[2016] SC EDIN 59


JUDGMENT OF SHERIFF PETER J BRAID, Sheriff or Lothian and Borders at Edinburgh


In the cause













Edinburgh, 24 August 2016

The sheriff, having resumed consideration of the pursuer’s opposed motion number 7/4 of process, grants same; allows the amended record to be received and to form number 14 of process; thereafter, allows parties a trial by jury and assigns 15, 16, 17 and 18 November 2016 at 10:00 a.m. within the Sheriff Courthouse, 27 Chambers Street, Edinburgh, as a diet therefor.




Introduction and background

[1]        This is a personal injuries action in the All-Scotland Sheriff Court at Edinburgh, in which the pursuer seeks damages in respect of an accident in the course of his employment with the defender, when his left ring finger was severed through coming into contact with a metal clip attached to metal racking.  Liability is admitted.  The pursuer’s heads of claim comprise: solatium; disadvantage in the labour market; pension loss; personal services; and miscellaneous costs including, most significantly, the cost of replacing on a regular basis a custom-made silicone digit.  

[2]        The case called before me on 15 August 2016 for a hearing on the pursuer’s opposed motion number 7/4 of process, to allow the record to be received and to allow issues.  In passing, I should mention that the motion was deficient in two respects, namely, it ought to have sought a jury trial rather than issues (if a jury trial is allowed, the Rules then provide for issues to be lodged within 14 days); and it ought to have estimated the time required for the trial.  Nonetheless the motion was accepted, and argued.  (For completeness, a rule 18 hearing also took place on the same date.  Amendment of the pleadings was not opposed and I dealt with that, and the consequential question of liability for expenses, at the time.  I need not mention that aspect of the hearing further.)

[3]        Mr Lugton, advocate, appeared for the pursuer; and Ms Bennett, advocate, for the defender.  Ms Bennett acknowledged that the pursuer had a statutory entitlement to trial by jury by virtue of section 63(2) of the Courts Reform (Scotland) Act 2014, unless special cause was shown by the defender.  It was further agreed that, by virtue of section 63(3) of the 2014 Act, facts or circumstances could constitute special cause only if they would constitute special cause for the purposes of the equivalent provisions regulating allowance of issues in the Court of Session.  Finally, counsel were also agreed that the decision as to whether or not to allow issues was a discretionary one (although it seems to me that the effect of section 63(3) is that it cannot be entirely discretionary.   However, that may be a question for another day.)



[4]        The following authorities were referred to in the course of submissions:-

Courts Reform (Scotland) Act 2014 Section 63

Robertson v Smith 2000 SC 691

Barry Tait v Diamond Offshore Drilling (UK) Limited (Unreported, 21 December 2000)

Potts v McNulty 2000 SLT 1269

Crawford v Renfrewshire Council 2001 Rep LRQ3-01

Elizabeth Graham v Stuart Dryden (Unreported, 23 July 2002)

Dr Margaret King v Eric Negro (Unreported, 10 December 2002)

Stewart v Nicol 2003 SLT 843

Colin Annandale v Santa Fe International Services Inc [2006] CSOH 52

Kevin O’Neill v Dowding & Mills Plc and Anr [2007] CSOH 17

Gavin Slessor v Vetco Gray UK Limited and Others [2007] CSOH 130

Marc William MacDonald v Christopher Robert Mallan [2008] CSOH 01

Stephen Lewendon v International Paper (UK) Limited [2011] CSOH 116

Karen Kordakis v The National Insurance & Guarantee Corporation Limited [2012] CSOH 57


Defender’s submissions

[5]        In opposing the pursuer’s motion, Ms Bennett did not dispute that these authorities set out the principles to be applied by the court but pointed out, correctly, that each case tends to turn on its own facts and circumstances.  Having seen the pursuer’s written submission in advance, she took no issue with Mr Lugton’s summary of the guiding principles as follows:-

i.   The application of the Ogden Tables, including adjustments to a multiplier for standard contingencies as provided for in the annotated notes, does not constitute special cause in itself (Robertson v Smith; Tait v Diamond Offshore Drilling (UK) Limited; Graham v Dryden; Stuart v Nicol; Annandale v Santa Fe International Services Inc (all supra)).

ii.  The requirement to consider more than one multiplier in relation to more than one head of claim does not constitute special cause in itself.  In particular the presence of both a future loss of earnings claim and a pension loss claim does not constitute special cause (Graham; Stuart; Annandale; Crawford v Renfrewshire Council, supra). 

iii. Disputes and issues which arise time and again in personal injury claims are unlikely to constitute special cause (Annandale).

iv. Special cause may be shown where there are particular difficulties associated with future loss, e.g.:-

·    Multiple calculations which require to be calculated in relation to multiple pursuers: Potts v McNulty.

·    Pursuer’s averments relating to a head of loss of doubtful relevance or lacking in specification:  Potts.

·    Substantial uncertainty over a future loss due to factors such as redundancy: Stephen Lewendon v International Paper (UK) Limited.

·    Uncertainty over retirement date: Macdonald.

·    The need to apply split multipliers: Slessor; Macdonald; O’Neill; Lewendon


[6]        Ms Bennett submitted that, notwithstanding the foregoing guidance, there was special cause in the present case due to a number of factors.  The first of these was the nature of the injury which had both physical and psychological consequences for the pursuer.  She made reference to statement of claim 5.  It contains averments about the traumatic amputation of the pursuer’s left ring finger with associated degloving injury, and about an adjustment disorder with mixed anxiety and depressed mood.  She also drew my attention to answer 5.1, in which the defender avers that the pursuer suffers from carpal tunnel syndrome and pain in both wrists, as well as dupuytren’s disease in both hands and significant thumb arthritis, resulting in poor hand dexterity and worsening grip strength unrelated to the accident.  In assessing solatium, there were therefore complexities caused by pre-existing conditions as well as the need to consider both the physical and psychological consequences of the accident.  The second factor relied upon by counsel for the defender was future loss of earnings.  She made reference to statement 5.2, and to answer 5.1 and 5.2.  On those averments there was an issue as to the pursuer’s retirement date.  The pursuer’s position, stated briefly, is that he left his employment with the defender in December 2013 whereas but for the accident he would have continued in employment until the age of 70 (December 2018).  He was restricted in the type and amount of work that he could do.  He had secured alternative employment but his earnings capacity was reduced.  The defender’s response was that the pursuer had in any event intended to retire from the defender’s employment in 2013.  The jury would therefore have to consider a range of multiplicands and reference would require to be made to the Ogden Tables.  The next factor relied upon was the pursuer’s pension loss which again would require use of the Ogden Tables.  Finally, counsel referred to statement of claim 5.5, in which the pursuer avers that he will require to replace his custom-made silicone digit on a regular basis.  That would also require reference to the Ogden Tables but the application of a different multiplier.  In summary, the use of the Ogden Tables regarding pension loss, loss of wages and the provision of future prosthetics all made for a complicated case.  It would be difficult for a sheriff to give clear directions to a jury.  Accordingly, the more appropriate future procedure would be proof.


Pursuer’s submissions

[7]        In reply, Mr Lugton made reference to his helpful written submission, much of which I have summarised above in paragraph 5.  As regards future loss of earnings, he submitted that these did not give rise to such a level of complexity as to amount to special cause.  He pointed out that the pursuer will attain the age of 70 in March 2018.  Accordingly, his future loss of earnings will require to be considered over a very short and clearly defined period of time.  While admittedly there was a dispute as to when he would have retired but for the accident, that was essentially a jury question in any event.  Counsel made reference to the statement of valuation of claim (number 10 of process) lodged for the pursuer.  It was not particularly complicated.  It did have recourse to the Ogden Tables but the Ogden calculations were not particularly complicated as such calculations go.  This was not a case where one had to try to predict the twists and turns of a lengthy future career.  There were no split multipliers.  The pension loss claimed was very modest and was relatively insignificant in the context of the claim as a whole, in contrast with the hypothetical case of a younger pursuer.  A similar Ogden Table calculation would be required both for the wage loss and the pension loss.  As regards the point about both psychological and physical injury having been sustained, counsel referred to Annandale, paragraph 6, where Temporary Judge J Gordon Reid QC summarised the general guidance which emerged from the authorities.  That guidance included that the leading of technical and complex medical evidence would not of itself make the case unsuitable for a jury trial unless it was a medical question of such novelty or uncertainty that the jury were unlikely to understand; that the mere possibility of some complex medical matter arising does not amount to special cause; that the need for a jury to consider more than one multiplier or pension loss per se is not special cause; that the fact that a pursuer has a pre-existing medical condition or disability or susceptibility does not constitute special cause; that the need to direct a jury on different hypotheses and their consequences does not constitute special cause; and that the number of questions which a jury requires to answer is not relevant although the complexity of the questions and the confusion which they might create in a jury’s mind is a relevant consideration.  Annandale showed, submitted counsel, that juries can and do deal with questions of causation and relatively complex cases in which there may be complex injuries.

[8]        Counsel then made brief reference to the authorities.  He pointed out that Robertson v Smith, where special cause was held not to exist simply because of the application of the Ogden Tables, involved a much younger pursuer, as did Tait.  He then drew my attention to three decisions of Lord Emslie, in each of which he held that special cause was shown.  Counsel made two general observations about these cases namely, first, they did not sit easily with the line of authorities that preceded them and, secondly, that the difficulties to which Lord Emslie referred did not exist in the present case.  The first case was Slessor, supra.  Issues were refused as the future loss claim was too complicated, and the pursuer had suffered the amputation of an arm and leg which was significantly more serious than the injuries sustained by the pursuer in the present action.  Lord Emslie’s reasoning was set out at paragraphs 18 and 19 of his opinion.  While he did refer to the separate and different multipliers which would need to be considered, it was also clear that split multipliers would be required and a confusing picture was presented by the pursuer’s pleadings.  Those factors were absent here.  In O’Neill, supra, Lord Emslie reached a similar decision for similar reasons.  The sort of difficulties present in O’Neill were not present here.  Issues had also been refused by Lord Emslie in O’Neill, and by J Beckett QC sitting as a Temporary Judge (now Lord Beckett) in Lewenden (supra).  Judge Becket had later considered the three Lord Emslie cases and his own case of Lewenden, in Karen Kordakis v The National Insurance & Guarantee Corporation Limited, distinguishing those cases from the circumstances in Korakis, where he allowed issues. 



[9]        Each case must turn on its own facts and circumstances.  It is striking that in the cases to which I was referred where issues were refused, particular difficulties with some aspect of the calculation of damages were founded upon by reference to the particular facts and circumstances of the case in question and one can easily see that a jury might have been thought unable to understand, or fully grasp, the complexities involved in the computation of one or more of the heads of claim.  However, counsel for the defender in the present case was unable to point to any particular aspect of the facts and circumstances, as set out in either the pleadings or the statement of valuation of claim, which would give any particular difficulty to a jury.   Assessment of solatium would not be entirely straightforward but would be well within the capability of a properly directed jury.  In my view, such a jury would be able to comprehend the task before it, even allowing for the possibility of pre-existing conditions and the existence of both a physical and a psychological condition.  As regards patrimonial loss, as soon as it is accepted, as it must be on the Court of Session authorities to which I was referred, that the need for the application of the Ogden Tables in itself does not constitute special cause, the argument for the defender loses much of its force.  There is admittedly an issue over when the pursuer would have retired but for the accident, but it seems to me that that will largely turn on the credibility and reliability of the pursuer and as such it is, as counsel for the pursuer submitted, manifestly a jury question.  While the matter may not be quite as straightforward as counsel for the pursuer submitted, in as much as even if the defender succeeds in establishing that the pursuer would have left their employment at age 65, there may still be an issue as to whether the pursuer’s earning capacity, in his alternative employment post-retirement, has been reduced, any complexities in my view are not such as to make the case unsuitable for a jury.  As regards the application of the Ogden Tables, no particular difficulty was said, by counsel for the defender, to arise out of the calculation of the multiplicands nor was issue taken with the factor of 0.79 taken to provide for risks other than mortality.  As counsel for the pursuer pointed out, this is not a case of a young pursuer whose future career might take various twists and turns, and the calculation is over a relatively short, and defined, period.  The approach to be taken is easily capable of being explained to, and understood by, a jury.  As for the loss of pension claim it seems to me that that is as straightforward as any such claim could ever be.  Finally, I do not foresee any particular difficulty arising out of the pursuer’s claim for the regular replacement of his silicone digit.  That will involve the application of a different multiplier but such an exercise is again within the capability and comprehension of a properly directed jury. 

[10]      It was, of course, the combination of the foregoing factors that counsel for the defender relied upon, rather than any single factor in isolation.  However, in essence the jury will have to consider a series of moderately, but no more than moderately, complex issues, none of which turn on the outcome of any of the other issues.  In my view that simply means that the case overall is one of moderate complexity but is nonetheless one which lies well within the province of a properly directed jury.   I do not consider that the number of issues, or their nature, even taken in combination, is such as to render the case unsuitable for a jury.  Such difficulties as exist fall well short of those which led Lord Emslie and Lord Beckett (as he now is) to conclude that special cause had been shown, in the cases under consideration by them. 



[11]      For all of these reasons, I have reached the view that the defender has not shown special cause.  Accordingly, I have granted the pursuer’s motion and allowed the pursuer a jury trial.  In terms of the ordinary cause rules, issues will require to be lodged within 14 days.