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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLaughlin v Shaw [2000] ScotCS 126 (17 May 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/126.html Cite as: [2000] ScotCS 126

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[1] This action concerns a road traffic accident in which the pursuer's vehicle was involved with the defender's vehicle. The procedure roll debate concerned the parties' averments in relation to the loss, injury and damage sustained by the pursuer. The defender contends that the pursuer's averments as regards future loss of earnings raise difficulties. These arise from the lack of specification in the averments as to the nature of loss claimed and further their relationship to averments made by the defender regarding the application of the Disability Discrimination Act 1995. These difficulties amount, it is said, to special cause for refusing the pursuer a right to jury trial. The pursuer in turn has taken the opportunity to attack the relevancy of the defender's averments in relation to the 1995 Act.

[2] The pursuer's claim for loss, injury and damage sustained in the car accident derives from an averment that he sustained a flexion injury resulting in strain to the ligaments and soft tissues of the cervical spine. After describing the treatment received for the injury, the pursuer avers that he continues to suffer symptoms of pain in the left side of his neck radiating to his shoulder. He further avers that the pain increases with driving and with lifting or pulling moderate weights and that it is likely that these symptoms will now be permanent. He goes on to aver that he is employed as a landscape gardener by Glasgow City Council. He avers that he has been absent from work on a number of occasions since the accident during which he has suffered a loss of earnings, details of which will be produced. He goes on to say this:

[3] For her part the defender does not admit the nature and extent of the loss, injury and damage sustained by the pursuer which is said to be not known and not admitted. Following an averment of a medical examination in October 1998 in which it is said that the pursuer exhibited a full range of pain free movement in both shoulders, the defender's averments continue as follows:

[4] For the defender it was submitted that the pursuer's averments in relation to future differential wage loss and loss of employability, and the relationship between those heads of claim, were so lacking in specification as to give rise to difficulties for a jury in calculating any award under either head, or both. In putting forward this submission counsel founded in particular upon the case of O'Malley v Multiflex (UK) Inc. 1997 S.L.T. 362. It was said that the averments made were insufficient to identify the means by which the jury could assess damages in relation to future loss and in particular to differentiate between any award for future loss of earnings as opposed to an award to be made for disadvantage in the labour market. It was pointed out that in O'Malley Lord Gill had indicated that the matter had to be determined by reference to the pleadings as they presently stand and not by reference to material which might subsequently be obtained by way of specification. He indicated that the problem arose in that case not least because the two claims appeared, so far as the pleadings in the case were concerned, to be running together, albeit it was accepted by him that it was competent to proceed by reference to two separate heads of claim in regard to future loss.

[5] I have come to the view that the pursuer's case is sufficiently specific and gives sufficiently clear indications of the circumstances giving rise to the pursuer's future loss, including the basis upon which the heads of claim proceed, as to enable a jury under proper direction to make the appropriate assessments. I start from the fact that it is plain from the manner in which the pursuer's averments are set out, that while the pursuer's current position is certain, in that he is a landscape gardener whose earnings can be presently fully determined, his state of health has given rise to concerns on the part of his employer's occupational health physician as to his continuing ability to undertake the heavier aspects of his work. It is to be noted that the pursuer avers what was the opinion expressed by Dr Briggs upon examination in March 1999 and the defender has in turn made averments in regard to that opinion. It is not suggested that these averments do not provide proper material for consideration by the jury. For the future it is clear that the pursuer is not able to state with certainty that he will continue to be able to work in his present employment as a landscape gardener. He raises the prospect that he may be redeployed to lighter duties in which event he would be likely to suffer loss or earnings by comparison with his current employment as a landscape gardener. He specifies what the nature of the loss would be in that event and estimates the extent of the loss. I do not consider that any criticism can be extended to these averments as constituting material from which the jury using a broad brush approach to the prospect of some change in the nature of the pursuer's employment as a consequence of his injury, would be able to approach the issue of assessment of damages on that head. The pursuer also raises the prospect that he might lose his job. In that event he avers that he would be at a significant disadvantage in the labour market. Clearly this head of damage, which is postulated upon the basis that he has lost his current employment with the council altogether, and hence would not fall within any claim based upon redeployment, is a matter again for a broad brush approach. The competency of such a claim has long been accepted. I refer to the case of Skakle v Downie 1975 S.L.T. (Notes) 23 and the Opinion of Lord Maxwell in that case, where he made an award for what he termed "employment insecurity" and measured it broadly.

[6] While the matter must be one for the exercise of the Court's discretion, the pursuer does have a statutory right to jury trial. As regards the complaints made in relation to future loss of earnings, while they clearly indicate that there can be difficulty in assessing the precise temporal limits for the claims made in relation to the pursuer's future employment prospects and the loss likely to follow in relation to his future employment, it cannot be expected of the pursuer that he provide more material than he has already given in his pleadings at present. The jury will require to employ a broad brush approach to these claims. That however does not make the claims any less a matter which would be proper for the jury to consider since at this stage these claims must necessarily be based upon an assessment of future prospects which would defy precise quantification. In such circumstances as was pointed out in the case of Stark v Ford (No.2) 1996 S.L.T. 1329 the jury may be in as good as position if not a better position than a judge to make an assessment.

[7] However I have to consider the issue raised in relation to the Disability Discrimination Act 1995 in the defender's averments. On a proper reading of these averments it is clear that the intention of the pleader as to the effect of the Act is that in the event that the pursuer comes within its protection, his employer would then be under a duty to take reasonable steps to alter the arrangements for his employment to prevent his disability placing him at a disadvantage as compared with other employees. That is to say that the reference to the statute is introduced with a view to mitigating or offsetting the economic effects of the pursuer's claim that if redeployed to lighter duties he would be bound to suffer a loss of earnings. It was submitted for the pursuer that the defender's present averments did not constitute material from which it could be asserted that the pursuer would fall within the statutory definition of a disabled person. But in my opinion the defender is entitled to make the point before the jury that there are certain events which relate to the future deterioration in the pursuer's condition which may bring him within the statutory protection and thus to that extent avoid his being subjected to a redeployment which led to loss of earnings. Again this is a matter upon which if directed appropriately a jury as much as a judge would, in my opinion, be able to determine its effect upon the pursuer's claim for future loss of earnings. That said, I do not consider that the defender's averments in full are relevant to that matter. In particular in so far as they appear to suggest that the employer might not give effect to the statutory protection, this is to speculate that the employer would perform an unlawful act in contravention to Section 4 of the Act which provides that it is unlawful for an employer to discriminate against disabled persons. For that reason I shall exclude from probation the averments beginning with the phrase "If the pursuer was to be transferred to alternative duties" down to the words "such as allocating his heavier duties to another employee.", and the averment "In order to mitigate his loss, the pursuer should insist that proper consideration be given to adjustment of his working arrangements in accordance with the Act".

[8] Subject to these deletions I consider that the parties' averments are otherwise apt for jury trial. I shall accordingly allow issues and at the same time shall repel the plea to relevancy and lack of specification for the pursuer added at the Bar at the procedure roll debate and repel the first two preliminary pleas for the defender.