Sitting as a Temporary Judge

in the cause








Third Party:


Pursuers: Beardmore; Henderson Boyd Jackson, W.S.
First Defender: Laing; Shepherd & Wedderburn, W.S.
Third Party: Beardmore; Henderson Boyd Jackson, W.S.

14 November 2003


[1]This action arises from a road traffic accident which occurred on 18 June 2000. A police car driven by a police constable, for whose actings the first defender is said to be vicariously liable, collided with a car being driven by the first pursuer. The police car was pursuing another car being driven at excessive speed by the second defender. The pursuer's mother, aged 81, was a front seat passenger in her car. The pursuer's mother suffered multiple injuries in the accident and died in hospital two days later. The second pursuer is the husband of the first pursuer. The first defender has served a third party notice on the first pursuer. The second defender has not entered the process.

[2]The action was raised in the Court of Session after 1 April 2003. Accordingly, new rules of court apply, namely 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.

[3]The pursuers' Statement of Claim, as amended, contains the following statements with regard to their respective losses said to be attributable to the fault of the first defender's police constable:

"Stat. 5.Following the impact the first pursuer was in shock. She was fearful, horror-struck and helpless. The first pursuer was taken by ambulance to Edinburgh Royal Infirmary. She suffered chest pain and bruising to her ribs, right foot, knee and hip. She was given painkillers and discharged. However, thereafter she has suffered depressive symptoms. She lacks energy. She is sad and pessimistic. She now avoids and has lost interest in socialising, entertaining and exercising. For the first three months post-accident she suffered flashbacks of the accident on a daily basis. She continues to suffer them, every second month or so. She became increasingly irritable and hypersensitive to noise. She is now easily startled and agitated. She has suffered loss of sleep and concentration. She is anxious and at times weepy. She required about 7 weeks off work. She has required to attend her GP, Dr Boyle, Linlithgow Health Centre, High Street, Linlithgow. He referred the first pursuer to the Community Psychiatric Nurse. The nurse considered the first pursuer to be a suicide risk. The first pursuer was given breathing exercises. As a consequence of the accident, the first pursuer has been diagnosed as suffering co-existent Post-Traumatic Stress Disorder and depression. The severity of her psychological injuries has reduced since the accident. The symptoms are exacerbated when dealing with issues surrounding the accident, such as during the trial of PC Murtagh and this present action. She has attended Dr Stewart at the Murrayfield Hospital. His report is produced. It is likely that the depression and PTSD will clear up within the next 2 to 3 years. Prior to the accident the first pursuer gave no thought to early retiral. She is entitled to work until aged 65. However the psychological factors noted above have resulted in a loss of interest, concentration, enjoyment and confidence when at work. She was inconvenienced by the cancellation of a holiday shortly after the accident. She has suffered and continues to suffer pain and inconvenience as a result of the accident. Further she has diminished prospects on the labour market as a result of the accident. But for the accident, she was likely to remain in her employment until between 60 and 65. She is now likely to take early retirement as a consequence of the psychological sequelae of the accident. She has required services from her husband. The averments of the defender and third party are denied except insofar as coinciding herewith.

Stat. 6.Further, the pursuers have suffered distress and anxiety as a result of their contemplation of the deceased's suffering prior to her death. Agnes Reid Hodge or Steel, the deceased, was injured in the accident. She was 81 at the time. Her date of birth was 3rd August 1919. She was taken by ambulance to the Edinburgh Royal Infirmary. As a result of the accident, she suffered multiple injuries. She suffered extensive bruising, including to the head. She fractured 6 ribs. She suffered a crushed fracture of the 8th thoracic vertebra. She fractured her pelvis at the superior aspect of the right pubic ramus. She had significant internal haemorrhaging. She remained in hospital. She was conscious, tired and worried. She was occasionally agitated. Her condition deteriorated. She died on 20th June 2000. A post-mortem was carried out on 22nd June 2000, by Drs Fineron and Purdue at the Forensic Medicine Unit at the University of Edinburgh. Although the deceased has pre-existing heart disease, the accident caused her injuries and contributed - to some extent - to her death. The pursuers suffer grief and sorrow as a result of the deceased's death. The first pursuer in particular suffered and continues to suffer intense grief as a result of her mother's death. She has been diagnosed as having a bereavement reaction. Such a reaction includes feelings of sadness, pessimism, loss of sleep etc., associated in particular with depressive symptoms. In so far as any such symptoms are referable to both the pursuers' personal injuries and the death, they are to apportioned (sic.) equally between them. They have lost her society and guidance. The first pursuer was close to the deceased. She frequently saw the deceased and drove her about and looked after her needs on an almost daily basis. Indeed the first pursuer was taking her mother out for a ride in the car at the time of the accident. The pursuers would take the deceased to the shops and to visit relatives. The deceased's GP was Dr Paterson, Dalkeith Road Medical Practice, 145 Dalkeith Road, Edinburgh. The averments of the defender and third party are denied except insofar as coinciding herewith."

[4]The case came before the court on 7 November 2003 on the pursuer's motion for a jury trial in terms of Rule 43.6(5)(c). The motion was opposed by the first defender who sought a proof for the four reasons set out in a Note of Arguments. By the time that the motion was heard, the first defender had only one reason for submitting that the cause was unsuitable for jury trial.

Submissions for the first defender

[5]Counsel for the first defender accepted that in terms of sections 9 and 11 of the Court of Session Act 1988 there was an onus on the first defender to demonstrate that there was special cause on the facts of this case to justify a proof rather than a jury trial. His argument focused on the pursuers' averments of loss in Statements 5 and 6 and, in particular, the overlap in the first pursuer's claim for solatium in respect of her own injuries and her claim under section 1(4) of the Damages (Scotland) Act 1976 ("the 1976 Act") flowing from the death of her mother. A jury would be faced by three separate heads: (i) co-existent Post-Traumatic Stress Disorder and depression (solatium), (ii) distress and anxiety endured in contemplation of the suffering of her mother before her death (section 1(4)(a) of the 1976 Act), and (iii) grief and sorrow caused by her mother's death (section 1(4)(b) of the 1976 Act). Counsel accepted that in making an award a jury would be not be required to distinguish between heads (a) and (b) of section 1(4) and concentrated on the distinction which a jury would require to draw between head (i) on the one hand and heads (ii) and (iii) on the other hand. There was, he said, a danger of double counting. Any direction to the jury would not be simple and there would be a real risk of confusion in the minds of the jury. Furthermore, the second pursuer's claim would be very different, because he only had a claim under section 1(4). He was not present at the accident.

[6]The point had been considered by Lady Cosgrove in Bromham v Highland Regional Council, 1997 S.L.T. 1137. In that case the fact that confusion was likely to be caused in the minds of the jury by concurrent claims for solatium and loss of society was one of four grounds on which she held that special cause existed for withholding the case from trial by jury. In that case the contention was that the claim of the first pursuer and his elder daughter for solatium based on post-traumatic stress disorder, which it was alleged they had suffered as a result of witnessing the accident which caused the death of the deceased, inevitably overlapped the claim under section 1(4) of the 1976 Act. Furthermore, it would be difficult to explain to the jury how a claim for post-traumatic stress disorder arose in respect of the first pursuer and the older of his two daughters, but not for the younger daughter or the second pursuer who did not have the requisite proximity to the accident to have a solatium claim.

[7]In considering this argument, Lady Cosgrove stated (at pages 1139K - 1140A):

"The question thus comes to be whether difficulties are likely to arise for the 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 S.L.T. 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 at 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 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."

Counsel submitted that the present case was more complicated than the facts in Bromham because of the personal injuries sustained by the first pursuer.

[8]Lady Cosgrove's decision was considered by Temporary Judge T.G. Coutts, Q.C., in Boyce v Sherrie, 1998 S.L.T. 611. In that case the parents of a child who had been killed in a road accident sought damages for loss of society. The defender argued that there was special cause for withholding the case from a jury on the basis that the pursuers appeared to be seeking solatium for "pathological grief" caused by the death of their daughter in addition to damages for loss of society, and that the overlap between the two claims could cause confusion in the minds of the jury. During the course of the hearing the pursuers undertook that the only evidence to be led in support of their distress would be their own evidence. In allowing issues, the temporary judge stated (at page 612I-J):

"In the present case I saw no reason to withhold the case from jury trial. In my opinion special cause was not shown by the defender. In avoiding the issues raised as complicating factors in the cited cases, counsel no doubt exercised a wise discretion. I would not wish it to be assumed, however, that I would have agreed with the opinion in Bromham that concurrent claims for solatium for distress and for loss of society were unsuitable for jury trial. Perhaps they were in that particular case, but I would not assent to any general proposition that if a parent claiming damages for the loss of a child sought to aver specific injury to them in addition to loss of society, they would be deprived of their entitlement to trial by jury."

[9]In a subsequent case, Beaton v Cain, 2000 S.L.T. 920, Temporary Judge T.G. Coutts, Q.C., observed that Boyce was a rather special case which differed from Beaton in that there were no averments in it which carried any implication of medical treatment and no medical evidence was to be led, whereas in Beaton there was at least an implication from the averments that ante-depressant treatment had been prescribed, which pointed to an effect beyond that of grief and sorrow and implied the suffering of personal injury. The temporary judge in Beaton found that the presence in the pleadings of the word "distress" and the level of ambiguity about what it was that the pursuers were putting forward as relevant to their section 1(4) claim, were one of several reasons to justify withholding that case from the jury.

[10]In Gillies v Lynch, 2002 S.L.T. 1420, Lord Macfadyen distinguished both Bromham and Beaton. That case was rather different because it involved only a claim under section 1(4) of the 1976 Act and there was no solatium claim. In Gillies Lord Macfadyen held that averments of psychological damage which might have supported a claim of solatium, were nonetheless relevant to a claim under section 1(4)(b).

[11]Counsel for the first defender drew attention to three further factors in support of his argument. First, he noted that the pursuers' averment in Statement 6 on causation was only that the accident had caused her injuries and "contributed - to some extent - to her death". There was likely to be an issue on causation. Secondly, he pointed to the averred seriousness of the first pursuer's post-traumatic stress disorder which, more than three years after the accident, was likely to last for another two to three years and was likely to lead to her early retirement. Furthermore, under reference to the "Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition - Text Revision" he submitted that PTSD could be triggered by the threat of serious injury to the victim or by witnessing serious injury sustained by another. ("DSM - IV - TR" para.309.81 at p.463). Thirdly, there was a clear overlap of the symptoms of the first pursuer's own injuries giving rise to her solatium claim and of bereavement associated with her claim under section 1(4). ("DSM - IV - TR" at p.740.)

Submissions for pursuers

[12]Counsel for the pursuers submitted that the present case was different from those cited by counsel for the first defender in that in the present case the overlap issue between the solatium and the section 1(4) claim was the only reason it was sought to justify withholding the case from a jury trial. There was nothing inherently unsuitable about a case which included potentially overlapping heads of claim. The matter could be dealt with satisfactorily by an appropriate direction from the trial judge and it was to be assumed that the jury would follow such a direction. Counsel accepted that medical evidence would be led in the present case. He could not make a concession of the kind made in Boyce, but that in itself did not constitute a special cause. The symptoms and conditions could be separated out and the matter explained in a suitable direction.

[13]Counsel cited the recent decision of Lady Paton in Higgins v DHL International (UK) Ltd, 31 October 2003, as an example of a case where the existence of two separate but contributing causes of injury had not been regarded as constituting special cause to keep a personal injuries case from a jury.

[14]Counsel submitted that the present case could be distinguished from the decision of Lady Cosgrove in Bromham. In that case there had been the issue of proximity in addition to the question of overlap. She did not go as far as saying that overlap alone would have justified withholding that case from a jury. Furthermore, although Lord President Hope had observed in Robertson v Forth Road Bridge Joint Board 1996 S.L.T. 263 at 264K that "cases of nervous shock, or of psychiatric illness as this type of injury has been described more accurately in the recent authorities, raise questions of unusual difficulty for the court", there was nothing inherently difficult about post-traumatic stress disorder which would render it unsuitable for consideration by a jury. This view was supported by the decision of Lord Macfadyen in Gillies who, after deciding the matter of relevancy, allowed issues.

[15]In short, the pursuers' position was a simple one; they accepted that there was an overlap of symptoms to be considered under the solatium and section 1(4) claims but they contended that any judge should be able to direct a jury to prevent overlap and avoid any risk to the defenders of double compensation.


[16]While I accept that the existence of post-traumatic stress disorder does not in itself render this case unsuitable for trial by jury, I consider that the circumstances averred in the pleadings make it unsuitable to go to a jury. The overlap between the first pursuer's solatium and section 1(4) claims is self evident from the terms of Statements 5 and 6 and is complicated. In Statement 5, which is concerned with the solatium claim, it is averred that in addition to physical injuries she has been diagnosed as suffering from "co-existent post-traumatic stress disorder and depression". The averments in Statement 6, which is concerned with the section 1(6) claim, appear to concentrate on the fact that the first pursuer has been diagnosed as having a bereavement reaction, some at least of the symptoms of which appear to be the same as, or similar to, symptoms associated with depression. In this state of affairs Statement 6 contains the averment: "In so far as any such symptoms are referable to both the pursuer's personal injuries and the death they are to be apportioned equally between them." There is, however, no reference in Statement 6 to post-traumatic stress disorder, which is averred in Statement 5 to be a co-existent condition with depression in support of her solatium claim. According to "DSM - IV - TR", at p.463, post-traumatic stress disorder can be triggered inter alia by an event involving "actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person". Thus the first pursuer's post-traumatic stress disorder may be related to witnessing the injuries sustained by her mother, which would sound in solatium, but which would have to be distinguished from the first pursuer's claim under section 1(4)(a) in respect of "distress and anxiety endured by the relative in contemplation of the suffering of the deceased before [her] death".

[17]In addition to the issue of overlap, which is apparent from the fairly full averments in Statements 5 and 6, there is in this case a potential issue of causation in respect of the death of the first pursuer's mother. The pursuers are able to aver only that: "The accident caused her injuries and contributed - to some extent - to her death". That averment is covered by a blanket denial by the first defender, but he avers that at the post-mortem: "it was noted that the disease or condition leading to death was coronary artery atheroma and left ventricular hypertrophy". In other words, the first pursuer's solatium claim could succeed while her claim under section 1(4) might fail. In that event, and on the assumption that a jury had successfully avoided the risk of double compensation, the apportionment of loss between the Statement 5 and Statement 6 claims by the first pursuer would become a very real, as opposed to a somewhat academic, exercise. In my opinion the combination of these factors makes this cause unsuitable for a jury trial. It should be appreciated, however, that my decision is based on the particular facts and pleadings of this case and not on any general proposition that overlapping solatium and section 1(4) claims would necessarily constitute special cause to withhold a jury trial. For this reason previous decisions, while giving general guidance, cannot, in my opinion, provide the answer in this case.


[18]In these circumstances I am satisfied that there is special cause for withholding this case from a jury, and I shall refuse the pursuer's motion for issues and allow a proof.