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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 170
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PD426/07
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OPINION OF LORD EMSLIE
in the cause
KEVIN O'NEILL
Pursuer;
against
DOWDING & MILLS
plc
Defenders;
and
DAVID W SMITH LTD
Third Party:
ннннннннннннннннн________________
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Pursuer:
McNaughtan; Digby Brown,
Defenders: Watson, Solicitor Advocate; Simpson & Marwick, WS
Third Party: Bennett;
HBM Sayers
19 October 2007
Introduction
[1] On 5 April 2004 the
pursuer sustained serious injuries to his right lower leg when he fell through
a gap in a walkway in the course of his employment with the defenders. His present action of damages against the
defenders is founded on allegations of both common law fault and breach of
statutory duty on their part. In
response the defenders concede liability to the pursuer, while at the same time
pleading what they term a "right of relief" against the third party whose
employees are said to have created the gap in the walkway without warning
anyone of its presence.
[2] As
regards quantification of his loss, the pursuer's averments in
condescendence 5 are inter alia
to the following effect:
"... He continues
to experience pain. He still limps. He has difficulty in negotiating stairs and
rough ground. He has developed post
traumatic osteoarthrosis of the right ankle joint. It is likely that he will require further
surgery within two to four years. His
ankle is likely to deteriorate. He may
require to undergo a fusion operation.
... As a result of the accident the
pursuer was unable to return to work until late December 2004. Following his return to work he continued to
suffer from pain in his right ankle. He
required to take time off work as a result of that pain. In September 2006 he was signed off work as a
result of his ankle pain. He has not
worked since that time. He has lost and
continues to lose earnings. In light of
the pursuer's poor prognosis, it is likely that he will continue to lose
earnings in the future. The pursuer has
suffered and will continue to suffer from a loss of pension rights. At the time of his accident the pursuer and
the defenders contributed to an employers' pension scheme. The pursuer has received reduced pay from the
defenders since September 2006. Employee
and employer contributions to the pension scheme have continued since that
date. However, the pursuer's pay has
been fixed at the pre-accident level of г21,827 a year. His Final Pensionable Salary will be
г21,827.58 a year. As a result of the
pursuer's poor prognosis it is likely that he will require to leave his current
employment. When he does so he will
require to leave the defenders' pension scheme."
[3] The
pursuer now moves for the allowance of issues.
That motion is opposed by the defenders and third party, who maintain
that special cause exists for withholding jury trial under section 9(2) of
the Court of Session Act 1988. They take
no point regarding any uncertainty as to the grounds on which liability is
conceded by the defenders in favour of the pursuer, nor as to the nature of the
right which the defenders assert against the third party. Instead they advance two interlinked
arguments founded on (i) alleged lack of relevancy and/or specification of the
pursuer's averments on the subject of his future employment and earnings
potential; and (ii) the general
complexity of loss calculations required on both future earnings loss and loss
of pension rights.
The parties' submissions
[4] The position adopted by counsel
for the pursuer was straightforward. Starting
with pension loss, he maintained that its assessment would not be as complex as
his opponents suggested, and to illustrate that he referred me to the 4-step
calculation in Mr Pollock's report no.6/8 of process. A pension loss claim would not of itself be a
bar to jury trial, and in this case there was no reason to think that a jury
would be unable to follow the calculations required.
[5] More
generally, Robertson v Smith 2000 S.L.T. 1012 was a case in
which the Inner House had allowed a personal damages claim to go to jury trial
notwithstanding the involvement of the Ogden Tables. Moreover, as in this case, the defenders had
raised no special complexities in their own pleadings. Robertson
should therefore be held indistinguishable for present purposes. Valuable guidance was also to be obtained
from the decision of Lord McCluskey in Reid
and Others v BP Oil Grangemouth
Refinery Ltd (8 May 2001, unreported).
That decision confirmed that the involvement of the Ogden Tables was not
of itself sufficient to exclude trial by jury, and that with the assistance of
evidence, speeches and charge a jury should have no real difficulty in handling
multipliers and multiplicands. Criminal
juries often had to follow and apply complex expert evidence, and the position
on the civil side was no different.
[6] In
answer to questions from the bench, counsel for the pursuer conceded that he "...
could not really say" what was going to happen to the pursuer in the future, or
what his plans might be. In that
context, he referred me to Mr Briggs' orthopaedic report No.6/5 of process
which, as at 5 May 2006,
bore to confirm the significant state of uncertainty which existed in this
area. According to counsel, the
evaluation of such uncertainty would be a jury question, bearing in mind that
some continuing wage loss was plainly in prospect. Furthermore, it was said, the future position
was liable to have crystallised by the date of any jury trial, and would then
involve either (i) continued employment with the defenders in some capacity,
with or without promotion; or (ii)
employment elsewhere; or (iii) a continuing
state of uncertainty. A jury would not have to evaluate the
pursuer's claim on more than one of these hypotheses, and beyond that it could
not be said that the 6th edition of the Ogden Tables introduced any
new complexity beyond that which had been considered by the Extra Division in Robertson and by Lord McCluskey in Reid.
[7] In
response, the defenders and third party began by maintaining that the pursuer's
averments were "brief to the point of being terse". There was no indication as to where, or in
what capacity, he might be employed in the future, or even as to whether he
would ever be fit to return to work. Put
shortly, the basis for his alleged continuing loss of earnings remained wholly
unexplained. On the pleadings as they
stood, which had to be the primary focus for the court in judging "special
cause", there was an obvious risk of "myriad objections" if the pursuer sought
to lead evidence along any particular line.
It was not even possible to derive assistance from other documents in
the case. For instance, the pursuer's
orthopaedic report was now eighteen months old;
that left open the question of whether fusion of the pursuer's ankle
would be required; and it broadly
confirmed the real uncertainty regarding the pursuer's future employment
prospects. Interestingly, that report
did not bear to have been relied on in the pursuer's own Valuation of Claim,
which seemed to proceed on the footing (contrary to his averments) that he
would never work again in any capacity.
Strangely, the Valuation contained no allowance for future contingencies
other than mortality. In all the
circumstances, it was said, the defending parties were currently denied fair
notice of the case against them as regards both future earnings loss and loss
of pension rights, and there was no basis in the pursuer's averments for the
leading of evidence on any particular hypothesis in due course.
[8] On
the subject of complexity, the defenders and third party drew my attention to
the 6th edition of the Ogden Tables, and in particular to the
extensive explanatory notes which (at para.31) bore to describe "one method" of
allowing for future contingencies other than mortality. Although the complex adjustments which followed
would require evidence as to inter alia
educational attainments and the presence of absence of "disability" at the date
of the accident, the pursuer's averments in this case made no mention of such
matters. In addition, as regards any
offset for the pursuer's future earnings or employment potential in his injured
state, whether with the defenders or elsewhere, the pleadings were substantially
silent. There was no offer to prove how
long the pursuer might expect to be off work;
whether he might undergo retraining, and if so over what period; what sort of work he might be fit for; or the level at which such work might be
remunerated.
[9] Against
that background, this was not a case in which calculations using the Ogden
Tables would be straightforward. On the
contrary, they were liable to involve complex mathematical processes, taking
account of numerous variables on which there were currently no averments. The present case was thus readily
distinguishable from Robertson, where
an Extra Division had approved issues notwithstanding the involvement of (an
earlier addition of) the Ogden Tables.
Significantly, the court there made it clear, at paragraphs [4] and
[9], that their decision was specifically limited to a situation in which the
pursuer would never work again and in which the necessary future loss
calculations would therefore be relatively uncomplicated.
[10] More closely in point, it was said, was my own decision
refusing issues in Slessor v Vetco Gray UK Ltd and Others 2007 CSOH 59.
There (as here) the pursuer's averments
left the matter of future loss largely uncertain and unexplained; other documents in process presented
different and inconsistent pictures; and
a multiplicity of complex calculations would foreseeably be required under the
latest (6th) edition of the Ogden Tables. That edition, it was said, reflected "a sea
change" in the authors' approach by comparison with earlier editions, and in
particular (i) introduced new and different variables to be allowed for in
future loss calculations, and (ii) envisaged multiple calculations, with split
multipliers, to reflect promotion prospects or a change of job.
[11] On pension loss, Mr Pollock's report for the pursuer
contained an over-simplified "4-step" calculation, which in truth involved a
number of variables at each stage.
Notwithstanding the pursuer's averments, Mr Pollock's calculations
appeared to assume that the pursuer would never work again, and his penultimate
paragraph left in the air the question whether any offset for residual working
capacity would require further detailed calculation or merely "pragmatic
adjustments". Of more interest, it was
said, was the complexity of the different hypothetical calculations which
appeared in the defenders' report from Mr Blyth no.7/1 of process. None of these hypothetical calculations could
be described as straightforward, and none could be attempted without full
access to the Ogden Tables and to the explanatory notes and definitions without
which they could not be used. In the
comparable case of Potts v McNulty 2000 S.C. 1269, Lord Wheatley
had refused issues on the ground that the likely complexity of pension loss
calculations, coupled with a lack of necessary specification in the pursuer's
averments, constituted sufficient "special cause" for the purposes of
section 9(2) of the 1988 Act.
[12] In all the circumstances, it was said, the paucity of
information in the pursuer's pleadings, combined with the obvious complexity of
the future loss calculations which were liable to be required, rendered the
present case unsuitable for trial by jury.
Discussion
[13] Having taken time to
consider the parties' competing submissions, I have reached the conclusion that
this case is unsuitable for jury trial, and that special cause for withholding
issues has been made out for the purposes of section 9(2) of the Court of
Session Act 1988. Clearly the fact that
the Ogden Tables will require to be applied is not, of itself, a sufficient
reason for denying trial by jury. Indeed
the defenders and third party made no such suggestion. On the other hand, looking at matters on a
practical commonsense basis, it seems to me that even a personal damages action
may involve such a degree of complexity that only a proof in front of an
experienced judge would be appropriate.
At a proof the judge would have the benefit of full submissions on both
legal and factual issues, including the proper application of different parts
of the Tables and the treatment of matters which these Tables do not directly address. A judge would also be in a position to derive
the fullest assistance from the explanatory notes in the Tables themselves, and
would have the facility of taking time to consider all issues carefully before
pronouncing a reasoned, and thus reviewable, decision. Trial by jury would, I think, have none of
these advantages.
[14] In the present case, an initial difficulty for the pursuer is
the general lack of averments sufficiently relevant and specific to give fair
notice of the likely nature and extent of his future loss claims. His future employment potential remains substantially
unexplained, and there is no means of telling what sort of evidence he will
ultimately seek to lead. His recent
Valuation of Claim appears to proceed, without foundation on Record, on the
hypothesis that he will never work again, and moreover that calculation makes
no allowance for contingencies other than mortality. Mr Pollock's pension loss report appears
to proceed on a similar hypothesis, whereas the (somewhat dated) orthopaedic
report from Mr Briggs tends to confirm the significant continuing
uncertainties which arise in this area.
In my opinion these uncertainties, and the consequent lack of notice to
the defending parties in the pleadings, are of themselves powerful considerations
favouring proof rather than jury trial.
The pursuer does not even aver his educational attainments and
disability status which would be essential to any assessment of contingencies
under the 6th edition of the Ogden Tables. To allow issues in such circumstances would
in my view be an unwise and inappropriate step for the court to take. Attempts to resolve such uncertainties and
omissions in the course of a trial could very well lead to objections and
adjournments, and the undesirability of such a situation has often been
judicially noted.
[15] It is of course possible, as counsel for the pursuer pointed
out, that by the date of any inquiry the position regarding the pursuer's
future will have become clearer, and might even be the subject of amended
pleadings in that area. In terms of
chapter 43 of the Rules of Court, however, the present motion for issues
must be heard and determined at this stage, and for that purpose the court can
only proceed on an assessment of the pleadings as they currently stand, taken
together with such further documents as may be commended to the court's
consideration. In my judgment the
hypothetical possibility of improvement in the future is insufficient to
justify what would amount to a leap in the dark at the present time. For all I know, the situation may become even
more difficult and uncertain by the date of any inquiry, and I do not consider
that trial by jury can properly be allowed in the face of such obvious risks. The averments in support of the pursuer's
claim for continuing future loss are, in short, of doubtful relevancy and
insufficiently specific to entitle the pursuer to lead evidence along any
particular line.
[16] As regards the likely complexity of the calculations which are
liable to be required, I start by noticing that the pursuer's Valuation of
Claim bears to proceed upon an application (however incomplete) of the Ogden
Tables, and that the parties' respective pension loss reports do likewise. In addition, two out of the three possible
scenarios outlined by counsel for the pursuer, and narrated in paragraph [6]
above, would lend themselves to multiplier/multiplicand calculation bringing
the Ogden Tables into play. Admittedly
the third scenario, namely a continuing state of uncertainty, might not, but
more importantly counsel suggested no fourth scenario whereby the pursuer would
never be able to work again in any capacity.
Against that background, it seems to me that the decision of the Extra
Division in Robertson can readily be
distinguished, since it expressly proceeded on the basis that, since the
pursuer there would never work again, the necessary future loss calculations
would be relatively straightforward. To
my mind the emphasis which the court placed on these special circumstances is a
striking feature of the case, and I suspect that if such special circumstances
had not been present the outcome might well have been different.
[17] Similarly, in my view, the decision of Lord McCluskey in Reid can readily be distinguished for
present purposes. It concerned a family
claim on the death of a man through disease sustained in his work, and thus
involved calculations considerably less complex than those which are in
prospect here. In particular there could
have been no question, in that case, of a complex offset for post-accident
earnings or earnings potential having to be assessed, and in a sense Reid was on all fours with Robertson in that the deceased would
obviously never work again. In any event
I do not, with respect, derive much assistance from the observations of Lord
McCluskey regarding the capacity of juries in general to cope with difficult
issues. In the first place, since each
case must turn on its own particular merits, these observations may be presumed
to relate to the circumstances of the family claim which was under
consideration. Even if I am wrong about
that, however, and the remarks are thought to be of wider application, I still
do not find them particularly helpful here.
The supposed ability of juries to deal with what tended to be broader
assessments of damages in past decades seems to me to shed little light on the
prospect of a jury coping with the evaluation of seriously uncertain future
employment potential by reference to the 6th edition of the
Ogden Tables. Similarly, there is in my
view little to be gained from a comparison between civil and criminal juries in
this context. No one would dispute that
criminal juries regularly deal with difficult issues, and sometimes require to
assess expert evidence, but the important point is surely that criminal juries
are not expected to undertake damages calculations at all, far less
calculations to the degree of actuarial precision and complexity which the
Tables now require.
[18] Although, as I have already acknowledged, the matter of
"special cause" must be judged on the individual facts and circumstances of a
given case, it seems to me that some parallels can be drawn between the present
case and my recent refusal of issues in the case of Slessor. The most striking
of these parallels is, of course, the significant continuing uncertainty which,
on an assessment of the pleadings and of other available documents, affects the
whole chapter of future loss. In the
circumstances of this case also, I am satisfied that application of the Ogden
Tables would be a source of real difficulty in the context of a jury
trial. Over and above the fact that
complex actuarial evidence might be difficult for a jury to follow, I am struck
by the multiplicity of calculations which would need to be attempted, the
difficulty of identifying appropriate multipliers, and above all the difficulty
of dealing with the contingencies, as yet unidentified, for which allowance
would have to be made. Whatever evidence
might be led on such matters, the necessary assessments would remain within the
province of the jury and all decisions would be theirs to take. While "one approach" to the task of adjusting
for certain contingencies finds expression within the Tables themselves, other
possible approaches are not discussed, and the Tables are silent as to the
basis on which additional contingencies might be factored in. Separate and different multipliers would in
my view be required in order to calculate (i) the pursuer's likely earnings
potential if the accident had not occurred, (ii) the necessary offset for
residual post-accident earning capacity, (iii) the claim for pension loss, and
(iv) the services claim presented under section 9 of the Administration of
Justice Act 1982. As regards future
earnings loss in particular, the first two of these calculations would require
consideration of split multipliers in terms of the Tables in order to reflect
job changes, promotion (mentioned as a possibility by Mr Pollock), wage
rises or other such developments. In addition,
the task of adjusting for contingencies would not in my view be an easy one,
bearing in mind inter alia the
existence of contingencies for which the Ogden Tables contain no specific
provision, and the recognition in the explanatory notes that only one possible
method of adjusting for contingencies is put forward.
[19] Against that background, it seems to me that any jury may be
expected to encounter severe difficulty in trying to assess the pursuer's
future loss claims. Over and above that,
I consider that the task of charging a jury in this case would present
formidable difficulties for even the most experienced judge, and mutatis mutandis I regard the general
remarks at paragraph [24] of my decision in Slessor as being of equal application here. In my view it would not be a responsible
exercise of the court's powers to allow issues where such problems can readily
be foreseen. Like Lord Kingarth in Easdon (referred to at
paragraph [8] of my decision in Slessor),
and Lord Wheatley in Potts, my conclusion
is simply that, in the particular circumstances of the present case, the likely
complications and complexities affecting the evaluation of future loss are
sufficiently great to constitute "special cause" for withholding jury trial
under section 9(2) of the Court of Session Act 1988.
[20] On re-reading my opinion in Slessor,
I note that per incuriam I did not explicitly
distinguish the case of Reid to which
I was then referred. For the avoidance
of doubt, however, my views on the decision at that time did not differ from
the views set out in paragraph [17] of this present opinion. I am also inclined to think, on reflection,
that certain observations which appear in paragraphs [17] and [18] of my
decision in Slessor might have been
more clearly expressed. In particular,
the references there to "additional" and "commonplace" contingencies which the
Ogden Tables do not cover were primarily intended to reflect essential
qualifications which appear throughout the Tables themselves. Paragraphs 14, 15 and 17 of the
introduction, for instance, and paragraphs 20, 29-32, 36, 42-3 and 90 of
the explanatory notes, expressly acknowledge (i) that the tabulations and
adjustments proposed clearly cannot cover all possible situations, and (ii)
that in many cases there will be a need to cater for contingencies falling
outwith the legitimate scope of the "average" approach under which "an initial
adjustment" is proposed by reference to age, employment status, disability
status and educational attainment alone.
In my view these qualifications were significant in Slessor, and are significant here, because of the degree of
uncertainty surrounding the issue of future employability in each case.
Disposal
[21] For all of these reasons,
especially when they are viewed in combination, I shall refuse the pursuer's
motion for issues, and allow parties a proof of their respective averments on
the outstanding matters of (i) quantum
and (ii) the responsibility (if any) of the third party.
