Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 57
PD1004/11	OPINION OF J BECKETT, Q.C., (Sitting as a Temporary Judge) in the cause KAREN KORDAKIS Pursuer; against THE NATIONAL INSURANCE AND GUARANTEE CORPORATION LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Forsyth, Advocate; Andersons

Defenders: Peden, Solicitor-Advocate; Brodies

30 March 2012

Introduction

[1] This action for damages for personal injuries came before me on the motion roll. The motion made on behalf of the pursuer by Mr Forsyth, Advocate, was to allow issues. The motion was opposed on behalf of the defenders, by Mr Peden, Solicitor-Advocate, who acknowledged that this was an enumerated cause and that the effect of the Court of Session Act 1988 sections 11 and 9(b) was that it would be for him to show special cause for a proof to be allowed. I was addressed first for the defenders and then for the pursuer on the Record as amended, No. 11 of process.

[2] The pursuer, who works as a medical secretary, seeks damages for personal injuries sustained by her in a road traffic accident on 11 July 2008 involving a collision between a motor cycle on which she was a pillion passenger and a motor vehicle the driver of which was insured by the defenders. Liability is admitted. The pursuer's claim for damages includes a head of claim for future loss of earnings because of probable long term consequences of the injuries which she sustained which included fractures to bones in her right ankle, right foot, left wrist and left leg. This head of claim is substantially disputed by the defenders and formed the principal focus of the argument before me which mostly related to the likely application of the Ogden Tables, 7^th Edition.

[3] At the outset of the hearing, a number of procedural matters were dealt with. The most significant for present purposes was the deletion, on the pursuer's motion, of four sentences at 11D-E of the Record in which it had been averred that the pursuer had intended to train in medicine or a related profession, which opportunity had been lost.

Submissions for the defenders

[4] Mr Peden's argument was that special cause was shown for withholding jury trial because the calculation of future wage loss would be dependent on a range of variables such that a multiplicity of calculations would be required and the probable application of the Ogden Tables, 7^th Edition, would involve particular complexity in the circumstances of this case. With reference to Walker v Pitlochry Motor Company 1930 SC 565, he acknowledged that the decision as to whether special cause was made out by virtue of a combination of features involved an exercise of discretion by the court. He conceded that the mere fact that a jury may have to apply the Ogden Tables was not special cause of itself.

[5] Mr Peden referred me to certain averments in the amended Record which set out the central dispute. It is averred for the pursuer in statement 5:

"...The pursuer is at significant risk of post-traumatic arthritis of the left knee joint. It is likely that the pursuer will no longer be able to carry out her duties in her current sedentary employment from around September 2016..."

It is narrated that she was able to return to work, subject to various intervals, after her accident. In statement 6 it is averred:

"...In any event the pursuer's ability to continue in her current sedentary occupation is precarious after 2016. Due to recession and the pursuer's risk of post traumatic arthritis of the left knee joint it is likely that once she leaves her employment as a medical secretary she will be unable to find further employment. The pursuer's retirement age is 66..."

Mr Peden also pointed out that the claim includes loss of pension rights, but he did not amplify that point. The defenders aver in answer 5 that:

"...The pursuer will be able to continue to work as a medical secretary or similar type employment until her normal retirement age..."

[6] Mr Peden submitted that the proposed calculation in the Statement of Valuation of claim was far simpler than that which would require to be carried out by the jury. The Statement of Valuation was based on Table 28 which was the wrong table and tables 10 and 12 were more appropriate. Since the pursuer was averring that she would retire at the age of 66, rather than 65 or 70 which would allow a straight lift from tables 10 or 12, the jury would have to carry out the six point calculation explained at paragraphs 13 and 14 of the Explanatory Notes to the Tables. He submitted that this was a relatively complex calculation which requires to be done in order to ascertain the correct multiplier when the retirement age does not match one in the tables.

[7] The question of contingencies would pose particular problems in this case. The jury would require to apply table C or D depending on whether they accepted that she was disabled. Since it is averred that the pursuer intended to retire at 66, the jury would only have the benefit of tables based on the age of 65 for men and 60 for women.

[8] There would need to be evidence on the question of whether the pursuer is or is not disabled. In No. 6/18 of process, Mr Young, Consultant Orthopaedic Surgeon, offers the opinion that the pursuer is disabled with her current level of disability being moderate.

[9] It could be anticipated that there will be argument as to whether the pursuer will be fit to work after the age of 48, which she avers she will not be. It may be that the jury would require to consider other types of employment which may be open to the pursuer. There may need to be calculations relating to the pursuer's residual earning capacity to be offset against the future loss of wages which she claims. Reference in the Record to the academic qualifications of the pursuer tended to suggest that even after she cannot work as a medical secretary, she would be able to find other work which may be such as to require the jury to apply split multipliers. The complexity of split multipliers could be seen in example 1 at paragraph 23 of the Explanatory Notes. Mr Peden confirmed that there was no report from an employment expert in process.

[10] Mr Peden accepted that whether special cause was shown depended on the particular facts and circumstances of the case, but he submitted that the court might find support for his contentions in three cases: Slessor v Vetco Gray UK Ltd 2007 Rep LR 83, particularly at paragraphs 16 and 24 and MacDonald v Mallan [2008] CSOH 1, particularly at paragraph 20, both opinions of Lord Emslie and my own opinion in Lewendon v International Paper (UK) Limited [2011] CSOH 116. Mr Peden addressed me in some detail on the first two cases.

[11] Even though Lord Emslie identified other difficulties in Slessor, the complex application of the Ogden Tables to assess future wage loss was a material part of his reasoning which was apt to the present case. In MacDonald, whilst Lord Emslie recognised that the possible application of the Ogden Tables did not of itself amount to special cause, if they fell to be applied in a sufficiently complex way, it might make the case unsuitable for jury trial.

[12] In the present case the particular complexities were that

i) several parts of the tables would require to be applied;

ii) contingencies would require to be taken into account;

iii) a suggested retirement age of 66 introduced a separate complex calculation;

iv) given that the pursuer had pled her academic qualifications, split multipliers may have to be applied as there may be a likelihood that she would argue that she had a career path in which her salary would increase;

v) the possibility of residual earning capacity to which he had already referred;

vi) the pursuer's averment that recession may impact on her employment prospects was a further complication.

[13] In combination this would present a jury with a multitude of issues and very complex mathematical and actuarial calculations of future wage loss. Loss of pension rights should also be considered.

[14] In a further submission in response to the pursuer's submissions, Mr Peden argued that Robertson v Smith 2000 SC 591, on which Mr Forsyth had founded, had involved a simpler calculation using the simpler third edition of the Ogden Tables and was materially different to this case. The averments were such that it could not be ruled out that there would be an issue as to future earnings after 2016.

Submissions for the pursuer

[15] Mr Forsyth submitted that there was little complexity special to this case to single it out from the large number of personal injury cases which involve future loss of employment. It should be borne in mind that a jury would be assisted by speeches and directions, and in this case by an actuary who would give evidence about pension loss who would be able to assist the jury in relation to the Ogden Tables so that the six step calculation referred to by Mr Peden would not present any real difficulty.

[16] Mr Forsyth submitted that the defenders had misread the pleadings and foresaw complications in relation to future wage loss which were not there.

[17] There was no question of split multipliers because the pursuer was not averring that she would work in some enhanced or reduced capacity in the future, the position which she offered to prove was that from the age of 48 she would not be able to work at all and until that time she will remain in the same employment. Whether she could prove this was a question for the jury. Post amendment, the averments about her qualifications were not included in order to set up an alternative career, however they did have some relevance as her level of educational attainment required to be identified so that the correct approach to contingencies could be identified.

[18] Mr Forsyth accepted the criticism which had been made of his Statement of Valuation and he produced a new calculation with a view to showing that there was no undue difficulty in this case. No objection was taken to this course.

[19] The first question for the jury would be selecting the correct multiplier and he submitted that the fact that the retirement age was 66 and not 65 or 60 will recur frequently with employees of a certain age and could not be regarded as being special to the cause. The special cause to be shown must be a cause special to the particular case being tried, not a class of cases generally. In his new calculation, Mr Forsyth had picked a value of 13.5 as the correct multiplier for illustrative purposes. It was half way between the figures in table 10 for women aged 48 to 65 and table 12 for women aged 53-70. The jury could do this also. An actuary would be giving evidence about pension loss and could assist the jury by suggesting a multiplier as was envisaged in paragraph 7 of the Explanatory Notes to the Ogden Tables. Accordingly, identifying the correct multiplier was relatively simple.

[20] When it came to selecting contingency, the jury would use table C. Table D was not relevant because there was no question of residual earning capacity. The pursuer offers to prove that she would have no residual earning capacity, and the defenders offered to prove that she would not lose her full earning capacity and indeed could work normally until retirement. In his new calculation, Mr Forsyth had selected a discount figure for contingencies based on a woman in the age bracket 45-49 and he had selected the value of .85, but on reflection he submitted that it should be .87, noting that the pursuer would come in the highest category of educational attainment, category D.

[21] The next step would be very simple as the multiplicand was established by the pursuer's wage statements lodged as No. 6/19 of process.

[22] Finally, when it came to making a deduction for early payment, the appropriate rate remained 2.5% and table 27 gave the appropriate value of .8839.

[23] So in this case, there were no complications highlighted by the pleadings and even if there were, the jury would be entitled to resolve some issues on a broad basis. The former consideration distinguished this case from Slessor, MacDonald and Lewendon.

[24] In Slessor, there were other complicating factors, and the jury would definitely have had to consider the differential between the pursuer's previous employment and his residual working capacity.

[25] In MacDonald, there would have been a need for consideration of the differential between before and after injury employment and perhaps varying multipliers. There was uncertainty as to the date of retirement and uncertainty as to what the pursuer would be capable of doing which made it difficult to fix a primary multiplier. This could be distinguished from the present case as a date of retirement was averred and the question of what the pursuer might be capable of doing does not arise on the pleadings.

[26] In Lewendon, there would necessarily have been a differential and there was the further complication of inevitable redundancy even in the absence of injury. Split multipliers were anticipated in that case.

[27] In the circumstances of this case, there was no averment of a residual earning capacity and there would be no need for split multipliers. However, there was case law which demonstrated that even if there were such an issue, the jury was not compelled to resort to split multipliers. It could legitimately adopt the approach taken by Lord McFadyen in Duffy v Macfish 2001 SLT 833 and Donnelly v FAS Products Limited, 19 March 2004, an unreported opinion of Lord Brodie, and simply reduce the multiplier figure by a percentage. As regards that submission, I would make the observation that Lord Brodie was dealing with the fourth edition of the tables in which variable multipliers of the sort which appear in the sixth and seventh edition of the tables did not feature as an option.

[28] Mr Forsyth submitted that certain principles could be gleaned from decided cases, some of which were helpfully drawn together by Temporary Judge Reid QC in Annandale v Santa Fe International Services Inc 2006 SLT 676 at paragraph 6. Mr Forsyth submitted that points 1, 5, 7, 8 and 9 were of particular relevance to this case.

"[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).

...

(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).

(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)."

[29] Mr Forsyth referred me to the opinion of Lady Paton in Graham v Dryden 2002 Rep LR 104 in which the court was confronted with an argument that a number of features dictated that special cause was shown. Lady Paton rejected each of the arguments and, in relation to future wage loss and future pension loss, with reference to Robertson, decided that the fact that more than one multiplier may require to be considered by the jury was not in itself special cause and noted at paragraph 24 that only two multipliers would be required. She had noted in paragraph 17 that the pursuer founded on the fact that the jury would be assisted by actuarial evidence as well as the judge's directions.

[30] Mr Forsyth founded on McKeown v Sir William Arrol & Co 1974 SC 97 and particular passages in the opinion of the court given by Lord Wheatley, essentially to vouch propositions 8 and 9 in paragraph 6 of Annandale. He submitted that there was nothing special to this case about the possible difficulties identified by Mr Peden, they would be found in a whole class of cases, which of itself tended to demonstrate that special cause was not shown.

[31] The present case was very similar to Robertson where Lord Marnoch gave the opinion of an Extra Division. The use of the Ogden Tables did not amount to special cause in a case where neither party had made averments suggesting that there would be departure from the Tables and their standard adjustments for contingencies.

[32] Mr Forsyth founded on Reid and Others v BP Grangemouth Refinery Ltd, 8 May 2001, an unreported opinion of Lord McCluskey in which the court made favourable comments about the capacity of juries to cope with complex issues including the use of the Ogden Tables in relation to loss of support and loss of services. That was a fatal case in which there were a number of pursuers.

[33] Mr Forsyth referred me to Tait v Diamond Offshore Drilling (UK) Limited, 21 December 2000, an unreported opinion of Lord Wheatley. He allowed issues where it had been claimed that the requirement to calculate future wage loss for a man of 21 who had been badly affected by an accident on an oil rig amounted to special cause. Although the application of the Ogden Tables and the actuarial evidence which may accompany them was potentially complex, there were no other elements which would interfere with a more or less straightforward application of the tables. There was only one pursuer, no question of contributory negligence or any pre-existing medical condition, no complex service claims and no pension or tax complications.

[34] Mr Forsyth referred me to Baird v Cowie [2006] CSOH 168, an unreported decision of Lord Carloway of 27 October 2006 in which he allowed issues. In that case the pursuer averred that she had lost her job and would not be able to work again in that capacity and was currently unfit for work, and the defender maintained that she would be able to find at least some work in future. I would observe that that decision is primarily concerned with questions of notice and relevancy about which nothing had been said by Mr Peden for the defenders in his submissions.

[35] Mr Forsyth submitted that the approach taken by Lord Mackay of Drumadoon in giving his opinion after proof in Young v Scottish Coal (Deep Mining) Co Ltd 2002 SLT 1215, at paragraph 38, was similar to that being taken by the pursuer in the present case. I was not convinced that this added much to his argument. Unlike the position in Young, the pursuer is not averring that she will work in some other capacity in future and Lord Mackay would have had an earlier version of the tables available to him which would not have set out the variable multiplier approach.

[36] Mr Forsyth observed that, whilst Mr Peden had not made much of pension loss, the unreported opinion of Lord Wheatley in John Crawford v Renfrewshire Council, 5 December 2000, vouched that even where a jury may have to make a number of calculations and to apply different multipliers in relation to pension loss and future care costs, that did not amount to special cause, particularly in a case involving a single pursuer.

[37] Mr Forsyth concluded by submitting that the method he had adopted in his new calculation was fairly simple. If competing multipliers were proposed by pursuer and defenders that was not beyond a jury, particularly as they would be assisted by evidence, speeches and directions. There were ways of avoiding any complexity which might arise, and there was nothing special to this case which distinguished it from many other cases. Issues should be allowed.

Discussion

[38] The effect of the Court of Session Act 1988 sections 9(b) and 11(a) is that the pursuer is entitled to have his case tried by jury unless special cause is shown and the onus is on the defenders to show special cause. The decision in Robertson establishes that the likely application of the Ogden Tables does not, of itself, amount to special cause. I found the guidance elicited by the judge in Annandale, from those cases which he considered, to offer a helpful summary of the sorts of considerations which may or may not be influential according to the circumstances of the particular case. In a number of opinions given by Lord Emslie since Annandale was decided, there are illustrations of circumstances which persuaded the court in the exercise of its discretion to find special cause established. My own decision in Lewendon is another example. It remains in each case a matter for the discretion of the court as to whether in any particular set of circumstances special cause is shown.

[39] In Slessor, the court identified a number of difficulties which made the case unsuitable for jury trial. Future wage loss was not the only difficulty in that case. Other features which were regarded as important were the confused picture presented in the pleadings including uncertainty as to the pursuer's working capacity, a question as to whether working capacity would be affected by feelings of anger and difficulty arising from the uncertain factual basis on which the pursuer had obtained summary decree. Nevertheless, future losses were plainly a material consideration as Lord Emslie explained in paragraph 18 of his opinion:

"[18] In this case, separate and different multipliers would in my view need to be considered in order to calculate (i) the pursuer's likely earnings potential if the accident had not occurred, (ii) the necessary offset for residual post-accident earning capacity, (iii) the claim for pension loss, and (iv) the range of other claims advanced on a lifetime basis or for shorter periods. As regards future earnings in particular, the first two calculations would require consideration of split multipliers in terms of the Tables, for instance where job changes, promotions, wage rises or other such developments were in contemplation. Over and above that, contrary to the submission by senior counsel for the pursuer, I do not consider that the task of adjusting for contingencies would be an easy one, bearing in mind inter alia the existence of commonplace contingencies for which the Ogden Tables do not provide".

[40] By contrast, in the present case there is no real difficulty in identifying the pursuer's likely earning potential if the accident had not occurred, even allowing for a retirement age of 66. At present there is no averment, or report lodged, to suggest that the pursuer will be able to earn a particular reduced amount after 2016 and she avers that she will earn nothing thereafter. There is a claim for pension loss but very little was said about it. At present, there is no clear basis for anticipating that the jury will be asked to apply split multipliers.

[41] In MacDonald, there was significant and continuing uncertainty affecting particular elements of the claim for future loss. The need for split multipliers could not be ruled out for future promotion which was contemplated in the pursuer's employment report. The pursuer had not returned to work since his accident and so the nature and security of his work had yet to be identified. The pursuer had averred a likelihood of forced retirement before he reached 60 without offering to prove when he would retire. There was information before the court to suggest high unemployment and low job security locally which might have to be adjusted for in the absence of any indication in the tables as to how that would be done. Lord Emslie concluded that, in combination, those considerations suggested such complications and complexities as to amount to special cause. By contrast in the present case, the pursuer has returned to work in her pre-accident employment, she does aver a date of retirement, there are no employment reports and she has not suggested that she will be able to work in some other capacity once she is forced to retire from her current employment.

[42] In Lewendon the position was complicated by the fact that the pursuer was going to be made redundant, regardless of his accident. He had not yet found work at the time when the motion for issues was made and the jury would have had to work out when he would be likely to have done so had he not been injured. He averred that at the age of 35 he would have gone to work offshore for the first time and would have gained promotions at particular points in the future but for his accident. How long he would have remained in such employment was uncertain according to an employment expert. The assessment of contingencies was particularly difficult in those circumstances. There were competing employment expert reports lodged which persuaded me that split multipliers were inevitably going to feature both in assessment of what the pursuer would have earned but for his injury and what he could be expected to earn in his subsequent condition. I was persuaded that there would be a multiplicity of complex calculations which would present particularly acute difficulties for a jury amounting to special cause in the particular circumstances of that case. I have not been persuaded that there are comparable difficulties in the present case.

[43] I have sympathy for the position in which Mr Peden found himself. The amendment made at the start of the hearing took some of the wind out of his sails, removing any averment that the pursuer had lost a future career as a doctor not yet embarked upon. Once Mr Peden pointed out errors in the pursuer's Statement of Valuation, Mr Forsyth took advantage of the adjournment over lunch to produce a new calculation, so the position changed again. Mr Peden did not object to that, but I allowed him an opportunity to reply to Mr Forsyth's submissions.

[44] In the result, so far as can be seen at present, the use of the Ogden Tables 7^th Edition does not appear to present a jury with undue difficulties in the particular circumstances of this case. There may be a large number of calculations and there may be calculations based on different evidential hypotheses, but that of itself is not enough to demonstrate special cause. The jury will have the assistance of the evidence of an actuary. At present there are no employment expert reports lodged and I was not told that such experts would be employed. It remains largely speculative that a scenario will develop which will bring split multipliers into play. I am not persuaded that there are such profound difficulties as those which were anticipated in the particular circumstances of the cases of Slessor, MacDonald and Lewendon.

[45] In all the circumstances, even considering all of the points made by Mr Peden in combination, I am not persuaded that the reasons advanced amount to special cause.

Decision

[46] I shall grant the pursuer's motion and allow issues and reserve all questions of expenses.