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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baird v. Cowie [2006] ScotCS CSOH_168 (27 October 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_168.html Cite as: [2006] ScotCS CSOH_168, [2006] CSOH 168 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 168 |
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OPINION OF LORD CARLOWAY in the cause SAMANTHA BAIRD Pursuer; against GRAHAM COWIE Defender: ________________ |
Pursuer:
A E Smart;
Thompsons
Defender: P Milligan;
Simpson & Marwick
1. Pleadings
and Statement of Value
"The stump remains painful and
prone to recurrent infections and skin breakdown. Following fitting of a prosthesis and
rehabilitation, she continues to have problems with her prosthesis with
recurrent infections. The pursuer
continues to have pain in the stump. Her
prosthesis is ill fitting. The pursuer
is unable to wear the prosthesis for long periods, due to severe pain and
discomfort. Her mobility is extremely
limited and she uses crutches or a wheelchair to mobilise at home. She lives in a top floor flat. She is housebound and suffers from
depression. The pursuer has been unable
to work since the accident. Prior to the
accident she was employed as a packer in a fish factory. This employment involved lifting and standing
for prolonged periods. She will be
unable to return to this employment. In
light of the pursuer's recurrent infections and mental state, she is unfit for
any work at present. The pursuer's
present accommodation is entirely unsuitable in light of the pursuer's mobility
problems. The pursuer is unable to leave
the property unaided. The pursuer will
require to purchase a ground floor property with adjacent parking, which is
suitable for a wheelchair user. In
addition to the purchase cost of such a property, she will incur costs in
adapting it for her use. The pursuer
requires easy access to medical and nursing treatment for her ongoing infection
control problems, and to support groups for amputees. These facilities are all in
The defender does not admit the nature and extent of any aspect of the pursuer's loss, injury and damage. Notwithstanding that position, he makes one specific positive averment, which is denied by the pursuer, that: "The pursuer should be fit to return to employment once she has been provided with an advanced prosthesis".
[2] In accordance with the requirements of Rule of Court 43.9 the pursuer has lodged a "Statement of Value of Claim". This reads as follows:
|
Head of Claim |
Components |
Valuation |
|
Solatium |
Past Future |
£166,666.00 £83,333.00 |
|
Interest of past solatium |
Percentage...4% |
£11,671.00 |
|
Past wage loss |
Date from which wage loss claimed Absent Rate of net wage loss Net
pre-accident weekly wage £206.08
Gross wage loss 18,782.36 Wages received 1,784.52 Net wage loss 16,997.84 |
£16,997.84 |
|
Interest on past wage loss |
Percentage applied to past wage loss |
£1,188.45 |
|
Future wage loss |
Multiplicand 11,573.23 Multiplier to age 65 23.04 Table C 0.94 Multiplier 21.66 |
£250,648.00 |
|
Past services - section 8 |
|
£11,360.00 |
|
|
Interest |
£796.00 |
|
Future services - section 8 |
Multiplier 29.92 Multiplicand 1,820 |
£54,454.00 |
|
Care |
Multiplicand (estimated) 15,000 Multiplier 29.92 |
£448,800.00 |
|
Additional annual expenses |
Accommodation- annualised purchase cost n/k Gardener 1,500 DIY 1,000 Decorator 750 Laundry 240 Heating 500 Telephone 500 Cost of aids and equipment - annualised cost n/k Travel cost 100 Car - annualised cost n/k Electric scooter n/k Electric wheelchair n/k Holidays 1,500 Multiplicand 6,090 Multiplier 29.92 |
£182,213.00 |
|
Prosthetics |
Cost of one trans-femoral prosthesis 19,425 Cost of duplicate 19,425 Cost of acquatic prosthesis n/k Annual replacement Prostheses - 5 years 7,770 Annual repair and maintenance costs n/k Multiplier 29.92 |
£232,478.00 |
|
Accommodation |
Removal costs n/k Adaptation costs n/k |
|
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TOTAL |
|
£1,303,428.00 |
The defender has also lodged a Statement of Value containing figures for solatium and past wage loss. It calculates future wage loss on the basis that the pursuer will obtain work paying £8,000 net per annum. The defender has also felt able to include estimates of past and future services, accommodation and aids and equipment. His total is £547,271.
[3] The
pursuer has lodged a number of productions relating to quantum of damage, notably sundry medical reports and wages
information. She has also lodged an
"Initial Medical Rehabilitation Report" by a Registered General Nurse dated
2. Submissions
(a) DEFENDER
[4] A proof or proof before answer should be allowed as there existed "special cause" to withhold the case from jury trial. The averments on damages were in part lacking in specification and in part of doubtful relevancy. The lack of specification, that is to say of fair notice of the pursuer's case, existed even although it was competent to consider the terms of any Statement of Value (Form 43.9) if it supplemented the averments (Hajducki: Civil Jury Trials para 6.25; Millar v Watt 2005 SCLR 143, Lady Smith at para [13]; cf Jones v MK Leslie [2004] Rep LR 136, Coutts QC at para [7]; May v Jeeves Parcels [2005] SCLR 1099, Lord Wheatley at para [14]; and Easdon v A Clarke & Co (Smithwick) [2006] CSOH 12, Lord Kingarth at para [12]). Despite the "new" rules on abbreviated pleading (Rule of Court 43.2.(1)), the principle of fair notice remained; as did the need for the substantial points in a case to be stated clearly on record before a jury trial could be allowed. If they were not then there could be an undesirable multiplicity of objections before the jury (Higgins v DHL International (UK) 2003 SLT 1301, Lady Paton at para [23] following Boyle v Glasgow Corporation 1949 SC 254, LJ-C (Thomson) at 261). In this case, the pursuer had, in certain instances, stated only the head of claim with no further specification (cf Rules of Court Appendix, Form 43.2A). Where averments were of doubtful relevancy, a proof before answer should be allowed (Hajducki (supra) at paras 6.29, 6.31; Gillies v Lynch 2002 SLT 1420, Lord Macfadyen at para [11]).
[6] The pursuer's averments on her past section 8 claim were irrelevant in the absence of any specification of the individuals providing the services. This was required because of the obligation on a pursuer to account to the relatives (Kennedy v Lees 1997 SLT 510, Lord Gill at 514, followed in Jones v MK Leslie (supra) at para [6]). There was no specification in the Statement of Value even although Form 43.9 indicated that this should be included. There was also a lack of specification of the nature of the services claimed for. The defender was in the dark about what the future services consisted of, as there was no specification of the hours and work involved, both of which were also recommended in the Form.
[7] The pursuer's claim for medical expenses was of doubtful relevancy because of her use of the word "benefit". She was not offering to prove that she required the treatment or that its provision was necessary and reasonable; only that she would benefit from it. Furthermore, her claim for physiotherapy and gait training was irrelevant as this was not said to be private treatment, but could be obtained from the National Health Service.
[8] The pursuer's claim for the costs of relocating from
Peterhead to
[9] Despite the value of the future care claim, there was virtually no notice of what this consisted of. It was encapsulated in no more than sixteen words. The Statement of Value contained an estimate of £15,000 per annum. This was wholly unspecific and, without further detail, it was very difficult for the defender to meet the case.
[10] Finally, the combination of all of these factors was significant (Easdon v A Clarke & Co (Smithwick) (supra) at para 21). Each factor was specific to this case and amounted to special cause. The case may not be one which is inherently unsuitable for jury trial, but the way in which the pursuer had chosen to present it rendered it unsuitable. That choice was to provide very little detail of how the sub-totals in the Statement of Value had been reached.
(b) PURSUER
[11] The pursuer had a statutory
entitlement to a jury trial unless "special cause" were shown. The fundamentals concerning whether a case
should be withdrawn from jury trial had not changed. However, in this case, what was under
consideration was only the material relative to damages. Prior to the introduction of the chapter 43
procedure, there was no requirement on a pursuer to set forth a valuation of his
claim or to specify how the value was calculated. There was no need to produce vouching much in
advance of a proof. Now, there were
procedures allowing for such a valuation, vouching and a pre-trial meeting
between parties. Where specification of
damage was the issue, the court should be slow to withhold a case from jury
trial (May v Jeeves Parcels (supra)
Lord Wheatley at para 7). There was
nothing in the pursuer's case which was not a recognised claim or was left supported
by averments. It may be that, in
relation to certain heads of claim, the jury may be able to assess quantum only on a broad basis and the
judge may require to direct accordingly, but lack of
precision in a claim did not make a case unsuitable for jury trial (Stark v Ford (No 2) 1996 SLT 1329).
[12] Under the chapter 43 rules, not much detail was required to establish the basic relevancy of claims (Easdon v A Clarke & Co (Smithwick) (supra) at paras 13-15; see generally the guidance in Annandale v Santa Fe International Services [2006] CSOH 52, Reid QC at para 6). The defender had notice of the heads of damage. The pursuer had not yet been able to complete a full Statement of Value but that would not, in any event, have been available under the old rules. The medical position of the pursuer was still emerging. She was undergoing rehabilitation, in part at the instance of the defender. The record enumerated the various heads derived from both parties' expert reports. In accordance with the spirit of the new rules, both parties accepted that the pursuer's situation was uncertain. Because of that, certain costs could not be assessed. Some matters were not capable of precise averment.
[14] The division of services attributable to individual members of the family could be done on the issue. There had been no advance notice that this point was to be taken and the omission could be cured. It was a minor error and did not involve any lack of fair notice. There was no need to name the relatives in the averments although they should have been identified in the Statement of Value. This was not a nursing care case. The jury was only going to be asked to place a value on the services provided by the pursuer's parents and a brother. There would be no detailed evidence on care rates or related material. For the future, it was averred that she would require professional care rather than family care. The claim was for only £1,800 per annum. It was not a complex or technical issue (cf May v Jeeves Parcels (supra)). There was no organised or systematic care, simply assistance to help the pursuer downstairs and out and about, to cook her a meal occasionally and similar matters. She required someone also to carry out the decoration and other work averred.
[15] The use of the verb "benefit" was a simile for "requires". It was derived from the care report. The treatment had been recommended by the defender's expert. On a normal reading of the sentence in question, what was meant was that the pursuer needed the treatment.
[16] The prosthetic claim involved a factual dispute. Perhaps the pursuer would not need two prostheses, if one could be borrowed when necessary. The jury would be able to assess the annual cost. The nature and costs of some equipment could be given but a full report on this was awaited. It was accepted that the pursuer had not given details of every piece of equipment required but there was a general averment that she would need equipment. The defender could make his own enquiries on the costs of items such as the electric wheelchair, scooter and automatic car. The pursuer's expert had not reached a final figure for these costs. In short, the need for mobility aids was mentioned and the defender had been given an ample opportunity to investigate that area.
[17] The need for different accommodation stemmed from the
contention that the pursuer was isolated from the medical and other centres
which she required to attend. These
facilities were in
[18] There were no issues of great difficulty. There was notice of each and every head and sufficient averments notifying the defender of what required investigating. Where gaps existed, this was because the relevant expert had not reached a final view. This was not a reason for withdrawing the case from jury trial given the previous regime where few figures required to be specified.
3. Decision
(a) GENERAL
[19] Rule of Court 43.2.(1) provides that a pursuer in a personal injuries action requires to annex to his summons a:
"brief statement containing - (a) averments in numbered paragraphs relating only to those facts necessary to establish the claim".
However, the form of summons supplied by the same rules (Rules of Court, Appendix, Form 43.2A) has annexed to it a Statement of Claim which does not coincide with the rule. Apart from paragraphs relating to the parties and jurisdiction, it first advises a single paragraph (4) stating "briefly the facts necessary to establish the claim". However, secondly, it goes on to require two further paragraphs, (5) and (6), stating respectively "the personal injuries suffered and the heads of claim" and whether the claim is based on fault at common law or breach of a specified statutory provision. What appears to be required is, first, a single paragraph, using the customary form of pleading, setting out the facts of the accident or other precipitating cause of injury. Secondly, at the commencement of the next paragraph, (5), there should be similarly styled averments stating what injuries have been suffered. The customary rules of relevancy (including fair notice) will be applicable to those pleadings, subject to the new abbreviated styles of averring fault or breach of statutory duty set out in the final paragraph, (6). Thirdly, so far as the actual damages are concerned, in order to satisfy a test of relevancy, all that a pursuer need do is aver the heads of claim. This involves simply specifying that the pursuer seeks, for example: "(1) Solatium...(2) Earnings lost till [date]...(3) Earnings loss from employment he would have obtained...(4) Future earnings loss or failing which, loss of employability on the open labour market...(8) Services that the pursuer is unable to carry out by way of home decoration, gardening and car maintenance..." (see the illustration taken from the supplementary Coulsfield Report in the annotations to Rule of Court 43.2, Parliament House Book Vol. II, C352/3). If the particular amounts for each head are known then they ought to be specified.
[20] If a pursuer complies with the basic requirement of stating his heads of claim as illustrated, then his pleadings will pass what would previously have been regarded as the test of relevancy, at least unless a particular head is not a recognised one. In short, "not much detail is required to establish the basic relevance of claims" (Easdon v A Clarke & Co (Smithwick) (supra), Lord Kingarth at para [14]). On damages, assuming he has adequately described his personal injuries, his pleadings will be sufficiently relevant, in a formal sense, to proceed to enquiry. Of course, if he elects to expand on his heads of claim in his Statement of Claim then the relevancy of those superfluous averments may also have to be tested according to the normal rules of pleading.
(b) DOUBTFUL RELEVANCY
[21] The first issue in this case is whether,
in respect of the two matters complained of, the heads of claim or any
supporting averments are of doubtful relevancy.
If they are, and are allowed to remain upon record, special cause may be
established. However, averments are of
doubtful relevancy only if their relevancy cannot be determined without hearing
evidence (Gillies v Lynch (supra), Lord Macfadyen at para [11].) That is not the case here. In a jury trial, the judge will, in due
course, be expected to direct a jury in general terms as to the function of an award
of damages. He will tell them that: (a) the
basic principle is that the pursuer is entitled to compensation for the loss,
injury and damage caused by the accident; (b) compensation is the amount of money which
puts the pursuer into the same position which he would have been in but for the
accident; and (c) the pursuer is entitled
to the amount of money which is deemed to be reasonable to put the pursuer into
that position. If a head of damage averred
falls within the compass of these principles then it will be a relevant one. Of course, whether the jury will consider that
a particular head is a reasonable one is quite another matter. But the validity of the claim is a matter of
fact and not relevancy.
[22] The pursuer has stated that she would "benefit" from certain treatments. If she proves that, the jury will be entitled to hold that the costs of these treatments should form part of the damages awarded as reasonably incurred to return her, in monetary terms, to her pre accident state. There is no doubtful relevancy. The fact that the pursuer might be able to undergo certain treatments on the National Health Service is of no moment (Law Reform (Personal Injuries) Act 1948 (11 & 12 Geo 6, c 41) section 2(4)). She does not require to elect to undergo any treatment under the NHS. As matters stand, she is entitled to the cost of the treatment (if she proves its reasonableness) even if she might ultimately elect to go down the NHS route. Of course, if it is established that the pursuer will go down the NHS route, that may a different matter. Once again, however, this is a matter of fact to be determined on enquiry and not a matter of relevancy. In order to make a claim for medical treatment, a pursuer does not require to aver that he will not avail himself of the NHS or that the treatment is not available on the NHS.
[23] Similar considerations apply to the pursuer's claim for the
costs of relocating to
then the jury will be entitled to award her the costs of relocation. This again is a matter of fact and not relevancy.
(c) SPECIFICATION
[24] The Rules of Court now require a pursuer to lodge a Statement of Value of his claim. It is relatively clear from the Form provided (Appendix, Form 43. 9) that its content is designed to contain the detail of the averred heads of claim. Whereas the conventional rules of pleadings require a pursuer to make appropriate averments in his summons giving that detail, the new rules do not. Instead, the route which the Court has chosen to follow is to oblige a pursuer to state heads of claim but to value them in the manner provided for in the Form. The general need to provide fair notice still remains, but the rules alter the procedure to be followed to provide that notice. They deem it sufficient, at least in the normal personal injuries case, if the heads of claim are averred and detail of the type illustrated by the phraseology used in the Form is provided. Thus, for loss of earnings, a pursuer is expected to specify in the Form the date from which wage loss is claimed and the weekly, monthly or annual rate of that loss. In relation to future loss, a pursuer is expected to specify the multiplicand and explain how it is calculated. He is expected to state what multiplier he contends for. None of this detail is to be averred in the summons.
[25] The defender does not seek to exclude any of the pursuer's claims from probation. He does not seek any specified order in terms of Rule of Court 43.6.(6) requiring, for example, further specification of a particular claim. He seeks to use lack of specification as "special cause". The contention is that the lack of specification may lead to a sequence of objections which would be particularly undesirable in front of a jury. That contention is a dubious one, especially given the other lines open to a defender to secure appropriate specification under the chapter 43 procedure. Criticisms of specification of heads of damages must apply equally to the allowance of a proof as they would to a jury trial (Easdon v A Clarke & Co (Smithwick) (supra), Lord Kingarth at para [10]). It is not immediately obvious, then, why such criticisms should amount to special cause. The raising of an objection in the course of a jury trial on the basis of lack of fair notice of the nature and extent of a head of damage is not unusual nor is it normally difficult for a judge to deal with any genuine objection based upon that ground with appropriate expedition. In this respect, the type of criticism raised here is some distance away from the argument raised in Boyle v Glasgow Corporation (supra) where the reference to the averments on damages is, to say the least, somewhat passing (see LJ-C (Thomson) at 263).
[26] In determining whether sufficient specification of a head of damage has been given (that is to say whether fair notice of the pursuer's case exists), the Court will, almost inevitably, now have to look outside the averments in the Statement of Claim to the content of the Statement of Value. The Court must make its assessment in the context of the current Rules of Court. In the not too distant past, parties approached a jury trial with no notice of the other side's witnesses and little, if any, notice of the content of any expert reports. It is not surprising, therefore, that so much emphasis was placed upon the precise terms of the record since these were almost wholly determinative of what formal notice would be given. That is no longer the case. Quite apart from the Statements of Value, parties now require to lodge lists of witnesses and productions in advance of the trial and to hold a pre-trial meeting. It is a requirement also that the Statement of Value be accompanied by a list of supporting documents. In this case, an expert instructed by the defender's insurers has, as is now not uncommon, been given the opportunity of actually interviewing the pursuer on the detailed aspects of her current situation.
[27] If a defender complains that he has not been given sufficient detail of heads of damage in a personal injury case then he cannot now simply sit back and, in due course, attack the averments in the summons in isolation. If he is to have a good ground of complaint that he lacks fair notice then he must do so in the context of the current procedural rules, notably in the light of what has happened and what will happen (according to these rules) as regards notice in the course of the litigation. In this case, the defender does have fair notice of the case against him, even if he does not yet have all of the detail which might be available prior to the proof.
[28] On loss of earnings, the pursuer's claim is fairly stated in her averments. Without rehearsing these in their entirety, the pursuer states that she has lost her pre-accident employment and has stated that she will not be able to resume that employment. She says that she is currently unfit for any employment. In her Statement of Value she has given her wage rates and proffered a multiplier for the future. This is adequate notice in a case of the present type where the pursuer's averred disability is so clear. The fact that she may be able to find some work in the future has been raised by the defender. Both parties can no doubt examine that matter and present such evidence as they wish before the jury on that issue.
[29] The only purpose of breaking down the elements of damage in an issue is to enable appropriate rates of interest to be applied to past losses. A pursuer does not have to go down that route. He may simply ask a jury for a single amount, albeit that the court may not then be able to apply such interest. In that situation, there would appear to be no reason for a jury to make a separate award for loss of services, far less that it should take the trouble to divide the amounts for past services between different relatives. The issue of accountability to the relatives may arise between the pursuer and those relatives in due course, but it is not something with which a defender ought to be concerned. It matters not to the defender whether accounting takes place and there is no reason why he should be able to found on a lack of specification of the individual amounts relating to each relative as an objection to the claim. It is noticeable in that regard that no division was actually made in Kennedy v Lees (supra). In any event, even if such a division were desirable or mandatory, an appropriate allocation can be made by the court at the point of applying the jury's verdict, should any party desire that this be done.
[30] The absence of certain figures in the pursuer's Statement of Value is understandable, even if it would have been better if advanced preparation had been carried out to enable approximate figures to be included. Where the pursuer has simply put "n/k" for "not known" against the value of the head of claim, the nature of that claim had been specified and that is, in the circumstances of this case, sufficient. Having had notice that the claim will consist of the particular element, a defender is just as capable as a pursuer of calculating and leading evidence on the costs of that element. In particular, the cost of adapting accommodation and of purchasing and maintaining the aids and equipment specified (including the automatic car) can be assessed by the defender as it can by the pursuer. Equally, given the pursuer's obvious injury in this case, the defender has had adequate notice of the nature and extent of both the care already afforded to the pursuer by her relatives and the future requirements for professional help. All that the pursuer seeks first is an element to represent the amount of assistance afforded to her by her relatives to date. She has averred that she cannot leave her flat unaided. It appears that the services which she is claiming for relate to that type of assistance, i.e. either to help her out of the flat and to assist her in acquiring day to day necessities or to obtain these for her. The pursuer values this part of her claim very modestly and the content of the claim must be regarded accordingly. The pursuer seeks secondly an amount which she will require to pay for professional assistance in the future. She has averred the type of services required. These elements are reasonably easily costed, even if there may be a dispute as to the correct levels. The defender has in fact already taken appropriate steps to meet the pursuer's case in this regard.
[31] Looking at the individual criticisms of specification separately or together, the defender nevertheless has fair notice of the claim he has to meet. Of course, if something surprising threatens to emerge in evidence, which has not been foreshadowed in either the averments or the Statement of Value, a defender is quite entitled to object and to have that objection sustained. There is no reason to suppose, however, that the state of this pursuer's averments and Statement are such that a multiplicity of such objections is likely to arise. There is therefore no "special cause" and I will therefore allow issues.