|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 12
|
|
|
OPINION OF LORD KINGARTH
in the cause
MARK EASDON
Pursuer;
against
A CLARKE &
COMPANY (SMITHWICK) LIMITED
Defenders:
ннннннннннннннннн________________
|
Pursuer:
Hajducki, QC,Christine; The
Anderson
Partnership;
Defenders: Stacey, QC, Marney; HBM
Sayers (Glasgow);
25 January 2006
[1] In
this action the pursuer seeks damages in the sum of г8,000,000 for injuries
sustained in a road accident on or about
4 July 2003. The action, to which chapter 43 of the Rules
of Court applies, is defended both on liability and quantum. The pursuer, by motion, seeks issues. That motion is opposed, albeit only in
respect of certain questions said to arise from the damages claim.
[2] After
the motion was part heard, the pursuer sought, and was granted, leave to amend
the Record in terms of a Minute of Amendment (and Answers for the
defenders). In addition, at the
continued hearing, senior counsel on his behalf sought, and was granted, leave
to make certain further amendments at the bar (consisting mainly of some
deletions). For present purposes I do
not propose to rehearse the changes made, and shall proceed on the basis of the
pleadings as they now stand.
[3] In
the Summons the pursuer avers that as a result of the accident he suffered
fractures to his cervical spine, resulting in tetraplegia, motor and sensory
complete at the C5 level. He has
suffered a number of significant physical deficits. He will be permanently wheelchair bound. He has suffered psychological injury, in
particular being hypervigilant and experiencing flashbacks of the accident. At the time of the accident he was employed
as a general sales manager, although it had been agreed that he would be appointed as sales director shortly
thereafter. His contract of employment
has now been terminated as a result of his injuries. He has lost and will continue to lose
earnings. It is unlikely that he will
obtain paid employment in the future. He
has suffered a loss of pension rights.
Since the accident his wife and parents have rendered necessary services
to him and he is unable to render personal services at home as he normally did. Claims are made under sections 8 and 9 of the
Administration of Justice Act 1982. The
nature of the services which the pursuer's wife provides is set out in detail,
together with information as to those which were formerly provided by the
pursuer. He claims he will need 24 hour
specialist nursing care and assistance and support for the rest of his life,
and that a care manager will require to be appointed to look after and
coordinate his future care. He has had
to purchase a new home. He incurred
legal and removal costs as a consequence.
He has had to adapt the said new home to make it suitable for his
use. He has incurred costs in doing
so. He will require to purchase and
renew specialist equipment, including adaptation of suitable vehicles. In addition it is said:
"The pursuer and
his wife were expecting their first child at the time of the accident. They had planned to have three children. They still wish to do so. In order to do so the pursuer will require to
have his semen harvested by micro-epididymal sperm aspiration and then stored,
prior to intracytoplasmic sperm injection.
In order to have any effective chance of increasing their family the
pursuer and his wife will require treatment from a centre, such as Bourn Hall
near Cambridge, which specialises
in fertility treatment for those with spinal cord injury. The estimate cost for the cycles of treatment
necessary for each live born child is between г15,000 and г20,000."
By way of summary the heads of claim
are detailed as solatium, past loss of earnings, future loss of earnings,
section 8 services, section 9 services, accommodation expenses, the purchase
and renewal of specialist equipment, loss of pension rights, care and nursing
costs and fertility treatment costs.
[4] A
statement of valuation has been lodged by the pursuer in accordance with Rule
43.9. In it, in addition to valuations
provided for the various heads of claim, there is provided certain additional
factual information. Details, for
example, are given of the wages lost and to be lost. Details are also given of the hours per week
spent by the pursuer's wife in respect of the services provided, and the rate
which the pursuer claims. Details are
given of the hours she is expected to continue to spend in the provision of
services after the care package sought has been put in place, and of the rates
and multiplier which the pursuer would seek to be applied. In respect of loss of pension reference is
made to an actuarial report included with the statement. In respect of care costs reference is made to
a report by William McKinlay included with the statement, and to an annual sum
and multiplier claimed. In respect of accommodation
costs information is given as to the purchase price of the new property and the
sale price of previous property, along with a loss assessed by the application
of 2.5% of the difference over a period said to derive from the Ogden Tables. In addition information is given as to the
full costs of sale, purchase, removal and adaptations; all of which costs are claimed in full. In respect of equipment costs reference is
made to a report said to be awaited. It was, however, accepted before me at the
continued hearing that a detailed and extensive report by Bart Hellier has now
been lodged in this respect.
[5] In
their Answers the defenders aver inter
alia that although the pursuer presently has limited arm/hand movement,
surgery is planned with a view to improving left and right arm function. In any event the pursuer is able to drive an
adapted motor vehicle. He feels able to use
a computer with appropriate software. He
is anxious to return to employment. He
has formulated a business plan with the intention of developing self-employment
in telesales. On the basis of that
business plan he anticipated earnings in order of г15,000 per annum. He is also considering undertaking further
study with a view to enhancing his employment prospects and earning
potential. He is considering undertaking
a Certificate in Business Administration and a Masters Decree in Business
Administration. Each course would take
12 months to complete. With the former
qualification he might reasonably expect part-time earnings of about г20,000
and with the latter about г25,000. Further,
it is said:
"The defenders
understand that Lanarkshire Health Board contributed up to г150 a week towards
Mr Easdon's care package. The
Independent Living Fund contributes г358.90 per week and the Department of
Social Security г237.60 per week."
The defenders' submissions
[6] Special
cause existed for withholding the case from jury trial. In the first place, the pursuer's pleadings
were essentially lacking in specification in a number of respects. This gave rise to a significant risk of
objections to proposed lines of evidence in the course of any hearing, which
was undesirable in the case of a jury trial.
Reference was made to Boyle v Glasgow Corporation 1949 SC 254, in
particular to Lord Justice-Clerk (Thomson) at page 261. Although the Rules made new provision for
what was required in terms of pleadings, it was still necessary to aver the
facts necessary to establish any claim.
Reference was made to Rule 43.2(1)(a) and Higgins v DHL International
(UK) Limited 2003 SLT 1301. Although
it was accepted that a number of areas of concern had been dealt with by the
amendment process (in particular by the deletion of claims for brain injury,
loss of employability and disadvantage on the labour market, and by the
provision of further information in respect of the services provided), there
remained concern as to lack of specification in the Summons. There was, in particular, lack of
specification as to the nature and extent of the 24 hour specialist care being
claimed, and as to why care management was needed. It was unclear if the pursuer's wife's
services would continue in the event any new care package was put in place, and
if so what, presumably lesser, services she would provide. It was unclear what additional costs had been
incurred in the purchase of the new accommodation. There was a lack of specification as to the
adaptations made. There was no proper
specification of the equipment costs claimed or of the claim for pension
loss. Although ultimately it was
accepted that if it was permissible at this stage to look at the statement of valuation
it could not be said that adequate notice had not been given in all these
respects, it was inappropriate to use the statement in that way. It was not part of the pleadings, and was not
binding on the parties. Reference was
made to Practice Note No. 2 of 2003, and to the opinion of Temporary Judge T G
Coutts, QC in Jones v M K
Leslie Limited (19 May 2004).
It was accepted that the opinions of Lady Smith in Millar &c v Watt &c (26 February 2004) and Lord
Wheatley in May v Jeeves Parcels Limited (3 June 2005) appeared to be to the
contrary effect. The decision of Lord
Eassie in Scott &c v Vieregge (22 March 2005) was more equivocal.
[7] Further,
and in any event, the claim gave rise to obvious potential complexity in a
number of respects, such as to make the case unsuitable for trial by jury. There was a significant number of different
heads of claim which the jury would require to assess, most involving
significant sums of money. The defenders
had put in issue the fact that payments were being made from other sources
towards the pursuer's care, giving rise to potentially complicated questions
about the pursuer's entitlement to the private care package which he seeks, and
in any event to the degree to which sums paid from other sources would require
to be deducted. Reference was made to Sowden v Lodge 2005 1 All ER 581. The
claim for the costs of fertility treatment was novel, and of doubtful
relevance. It invited difficult
assessment, involving a degree of speculation.
It could not be said that the pursuer and his wife would have had three
children whatever they may have wished.
There was potential uncertainty as to whether it was right for the
pursuer to claim the full cost of adaptations made to his new house, and
potential confusion between that claim and the claim based on the formula
approved in Roberts v Johnston 1989 QB 878 in respect of the purchase price of the new
accommodation. The application of that
formula was itself not straightforward. The
question of the degree to which hoped for improvements in the pursuer's
function would affect the nature of the care requirement (whether by his wife or
any professional carers) was not straightforward and could give rise to a
requirement for different multipliers to be applied to different parts of the
future care claim, making more complicated the directions which already would
be needed in respect of the Ogden Tables.
Reference was made to Potts v McNulty 2000 SLT 1269. The question of whether the pursuer will be
able to earn reasonable sums in the future had been put in issue, with
particular potential complication for the pension loss claim.
The pursuer's submissions
[8] The
case was suitable for jury trial. A plea
as to lack of specification went to the question of fair notice, and that would
arise whether the case was heard by a judge or by a jury. Reference was made to Currie v Strathclyde Regional
Council Fire Brigade 1999 SLT 62.
Adequate specification had been given in the pleadings, when looked at
along with the statement of valuation.
There was no reason why the latter should not be looked at in this
context. It was not part of the
pleadings, but it required to be lodged, and its supporting reports listed and
made available to the other party. Any
attempt to lead evidence different from underlying factual material referred to
within in it could readily be objected to.
If this was wrong there would be a need to return to old-style pleadings. Senior counsel would in this case, if
necessary, seek leave to amend to include all the factual material contained
within the statement of valuation. The
decision of the Temporary Judge in Jones
v M K Leslie Limited could be
distinguished. Otherwise the balance of
the Outer House authority referred to appeared to support the pursuer's
contention.
[9] The
case did not give rise to complexities which made it unsuitable for trial by
jury. The number (and value) of the
claims was not enough to prejudice the pursuer's right. Although the relevance of the defenders'
averments about alternative funding could be questioned, it was not
inappropriate for a jury to consider whether it was reasonable for the pursuer
to claim the private care package, as compared with any one publicly-funded. It is likely that most of the payments
referred to are means-tested and discretionary, and would not be continued in
the event of the pursuer's success. Any
question as to deductibility could be adequately covered by direction. In respect of fertility costs the pursuer was
seeking to be given the same opportunity to have children as he had had
before. The basic relevance of the claim
(though novel) could not be questioned.
It was the pursuer's position that any improvements in function would
not reduce overall the need for care.
Different multipliers could well be required in respect of elements of
the future care costs but this could be covered by direction. The claims in respect of accommodation costs
could properly be assessed by a jury after careful direction. The same applied to the claim for pension
loss.
Discussion
[10] One of the main concerns of the defenders is in relation to
lack of specification. The essential
basis for such complaint is said to be lack of fair notice. This, as has been said before, would apply
equally to a future proof or jury trial.
Notwithstanding this, the defenders do not suggest that any of the
claims made by the pursuer should be denied probation at all. While this might seem illogical, the
contention advanced - reasonably enough, it seemed to me -was that where there
was an obvious lack of specification, this involved a significant increase in
the risk of objections being taken to the admissibility of evidence, which was particularly
undesirable and inappropriate in the course of a jury trial, for the reasons
given by Lord Justice Clerk Thomson in Boyle
v Glasgow Corporation.
[11] Some of the points originally made by senior counsel were, it
seems, well founded, and were answered in the course of the amendment
procedure. As to what remained it became
clear in the course of submissions that if the statement of valuation could be
taken account of in this connection, the defenders would not seek to maintain
their argument on lack of specification.
The issue thus narrowed to an important point of apparent general
application.
[12] It seems clear that the balance of Outer House authority thus
far tends to suggest that statements of valuation can be looked at in this
context (and this, I note, was accepted by counsel for the defenders in Higgins v DHL International (UK) Limited).
Both counsel before me were agreed, however, that in none of the cases
referred to was it necessary for the matter to be fully explored and it was
observed by Lord Eassie in Scott &c
v Vieregge that statements of valuation,
while no doubt primarily intended to aid settlement, were "of perhaps an uncertain
status." With that observation I would
respectfully agree.
[13] Nevertheless, while it seems clear that statements of valuation
could not be said to form part of the pleadings (despite what was argued on
behalf of the pursuer in Jones v M K Leslie Limited), and while the
basic relevance of the claim or claims made may still require to be tested by
the pleadings, I see no good reason why regard should not be had to such
statements in any question of whether fair notice has or has not been given of
the detail of claims made.
[14] Under the new Rules it seems clear that not much detail is
required to establish the basic relevance of claims. Rule 43.2(1)(a) refers to a brief statement
containing averments "relating only to those facts necessary to establish the
claim." It might be thought that these
words would apply to the clause or claims for damages as well as to the merits,
but the indications within Form 43.2A (which is the form for the Summons) are
that these words apply to the merits of the claim. One paragraph of the form requires the pleader
to "state briefly the facts necessary to establish the claim". In a separate paragraph it is provided that
the summons should "state briefly the personal injuries suffered and give names
and addresses of medical practioners and hospitals or other institutions in
which the person injured received treatment."
Although the form of summons does not, perhaps surprisingly, refer to heads
of claim arising out of the personal injuries suffered, one example of a
statement of claim given in the Supplementary Report of the Working Party on
Court of Session Procedure, which is reprinted in the notes to the Rules of
Court, includes a numbered paragraph in which the heads of claim are itemised (with
a suggestion that amounts claimed could be inserted, if known).
[15] All of this would seem entirely consistent with the apparent
wishes of the Working Party, referred to in Practice Note No. 2 of 2003, that: "Essentially therefore, we agree what is necessary
is a method of pleading which encourages brevity and simplicity and discourages
technicality and artificiality". In
addition, however, there is specific provision in Rules of Court 43.9 and
43.6(1), for the making and lodging in process by each party of a statement of valuation
of claim, and that by particular prescribed dates. No doubt the main purpose of this requirement
is to aid settlement of claims, but it seems clear that in addition to the
valuations made it is envisaged that further factual information will be
provided. Form 43.9 (the form for such
statements) envisages, for example, detail being added as to the date from
which wage loss is claimed, and as to the rate claimed. Provision is made also, for example, for information
as to the "nature of services", and as to the person by whom services are
provided and the hours per week. In
short, it seems clear that it is anticipated that the basic factual averments
made in any summons will be supplemented by further factual detail in the statement
of valuation. In addition of course each
statement of valuation is required to include a list of supporting documents,
which are to be available for inspection by the other party (Rule 43.9(2)-(5))
[16] Practice Note No. 2 of 2003 states (in relation to Rule 43.9):
"The statements
of valuation required by this rule are not binding upon the parties who make
them. It is, however, intended that these statement should reflect a real
assessment of the value of the claim and accordingly it will be open to either
party to found upon the making of its own statement or valuation or upon that
of the other party".
Given the primary purpose of such
statements, it is, in my view, not unreasonable to read the first sentence
above as primarily intended to relate to the valuations put by either party on
the claim, or elements of the claim, (so that, for example, in light of the
evidence ultimately led, neither is barred from suggesting a higher or lower
assessment). On the other hand, I see no
good reason why one party should not be able to "found upon" the statement made
by the opposing party by objecting to any attempt to introduce evidence which
would conflict with any basic factual information set out. Indeed, I would expect any court faced with such
an objection to proceed on the basis that the other party was reasonably
entitled to regard such a statement as giving notice of the case they should
prepare to meet. In the course of the
debate before me counsel for the defenders appeared to accept that the
pursuer's statement of valuation could be so founded upon. If that is so, it seems to me to be illogical
and unrealistic to argue that such a statement should not be looked at at this
stage in judging the question of fair notice.
Although counsel was concerned that such an objection might not be so
readily determined in the course of a jury trial as in a proof, I am not
persuaded that that should be so. By
contrast, I agree with senior counsel for the pursuer that if the defenders are
correct the implications are that there would need to be detailed pleadings of
the old-style before a pursuer could be certain even of obtaining a proof in
the face of claims of lack of specification, which cannot be right. And in a case such as this it would, in my
view, be absurd to contemplate giving the pursuer leave to repeat by Minute of
Amendment the matters already referred to in the statement of valuation.
[17] For these reasons I am not persuaded by the defenders'
remaining arguments in respect of lack of specification in this case.
[18] On the other hand, there are, in my opinion, a number of
factors, in particular when taken together, which would render this case
unsuitable for trial by jury. The
question off assessing potential complexity at this stage must to an extent
always be a matter of judgement. This is
particularly so in light of the more exiguous pleadings required by the new
Rules, and where the Rules envisage that a question such as this ought to be
capable of resolution on the motion roll.
[19] I agree with counsel for the pursuer that the fact that the
pursuer has suffered apparently catastrophic injury and that there are a number
of claims, with, individually and collectively, significant value, does not of
itself amount to special cause. Nevertheless,
injuries of this nature do often lead to claims containing elements which are notoriously
difficult even for a judge properly to assess, and in my view, senior counsel
for the defenders was right to suggest that there are a number in this case.
[20] The defenders' averments about funding being provided by
alternative sources for the pursuer's care, although not as clear as perhaps
they should be, could, in my view, give rise to difficult questions as to
whether it is reasonable for the pursuer to claim the private care package (or
at least the whole such package) which he seeks (see Sowden v Lodge). Further it is not clear how much now being
funded would be deductible in terms of the Social Security (Recovery of
Benefits) Act 1993, and if some elements are not, what the position would be in
relation to deductibility (see e.g. McEwan & Paton on Damages for Personal
Injuries in Scotland,
Second Edition, at page 114). Although
the relevance of the defenders' averments did seem to give rise to some concern
so far as senior counsel for the pursuer was concerned, he accepted (as he had
to) that the motion before the court was for issues on the present pleadings. He seeks no specific order under Rules 43.6(5)(d)
and 43.6(6) for refusal, whether after procedure roll or otherwise, of
probation to any specific averments made by the defenders. Moreover, in relation to the claim for
fertility treatment costs, while the basic relevance of the claim may be
difficult to impugn, (it seems that the pursuer is seeking to be put in a
position at least to try for the family he and his wife always wanted), it is a
claim which both counsel accepted was novel, and could give rise, it seems to
me, to difficulty in the assessment of the prospects of the pursuer and his
wife being successful when they first attempt any such treatment, and even if
they are, of them proceeding with any further course or courses of
treatment. In addition, the question of
the pursuer obtaining functional improvements which could effect the nature of
his care requirement (whether by his wife or professional carers) has been put
in issue, and could (it was accepted) give rise to a requirement that different
multipliers be applied to different parts of the future care claim - making
more complex the directions which will already need to be given in relation to
the application of the Ogden Tables, and may make even more difficult the
always difficult question of what any pursuer - under reference to the sort of
report on which the pursuer would seek to found - is reasonably entitled
to claim in respect of equipment costs.
As to accommodation costs, it is clear that the pursuer is not seeking
to claim the full additional capital costs involved in the purchase of his new
home. Rather he would invite assessment
of the extra costs of funding the difference, in accordance with the approach
approved in Roberts v Johnston. On its own, this may be an approach which a
jury, properly directed, could reasonably well assess, but the question could
well arise in relation to whether, in respect of the adaptations (where the
full capital cost, said to be г30,000, is claimed) it is right for the pursuer
to claim that full cost or whether (where such adaptations may or may not add
to the value of the property) a similar approach should be adopted in whole or
in part as in relation to the capital purchase cost. The potential relationship of the two
approaches is at least something which, in my view, could be a source of
confusion. As to wage loss, the pursuer
claims that he is unlikely to work again.
The defenders have put in issue the question of whether, with retraining,
he would be able to obtain some reasonable income. That of itself (as was accepted) may not mean
that a jury, properly directed, would not be well able to assess the loss of
earnings claim, but I tend to agree with counsel for the defenders that the
prospects of the pursuer returning to reasonably well paid employment could
give rise to complexities for the claim for the pension loss.
[21] In all these circumstances, I am satisfied that the potential
complexity of elements of the damages claim, particularly when considered
together, is such that special cause exists for withholding this case from jury
trial. I shall instead allow a proof.
