments amounted to "special cause."

[3] Mr Watson accepted that the case was sufficiently relevant for enquiry. He read the record as amended, articles 4 and 5. In February 2007 the first pursuer and her husband stayed overnight in a caravan belonging to the first pursuer's brother. The caravan had a gas heater. The pursuer's husband lit the heater. During the night carbon monoxide from the flue of the heater re-entered the caravan. The first pursuer and her husband sustained carbon monoxide poisoning. The first pursuer's husband died and the first pursuer suffered injury. The first pursuer claims damages for her personal injury and for the death of her husband. The two sons and one daughter of the marriage claim damages for the death of their father.

[4] The claims are directed against the defenders in respect of their alleged fault at common law. The defenders sold the second-hand caravan to the first pursuer's brother. It is averred that the heater had not been properly installed in accordance with manufacturers' instructions; that the defenders represented that the caravan had been serviced and inspected; that the caravan had not been serviced and inspected or, if the caravan had been serviced and inspected, the inspection and service did not identify and correct the defect in the heater installation. A proper check would have identified that the air vent was too close to the heater flue outlet. The manufacturers' instructions specified that there should be no air vents within one metre of the flue. There was an air vent half a metre from the flue.

[5] The defenders do not admit that a representation was made about the caravan having been fully serviced and inspected. They do however aver that it was the invariable practice for their engineers to carry out an inspection of a caravan before agreeing to offer it for sale [on behalf of a third party] and that it was the invariable practice for their engineers to inspect a caravan again prior to completing the sale.

Special cause: technical complexity

[6] Mr Watson submitted that there would inevitably be complex engineering evidence in relation to: the operation of the gas heater; the manner of installation of the gas heater; the effect of the weather on the movement and build-up of carbon monoxide within the caravan; the carbon monoxide concentrations capable of being caused by the means averred.

[7] Mr Watson stated that the pursuers had so far lodged no technical material and that the Defenders had lodged substantial technical documentation recovered from Midlothian Council, Environmental Health Unit. He referred to the document "Corgi Services Limited Fatal Incident Investigation Report...Ref 07/0997/JG" prepared for the Health & Safety Executive, No 7/1/100-168 of Process, at page 110 paragraph 7.7 and page 111 paragraph 7.12. Paragraphs 7.7 and 7.12 of the report read as follows:

"7.7 I carried out a combustion analysis of the heater burner performance using an electronic combustion gas analyser...which proved unsatisfactory. The analysis readings fluctuated wildly between recorded values of 29.40% carbon monoxide (CO) and 0.4% carbon dioxide (CO₂) giving a ratio of 1.41 and 257.52% carbon monoxide (CO) and 1.9% carbon dioxide (CO₂) giving a ratio of 135.53.

[...]

7.12 The weather was poor during the investigation with gusting winds and we felt that this was causing the products of combustion to be blown away from the caravan. In an attempt to recreate the conditions similar to those at the time of the incident and lessen the effects of the wind we placed dust sheets to the rear and sides of the caravan to reduce the draught underneath it..."

[8] Mr Watson referred to a document "Comments on CORGI Report 07/0997/JG..." No 7/1/44-74 of Process, at page 49 § 7.12 and pages 56-57 §§ 9 and 10. I understood Mr Watson to say that that this document has been prepared for the Fatal Accident Inquiry. The passages referred to are in the following terms:

"7.12 I disagree significantly with the action taken here [placing dust sheets to the rear and side of the caravan.]...The action taken to shield off the rear half of the caravan with dust sheets will have, in my opinion, significantly affected the obtained results...Using dusts sheets fitted down to ground level will have given a totally false set of results...

[...]

9.2 I note the comment [had a proper check been carried out prior to sale it would have been identified that the air vent was too close to the heater flue outlet], but I observe that neither Mr Cichy nor Mr Ralph spotted the proximity of the air inlet during their first examination...

[...]

10.1 ...Basically this is saying that the heat output will be only just adequate to heat the caravan of these sizes in times of low temperature. This incident happened in February. The fact that the appliance was operating on butane (see 10.2) would exacerbate the effect.

10.2 There is no mention in the report of the physical properties of the gas in use, butane. This gas has a boiling point of -1^oC (30^oF). At or below that temperature the gas will fail to vaporise...at external temperatures of less than 10^o C, satisfactory service may not be possible with butane...If the cylinder was part empty then the most easily evaporated components will have boiled off leaving just the butane which may have been overcooled and not delivering enough gas to power the heater at its maximum rate..."

[9] Mr Watson referred finally in this connection to the Determination issued by Sheriff Peter Gillam on 25 March 2009 following the Fatal Accident Inquiry into the death of John Andrew McCafferty the first pursuer's husband. This is produced by the Defenders as Production No 7/1/26-38.

[10] As to the law, Mr Watson referred to Robertson v T & H S Smith Ltd 1962 SC 628 at 631-632 where Lord Strachan said:

"Counsel for the pursuer moved for jury trial, but, in my opinion, a jury trial would be wholly unsuitable in the circumstances of this case. For the reasons already indicated I regard the case as one of doubtful relevancy, and that by itself is sufficient 'special cause' for withholding the case from jury trial. In any event, I am definitely of the view that the technical and complicated nature of the issues involved in the case also constitutes special cause. Counsel for the pursuer maintained that the presence of difficult and complex questions of fact had never been held to be special cause for preferring proof to jury trial. In my opinion, that contention is stated too widely. I am not satisfied that the complexity of the facts has never been held to be special cause. The question must always be considered in the light of the circumstances of the particular case. In Walker v. Pitlochry Motor Co., 1930 S.C. 565, the first Lord President Clyde said (at p. 575): 'A special cause implies some specialty or other about the case or its circumstances, but the Court has always refrained from any attempt to lay down rules on the subject; nor is anything gained by pointing out that this or that general consideration will not be enough in itself to constitute special cause. Whether this or that special feature-or some combination of special features-amounts to special cause is a question to be determined, not by reference to any legal principle or category, but as a matter of sound discretion...' Applying that to the circumstances of the present case, I have no doubt that the technical and complex nature of the questions raised is special cause for allowing a proof."

Special cause: doubtful relevancy of averments of fault

[11] The averment of fault in article 11 of condescendence is in the simplest terms: "The accident was caused or materially contributed to by the fault of the defenders at common law."

[12] Mr Watson submitted that there were a number of difficulties with the averment: (1) the basis on which a duty was owed to these particular pursuers, who were not the purchasers of the caravan, was not set out; (2) the content of the duty was not set out, as to whether it was a "professional" duty or an ordinary "reasonable care" duty; (3) there would be difficulties in the leading of the evidence and in directing the jury. Mr Watson referred to the breach of duty averments in the illustration writ included in the Supplementary Report of the Working Party on Court of Session Procedure (2002) reproduced in the Parliament House Book, Vol 2, at C 352/ 14-15 paragraph 43.2.2. He drew my attention to the defenders' calls in this case for further specification in answer 11 including the call "to aver on record the basis on which [the pursuers] contend that it was reasonably foreseeable that breach of any such duties would cause loss, injury and damage to the pursuers."

[13] I was reminded that in a jury trial points about the admissibility of evidence cannot be reserved, that there is no opportunity before speeches to clarify the import of the evidence, that there is little scope for amendment and no scope for adjournment and that it is the well-settled rule that no case can be sent to the jury with issues of relevancy unresolved. Mr Watson referred to Higgins v DHL (International) Ltd 2003 SLT 1301, at §§ 22, 24-26, Lady Paton; Boyle v Glasgow Corporation 1949 SC 254 at 261 per Lord Justice-Clerk; Ramage v Scottish African Safari Park [2008] CSOH 68 at §§ 4, 19, Lord Mackay of Drumadoon. The latter case referred to the risk of "unheralded evidence as to the presence of particular breeds of animal at the departure point."

Special cause: averments of loss

[14] Mr Watson referred to the averments of loss for the first pursuer at articles 6.1 and 7.1 of condescendence. The first pursuer claimed solatium for bodily injury and consequential psychiatric injury, namely a depressive disorder. Separately she claimed for the loss of society of her husband in terms of the Damages (Scotland) Act 1976 as amended s 1 (4.)

[15] It was submitted that there was potential overlap as regards solatium for depression on the one hand and loss of society which included distress, anxiety, grief and sorrow on the other. There would be difficulty for a judge in instructing the jury and in ensuring that there was not double compensation. Reference was made to Bromham v Highland Regional Council 1997 SLT 1137. At 1139 Lady Cosgrove said:

"The question thus comes to be whether difficulties are likely to arise for a jury in understanding and separating in their minds these two issues of loss of society and post-traumatic stress disorder. A definition and explanation of each could undoubtedly be given to the jury, including the specific diagnostic criteria which the symptoms require to fulfil for the disorder. It is recognised however that cases of psychiatric illness raise questions of unusual difficulty for the court (Robertson v Forth Road Bridge Joint Board, 1996 SLT at p 264K). It is evident from the pleadings in the present case that the first pursuer did not actually witness the accident and it seems to me that questions may thus arise as to whether there exists a sufficient degree of proximity to the event in nearness in time for him to have a claim in respect of psychiatric illness. Further, I consider that the possible overlap between the two issues is likely, in a [1140] situation where there will clearly be a common thread linking them, to cause confusion in the minds of the jury for whom difficulties would be likely to arise in following and applying directions in relation to the distinction between concepts which are not particularly easy to understand. I am of the view that this potential difficulty is a consideration which renders this case unsuitable for jury trial."

Mr Watson conceded that a point of distinction in Bromham was that the pursuers whose claims were held to create difficulty sued as both primary and secondary victims. What Mr Watson relied on however was the risk created by overlapping heads of claim. In the case of Gillies v Lynch 2002 SLT 1420 Lord Macfadyen allowed issues where the pursuer claimed for psychiatric illness as part of the claim for loss of society under the same head namely the Damages (Scotland) Act as amended s 1(4).

Submissions for the Pursuers

[16] Mr Milligan QC, senior counsel for the pursuers, reminded me that the "special cause" for not allowing issues has to be special to the particular case. He submitted that the first pursuer's case on the merits was one of negligent failure by the defenders at common law to carry out a proper inspection and service. The defenders stated that they had carried out an inspection of the caravan; and the question was whether they had done so properly. If they had done so, they would have checked the heater installation and found that the installation had not been carried out properly.

[17] Under reference to the Practice Note No 2 of 2003 senior counsel continued that, if the defenders were genuinely concerned about matters of relevancy, they had the option of taking the case to debate. As regards specification, the Practice Note stated:

"...if the specification of the pursuers' case is criticised, details of the averments which ought to be made and which have not been made should be included in the grounds for the motion so that the pursuer may have an opportunity to consider whether to meet any such objections in advance of the hearing of the motion..."

Special cause: doubtful relevancy of averments of fault

[18] To say, as the defenders did, that "the basis on which a duty of care was owed to these particular pursuers was not set out" was "rubbish." The first pursuer and her husband were users of the caravan and a duty was owed to them as users. If there were a problem about whether the duty of care ought to be measured by a professional standard the defenders could take exception to the trial judge's directions.

[19] Under reference to Gillies v Lynch [supra] at § 11 senior counsel submitted that the defenders had not identified the doubtful issues of law to be determined after the evidence had been heard; nor had the defenders tested the relevancy of the pursuers' averments at debate.

Special cause: averments of loss

[20] Senior counsel submitted that it was accepted by the defenders that each of the first pursuer's heads of claim (1) depression and (2) loss of society in terms of the Damages (Scotland) Act 1976 s 1(4) as amended was relevant in itself. There must be many cases in which a relative, a husband or wife, for example, who is the surviving front seat passenger in a road traffic accident in which the other partner, the driver, has been killed, suffers losses under separate heads which could give rise to a risk of overlapping claims. The case of Bromham [supra] was to be distinguished: the claim for solatium for post-traumatic stress disorder [PTSD] by the first pursuer who did not actually witness the accident but was a secondary victim was itself a matter of doubtful relevancy.

Discussion
Special cause: technical complexity
[21] The claimed technical complexity arises in relation to causation. If the proposition about technical complexity were to be tested by reference to the pleadings alone - which I suspect is the correct way of applying the test - there could be no basis for saying that this is a technically complex case. Mr Watson sought to persuade me of the technical complexity of the case by referring to three productions. I was not persuaded that I could properly be satisfied as to special cause by reference to isolated passages selected, I expect for their apparent technical complexity, by Mr Watson. I was confident that if the particular passages selected by Mr Watson were to be put in evidence - and that was a matter of speculation - they would not be put in evidence in isolation. I was willing to test the matter on the assumption that the productions referred to by Mr Watson might be put in evidence to a substantial extent. I took the liberty of reading around the passages referred to by Mr Watson and also of reading the conclusions of both technical reports referred to by him. Clearly this has to be a matter of impression, but my impression was that this case falls well short of the degree of technical complexity that would make a case unsuitable for trial by a jury.

[22] Of course there are passages in the technical reports that refer to temperature measurements, percentages and ratios of gases, etc. But these things are not of the essence. Any reasonably competent counsel could take evidence from witnesses and put matters to the jury in a way that was readily intelligible. I respectfully suggest that no judge would have difficulty in directing a jury on these matters. The conclusion of both reports referred to by Mr Watson is that if the heater had been installed in accordance with manufacturers' instructions the likelihood of the incident happening would have been greatly reduced. In the Fatal Accident Inquiry determination referred to by Mr Watson, at 7/1/34, section 6(1)(c), para 2, which I have since read, the learned Sheriff put the matter categorically: "the deceased's death would have been avoided." I have glanced through the learned Sheriff's determination and do not see that he found it necessary, for the purposes of his determination, to refer to details of temperatures, percentages and ratios of gases.

[23] I have since confirmed that the defenders do not actually plead a defence based on the last matter of technical complexity referred to by Mr Watson, namely heat output of low-temperature butane and the speculation that because of the low heat output the pursuer and her husband must have been using another heat source to keep warm [No 7/1/44-74 of Process, at 56-57 § 10.]

Special cause: averments of fault

[24] As regards the basis of the duty of care alleged to have been owed by the defenders to the pursuers, Mr Watson put his point as if it were one of lack of specification: "the basis of the duty said to be owed is not set out." The defenders had not taken the step counselled by Practice Note No 2 of 2003, quoted above, of intimating details of the averments supposed to be missing. Arguably that course is to be taken only where a debate is sought: but the Practice Note also provides that a party opposing issues "will be expected to specify fully, in the notice of opposition, the grounds on which the motion is opposed", which, logically, ought to amount to the same thing. If Mr Watson meant that there was a matter of doubtful relevancy, in the proper sense of a question of law incapable of resolution until the facts are established, that is something that ought to be spelled out. The proposition is not a challenging one that the class that would foreseeably be harmed by the alleged want of care on the part of the defenders were occupiers of the caravan in ordinary course such as the first pursuer and her husband. If the defenders took a different view of the law, they should have asked to Court to send the case for debate on the Procedure Roll.

[25] I did not altogether understand how Mr Watson conceived that difficulties about the content of the duty of care might arise at trial. The pursuers simply do not have averments apt to instruct a case of professional negligence: Hunter v Hanley 1955 SC 200. (The approach adopted by the pursuers is supported by authority: see Kirkcaldy District Council v Household Manufacturing Ltd 1987 SLT 617, at 621-622.) If the pursuers were to attempt to lead evidence of the standard to be expected of a reasonably competent maintenance engineer, or whatever - a situation that is not foreshadowed by these pleadings - the defenders will be entitled to object. There is nothing particularly prejudicial or inexpedient about taking a well-founded objection in a civil jury trial.

[26] Beyond these matters Mr Watson did not specify any basis on which it might be foreseen that there would be difficulties in leading the evidence or in directing the jury in relation to fault.

Special cause: averments of loss

[27] If it were thought that Lady Cosgrove stated in Bromham [supra] that in no case where there is a risk of claims overlapping should a jury trial be allowed, I would respectfully disagree. But the issue in the present case is somewhat different. As Lord Macfadyen explained in Gillies [supra]

"[In Bromham] the problem was that there were two separate claims, founded on separate legal principles, which it was thought overlapped and would be difficult for a jury to keep separate in their minds. The risk, I think, was that a jury might take account of the same factors in quantifying both claims, and thus make awards which doubly compensated part of the loss."

[28] In the present case there is on averment no factual overlap - no "common thread" to use the language of Bromham - between the claim for depression, article 6.1, and the claim for loss of society, article 7.1. As regards the former it is averred in article 6.1:

"[The first pursuer] suffered carbon monoxide poisoning. She was rendered unconscious...The first pursuer developed coronary disease and angina as a result of acute carbon monoxide poisoning. She has also developed a Depressive Disorder (DSM IV diagnostic code 311) as a result of the accident."

To be relevant a claim for consequential psychiatric injury must specify a recognised pathology, as the first pursuer's claim does under reference to DSM IV. In context, the averment of depression must be read as Mr Watson submitted as a reference to the result or one of the results of the accident to the first pursuer herself.

[29] Separately the first pursuer has a claim in Article 7.1 under the Damages (Scotland) Act 1976 as amended for her non-patrimonial loss as the result of the death of her husband. The first pursuer avers that she "has been deprived of society of her husband." Both sides appeared to accept that this form of words is apt to include the usual or frequent concomitants of loss of a relative recognised by the statute, viz distress, anxiety, grief and sorrow: but there is clearly no claim for a consequential depressive disorder as a result of the death. Such a claim would have to be distinctly averred - and it is not [Gillies supra.]

[30] The perceived problem in Bromham as I understand it was that both the s 1(4) claim and the claim for PTSD had a common origin, presumably the claimants' experience of the death of the deceased. In relation to the s 1(4) claims the claimants were themselves primary victims; and in relation to the PTSD claims, the claimants were secondary victims. The first pursuer's claim as a secondary victim was of doubtful relevancy given that he did not actually witness the accident that had killed his wife [Bromham at 1139-1140]. It is entirely understandable in these circumstances that Lady Cosgrove should have been reluctant to send the case to a jury. Her ladyship also said: "It is recognised however that cases of psychiatric illness raise questions of unusual difficulty for the court." This was not a submission that Mr Watson advanced in relation to the instant case, and rightly so in my view. Since 1997 claims for consequential psychological trauma and psychiatric illness have become commonplace in personal injury cases and do not on the whole raise questions of "unusual" difficulty.

[31] I was not persuaded that there would be undue difficulty in directing the jury in relation to the first pursuer's claims in the instant case or that there would be a material risk of over-compensation.

Conclusion

[32] As explained, despite the well-presented submission from Mr Watson, I was left unpersuaded on the substance of the matter, namely that there was special cause for withholding the right to a jury trial. Parties did not make submissions in relation to the implications for the second, third and fourth pursuers. Had the matter been in the balance that is something I should have been bound to address because the "overlapping heads of claim" argument has no relevance to their cases.