JOHN MACINNES v. ANTONIA LLOYD OWEN
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF C J MacAULAY, Q.C., (SITTING AS A TEMPORARY JUDGE) in the cause JOHN MacINNES Pursuer; against ANTONIA LLOYD OWEN Defender: ________________ |
Pursuer: Grant-Hutchison, Morton Fraser
Defender: Clarke; Simpson & Marwick, W.S.
24 November 2004
Introduction
[1]The pursuer in this action seeks reparation in respect of personal injuries suffered by him when the car which he was driving was involved in a collision with a car driven by the defender. The accident occurred on 26 July 1997. At that time the pursuer was aged thirty three. The sum sued for is £600,000. Liability is not disputed and the action is defended solely on the quantum of damages.
[2]The case came before me for discussion on the procedure roll on the defender's motion. The defender's first plea-in-law was a general plea to the relevancy and specification of the pursuer's averments. At the outset of the debate, counsel for the defender moved to amend by introducing as a new first plea-in-law a plea that special cause existed for refusing a jury trial. This motion was not opposed and I granted it. Consequently, the sole issue discussed before me was whether or not issues should be allowed.
[3]The admitted circumstances of the accident are that the defender's car collided with the rear of the pursuer's car as both cars were moving slowly in a line of traffic. The consequences of the accident to the pursuer are set out in Article 4 of Condescendence. The pursuer avers that as a result of the accident he suffered soft tissue injuries to his lumbar area. It is not suggested that the injuries required immediate hospital treatment but the pursuer does aver that on the day following the accident, he was very stiff and had severe low back pain. There then follows some five pages of averments culminating in an averment that in 2000 the pursuer required a wheelchair "to get around". Not to be outdone, the defender responds with detailed averments spread over some ten pages of the Record. Much of what is said is very obviously the product of a thorough dredging through the pursuer's medical records, beginning on 9 May 1978 when the pursuer was aged thirteen. The thrust of the defender's position is that the accident would, at most, have produced a minor to moderate whiplash injury, and that the pursuer's complaints about the level of his pain and disability are grossly excessive. There are also averments that in the past the pursuer had been diagnosed as suffering from hysteria. Although the pursuer makes some relatively brief responses to the defender's averments, the defender's averments in relation to the previous history of hysteria are covered by a general denial.
Submissions for Defender - Chapter One
[4]At the procedure roll counsel for the defender moved to sustain the new first plea-in-law to the effect that special cause existed to withhold the case from jury trial and he moved that a proof before answer should be allowed.
[5]Counsel for the defender divided his submissions into two chapters. In the first chapter of his submissions he submitted that the pursuer's averments in relation to quantum lacked clarity and raised difficult issues of causation that rendered the case unsuitable for jury trial. He argued that the route from a relatively modest soft tissue injury to the pursuer's lumbar area to a wheelchair some three years later was far from clear from the pursuer's averments. He also criticised some particular averments. He submitted that the averment "all of this was due to a lower motor neurone problem" (7D-E) was probably contradicted by the averment "there was no specific neurophysiological pathology to explain the pursuer's condition" (7E-8A). He drew attention to the averment "By 30th April 1999 the pursuer was diagnosed with a gross flattening of the lumbar curve with flexion to 2 centimetres" (8E-9A), and argued that it was not at all clear if that complaint was being referred to the accident. He also pointed to the averment "The pursuer was diagnosed with segmental disability" (9A-B) and posed the question as to how that could be squared with the earlier averment suggesting that there was no neurophysiological pathology. He also pointed to the position taken by the defender on Record to the effect that any injury would have cleared up after six to eight weeks, and that the pursuer was grossly exaggerating his symptoms. He drew attention to the defender's averments about the pursuer's medical history and in particular to the averments that from a relatively young age the pursuer had displayed hysterical reactions to certain events in his life. He contended that the absence in the pursuer's averments of any psychological basis for his condition was difficult to understand when the case was considered as a whole. He also submitted that the case would raise complex issues of medical and legal causation, and, in so far as medical causation was concerned, at least three disciplines. Mr Clarke referred to Forrest v Caroline Gourlay (unreported 21 March 2003, a decision of Temporary Judge T G Coutts, Q.C.) in support of this particular part of his submission.
[6]Also within this chapter of his submissions, Mr Clarke made a number of points in relation to the pursuer's claims for loss of income and services. He questioned whether the averment made by the pursuer in relation to his premises sustaining water damage (22D-E) was relevant. He challenged the reference to the pursuer having a total net profit of £19,000 (23A-B) as lacking in specification. His point here was that there was no indication given as to how that figure was to be allocated to the years since the accident. Also, in relation to the pursuer's averment that his net annual profit would have increased (23C-D) Mr Clarke submitted that that averment lacked specification in that no indication is given as to by how much the profit would have increased and over what period. In relation to the claim for services Mr Clarke submitted that the averments made in relation to the pursuer's wife caring for the pursuer on a full time basis lacked specification in that no rate of pay was specified. He also argued that the reference in the pleadings to an Assessment Report by Home Assessment and Advisory Services was inappropriate and that any details founded upon contained in that report should have been set out in the pleadings.
Pursuer's submissions on Chapter One
[7]In a succinct submission Mr Grant-Hutchison argued that no special cause existed to justify withdrawing this case from jury trial. He pointed to the fact that liability was admitted and unclouded by any question of contributory negligence. He also argued that the injury sustained by the pursuer was a simple one - an injury to the lumbar spine. He submitted that he had made clear averments showing how the injury sustained by the pursuer in the accident was directly linked to the consequences averred. He accepted that it was not averred that there was a psychological element involved in the pursuer's condition but his position was that the absence of any possible psychological evidence made the case even more straightforward. His position was that, as like us not, only one medical expert would be required for either side. In any event, he argued that the possibility of complicated medical evidence did not per se justify withdrawing a case from jury trial. He relied upon the cases of King v Negro (unreported, 10 December 2002, a decision of Lord Clarke) and Stewart v Nicol 2003 SLT 843.
[8]In relation to the points taken in respect of the loss of earning and the services heads of claim, Mr Grant-Hutchison submitted that the averments made gave sufficient notice of the evidence that might be led on behalf of the pursuer in support of those heads of claim. He made reference to Currie v Strathclyde Regional Council Fire Brigade 1999 SLT 6 and the observations made by Lord Eassie in that case (64I-K and 65C-D).
Decision on Chapter One
[9]In considering whether the defender has established that special cause exists to render this case unsuitable for jury trial, it is necessary to look at the case in its totality. There is no real dispute that the injury sustained by the pursuer at the time of the accident was, as the pursuer avers, a soft tissue injury to his lumbar spine. That being so, it is a little surprising to find some three years later that the pursuer has deteriorated to such an extent that he requires to use a wheelchair for his mobility. In my opinion, in a case of this kind where the final consequences of a relatively modest injury are wholly disproportionate to the nature of the injury said to have been sustained at the time of the accident, it is incumbent upon a pursuer to focus clearly in the pleadings on the reasons why such an unlikely outcome has occurred. From the perspective of the defender, what might have been a relatively modest claim has been transformed into a claim where the sum sued for is £600,000. There is, in my view, a lack of clarity in the pursuer's pleadings as to how the modest injury said to have been sustained in the accident has led to the serious position of the pursuer being reduced to using a wheelchair. The pursuer's averments on a lower motor neurone problem on the one hand and the averment of there being no specific neurophysical pathology on the other, do at least ex facie appear to be contradictory. Furthermore, if the averment that by 30 April 1999 the pursuer was diagnosed with gross flattening of the lumbar curve is directly attributed to the accident, then it is not at all clear how the accident caused that result. The averments suggesting a diagnosis of "segmental disability" caused by an injury to a disc appear to relate to a diagnosis sometime in 1999, almost two years after the accident. There is no indication given as to which disc is involved. Nor is it at all clear from the pleadings how the soft tissue injury sustained at the time of the accident has subsequently been converted into an injury to an unspecified disc. In my opinion, looking to the particular circumstances of this case, inadequate notice has been given to the defender on the pathology existing between the injury sustained as a result of the accident and the devastating consequences now said to be the direct result of that injury. For that reason I am of the opinion that special reason does exist for withholding this case from jury trial.
[10]Although I consider that Mr Grant-Hutchison was somewhat optimistic in thinking that this case would essentially develop into a two expert case, one for the pursuer and one for the defender, nevertheless, I was not persuaded that any complexities in the medical evidence would make the case unsuitable for jury trial. Furthermore in relation to issues of legal causation the trial judge would be in a position to give the jury directions on any such issues. Nor was I persuaded that the points made by Mr Clarke in relation to loss of income and services were of any real substance and certainly did not amount to justification for holding that the case was unsuitable for jury trial. Indeed Mr Clarke himself accepted that on their own these points would not have prevented this case from being suitable for trial by jury.
Defender's submissions on Chapter Two
[11]The second chapter of the defender's submissions had quite a different focus. Put shortly, the defender's argument was that in the circumstances of this case, and on the assumption that the jury would be faced with complex issues with regard to past and future loss of earnings and services, the defender's Convention rights under Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms were at risk of being infringed. Mr Clarke submitted that in this sort of case it may not be possible to tell from the amounts awarded for those heads of claim what the jury had accepted or rejected because of the inability of a jury to give reasons for any awards made. Because of this inability to give reasons, it was argued that the defender may very well be prejudiced when she came to exercise her right of appeal in respect of any such awards. He referred to the decisions in the cases of Heasman v J M Taylor & Partners 2002 SC 326 and Sandison v Graeme Begg Limited 2001 SC 821.
[12]In reply to this submission Mr Grant-Hutchison relied on the cases of Heasman and Sandison. He argued that Heasman supported the general proposition that jury trial was compatible with Article 6(1) of the Convention. In any event, he submitted that Sandison was directly in point and should be followed.
Decision on Chapter Two
[13]In developing his submissions Mr Clarke very properly had drawn my attention to the decisions in the cases of Heasman and Sandison. The decisions in those cases undermined his argument. In the Heasman case, the focus was on the assessment by jury of solatium. The decision in that case was that a failure by a jury to give reasons for its assessment of solatium did not constitute a contravention of Article 6(1). However, the point was made there that the issue could really only be determined after a trial had taken place. The same point can be made in this case.
[14]In the Sandison case the focus was on loss of earnings, the question being whether a jury's inability to give reasons may create a risk of an infringement of Article 6(1) of the Convention. In that case Lord Mackay of Drumadoon expressed the following view:
"In my opinion, while this second chapter of submissions on behalf of the defenders raises novel points, none of the arguments advanced would warrant my holding that in the circumstances of this case, the allowance of issues would give rise to any risk that the defender's Convention rights under Article 6(1) would be liable to be infringed. Numerous authorities indicate that, over the years, the Inner House have had little difficulty in dealing with motions for new trials, without the Court having had available reasons for a jury's decision on liability and on any individual awards of damages that may have been made. In this regard, it is important to bear in mind the grounds upon which a new trial may be sought and granted. These are to be found in section 29(1) of the 1988 Act. Amongst those grounds are the excess or inadequacy of the damages. The specific grounds enumerated in section 29(1) are followed by the words 'or on such other ground as is essential to the justice of the cause'." (827G-828A).
He went on to say that, although the Appellate Court may have available to it a breakdown of the jury's award, nevertheless the complaint that the damages awarded are excessive or inadequate has to be addressed in the context of the award as a whole, and that
".... when the amount of damages awarded by a jury is called into question it is necessary for the Inner House to consider whether essential justice requires that the motion for a new trial be granted".
Lord Mackay goes on to express the view that against such a background in determining a motion for a new trial when damages are called into question the Appellate Court does not require detailed reasons from a jury before the party dissatisfied with the jury's decision on quantum could exercise the statutory right to seek a new trial. I am in total agreement with Lord Mackay's approach.
[15]In the circumstances of this case I am not persuaded that, had I been inclined to permit the allowance of issues, there would have been any risk of an infringement of the defender's Convention rights under Article 6(1). In relation to loss of earnings the jury will have presented to it the figures that the pursuer contends he would have earned in past and would earn in the future. The jury would be asked to have regard to any such figures when considering what award to make. So far as the claim for services is concerned, and in relation to the care said to have been provided to the pursuer by his wife, it seems to me that a jury is ideally placed to put a value on such care. So far as any paid care is concerned, again the jury would have before it figures upon which to base any award. I would not therefore have been prepared to accept under this head of the defender's argument that special cause existed to warrant withholding this case from a trial by jury.
[16]In any event, I was not convinced in the validity of Mr Clarke's assumption that the claims made for loss of earnings and services would raise complex issues. The nature of those heads of claim in this case were not materially different from the nature of such heads of claim in many reparation actions.
[17]For the reason expressed earlier, I am satisfied that special cause does exist for withholding this case from jury trial. Accordingly I shall sustain the defender's first plea-in-law and allow a proof before answer.