Lord MacLean

Lord Osborne

Lord Kingarth



delivered by LORD MacLEAN



in the cause


Pursuer and Reclaimer;



Defenders and Respondents:


Act: A. Smith, Q.C.; Drummond Miller, W.S.. (Drummond Cool & Mackintosh, Cupar)(Pursuer and Reclaimer)

Alt: Miss Maguire, Q.C., Duncan; Simpson & Marwick, W.S. (Defenders and Respondents)

22 October 2004

The history of the case

[1]In this action the pursuer seeks damages in respect of assaults committed upon him, when he was in care at a residential children's home in Fife between the ages of 7 and 15, by an employee of the statutory predecessors of the defenders, named David Murphy. The defenders have admitted liability to make reparation to him for his loss, injury and damage. What, therefore, is at issue between the parties is the quantum of the damages to be awarded to the pursuer. This being an action of damages for personal injuries, the pursuer has a statutory right to a trial by jury unless the court is persuaded that special cause has been shown why that would not be appropriate. (Sections 9 and 11 of the Court of Session Act 1988). The defenders tabled a plea, which the Lord Ordinary upheld at procedure roll, that, there being special cause, the action was unsuitable for trial by jury. The pursuer has reclaimed against the decision by the Lord Ordinary to allow a proof before answer.

[2]At the outset of the debate at the procedure roll hearing the court amended the Closed Record on the pursuer's motion. As the Lord Ordinary records, the effect was to remove averments relating to another person named Smith who, the pursuer averred, assaulted him while he was also in the employment of the defenders' predecessors. (A trace of this case can still be found in the pursuer's first plea-in-law). As the debate progressed, the pursuer's counsel, Mr Smith, moved to amend his case yet further by deleting averments relating to the effect of the assaults by Murphy on the pursuer's later adult life, which he maintained had been ruined as a consequence. In particular, although he was married with children, his relationship with his wife had broken down. He suffered confusion about his sexuality, and a lack of trust in others. He was tormented by the thoughts of what had occurred. In the result, the pursuer rested his case on averments that he suffered pain, discomfort and humiliation by reason of the assaults perpetrated upon him by Murphy and he confined that to the period when he was between the ages of 7 and 15.

[3]Faced with this substantial paring down of the pursuer's case, the defenders in their pleadings referred back to the original averments made by the pursuer in the pleadings. In particular, towards the end of Answer 5 the defenders averred that the pursuer had, earlier in his pleadings, condescended on having repressed his memory; being unable to discuss the abuse with anyone; and being ashamed and confused. It was said that he required to attend his general practitioner and that he was referred to counselling due to behavioural difficulties. The defenders also averred that the pursuer's perception of his injury went beyond the period in which the abuse occurred.

The submissions

[4]Before us, Miss Maguire submitted that at any inquiry the pursuer was inevitably going to give evidence about his present condition and how he came to recollect what had happened to him. When he remembered the assaults and how he came to do so, would be the subject of close examination by questioning. She suggested that in giving his evidence the pursuer was likely to become distressed. Such distress was bound to be viewed sympathetically by a jury. While the pursuer maintained that he was not seeking damages for the effect in later life of the assaults upon him, the jury could not adequately be directed by the trial judge to ignore such an effect. Even Mr Smith conceded in his submission to us that there was bound to be an effect from such abuse in subsequent years and that there was no doubt that the pursuer's life was affected. He had had difficulties with relationships but not to the extent of an identifiable mental illness established by psychiatric evidence. A jury however could adequately be directed to ignore the subsequent effect of the abusive conduct on his life.

[5]These submissions were made before the Lord Ordinary who repeats them at length in paragraphs 6 to 8 of his judgment. He records in paragraph 9 that both counsel accepted that the decision turned on whether in the particular circumstances of the case there was a material risk of prejudice to the defenders if the case were to be tried by a jury and, if so, whether that risk could be overcome by directions from the trial judge. He then went on to consider the extent of that risk and whether it could be obviated. For the reasons he set out, he came to the conclusion that there was such a material risk of prejudice. The Lord Ordinary anticipated that evidence of the consequences in the pursuer's later life of the assaults was likely to be given and he advanced cogent reasons in the second part of paragraph 10, which we do not repeat here, why the jury could not put that evidence out of their minds, despite any direction by the court. He also concluded that if the jury had to consider how far the pursuer's injuries, both actual and psychological, were attributable to Murphy and how far to Smith, that in itself would not amount to special cause for withholding the case from jury trial. It should be noted that Mr Smith maintained that Smith was also an employee at the children's home in Fife. If that were right, the jury would not have to carry out this exercise anyway. The defenders said that they could not find an employee of his name at the material time employed at the home.

The law

[6]In terms of section 9 of the Court of Session Act 1988 the Lord Ordinary has discretion to allow a proof in an enumerated cause if special cause is shown. It has frequently been said that the Inner House will be slow to interfere with the exercise of that discretion. (Vallery v Robert McAlpine & Sons 1905 7 F. 640; Walker v The Pitlochry Motor Company 1930 S.C. 565 especially per Lord President Clyde at 575; McLaren, Court of Session Practice p.545; Maxwell: Court of Session Practice p.296). The Lord Ordinary must, however, correctly identify the special cause and, in particular, he must find it established by reference to the circumstances of the case he is considering and not to some consideration of a general character. There must be facts in the case that can reasonably bring it into the region of special cause. There must, in other words, also be material before the Lord Ordinary to justify his determination that special cause has been established. (Graham v John Paterson & Son Limited 1938 S.C. 119; McKeown v Sir William Arrol & Co 1974 S.C. 97).

The decision

[7]In our opinion the Lord Ordinary correctly considered the special circumstances of this case, which took on an exceptional character as a result of the amendment made during the debate. It seems to us, ironically in view of the pursuer's counsel's attempts apparently to restrict and simplify the matter before the jury, that there would be considerably less support for a finding of special cause on the original pleadings. (Compare Livingstone v Fife Council, an unreported decision of Lord Philip dated 13 January 2004 which, we were informed, has been reclaimed by the defenders). Further, we cannot find any fault in the Lord Ordinary's approach to and consideration of a direction to the jury and the likelihood of its being followed. While it must be accepted that our system of civil as well as criminal jury trials does largely depend upon juries faithfully following directions given by the trial judge, there will always be exceptional cases where that may be doubted or even unlikely. We agree with the Lord Ordinary that this is such a case.

The disposal

[8]We therefore refuse the reclaiming motion and uphold the Lord Ordinary's decision to allow a proof before answer.