The Pursuer has a statutory right to have his action heard by a jury unless “special cause” is shown (Court of Session Act 1988 Sections 9(b) & 11(a)). The onus lies with the Defender to establish that special cause exists.
Each case must be considered on its own facts and circumstances. However in the recent case of Colin Annandale v Santa Fe International Services Inc, 29 March 2006, Temporary Judge J Gordon Reid QC referred to the various authorities cited to him in this case and stated that general guidance could be taken as to the issues to be considered when seeking to establish “special cause”.
In the Annandale case the Pursuer was seeking damages of £100,000 following an accident at work in which he suffered various injuries including a severe head injury, facial fractures, lacerations and nerve damage, Post Traumatic Stress Disorder, brain damage and injuries to one of his eyes and ears. His claim consisted of compensation in respect of his injuries as well as a claim for past and future wage loss, loss of pension rights and services.
The Defenders averred the Pursuer had various pre existing conditions and argued that the broad issue here was whether the interplay between the Pursuer’s pre existing conditions and physical disabilities arising out of the accident were of such complexity that they would create difficulties which could not be resolved satisfactorily by a jury. The Defenders submitted there was special cause for withholding the case from trial by jury because of the alleged complexities of the Pursuer’s injuries, the medical issues arising therefrom and the consequent financial claims. The combination of all these issues together, in their submission, constituted “special cause”.
Temporary Judge Reid stated that essentially, “special cause” means some real ground of substance making the case unsuitable for jury trial. Hypothetical difficulties or general considerations would not do.
He went on to say that, looking at the cases to which he had referred, the severity of injuries sustained does not amount automatically to special cause nor does the likelihood of conflicting medical opinion on causation. The leading of technical and complex medical evidence in itself will not make the case unsuitable for jury trial unless it raises a medical question of such novelty or uncertainty that the jury is unlikely to understand it. The mere possibility of some complex medical matter arising does not amount to special cause. Difficulty in ascertaining a Pursuer’s financial position is not special cause nor is the need for the jury to consider more than one multiplier or pension loss. A pre existing medical condition, disability or susceptibility does not constitute special cause. The need to direct a jury on different hypotheses and their consequences does not constitute special cause. The number of questions which a jury must answer is not relevant. However, the complexity of the questions and the confusion which they might create in the mind of the jury is a relevant consideration. Disputes and issues which arise frequently time and time again in personal injury cases are unlikely to constitute special cause.
This is general guidance only and, as mentioned previously, each case must be considered on its own facts and circumstances. Generally, Defenders advance the typical two pronged attack to the suitability of the case for jury trial arguing firstly that the Pursuer’s pleadings are lacking in specification and that the quantum aspect would be too complex for a jury to consider.
In the Annandale case, Counsel for the Defenders accepted technical or complex medical evidence was not sufficient to constitute special cause and did not suggest any of the medical issues were novel, either singly or in combination. They argued that it was the cumulative effect of the various circumstances including the combination of injuries and their impact on solatium, wage loss, promotion prospects, disadvantage on the labour market, the effect of the Pursuer’s pre existing condition, the need for many medical experts in different disciplines and the multiplicity of possible situations. Temporary Judge Reid considered that the pleadings did not disclose anything novel or so uncertain as to be beyond the capability of a properly directed jury whose intelligence should not be under-estimated. He considered the jury would have the benefit of hearing not only the evidence but also the opening and closing arguments of Counsel and the Judge’s charge.
He concluded therefore that the various factual issues in this case when considered both individually and cumulatively were not complex or special to this case. He commented that the heads of claim in relation to the Pursuer’s inability to resume his pre accident work, loss of promotion prospects, fitness or otherwise for work, the restricted range of employment open to him and his pre existing disabilities or conditions were all issues which individually or cumulatively frequently feature in actions for damages for personal injuries. He was therefore not satisfied that the issues raised were sufficient to make the action unsuitable for jury trial. Special cause was held not to have been established here.
In contrast, a case where the Defenders were successful in establishing special cause is the case of Mark Easdon v A Clarke & Company (Smithwick) Limited (2006) CSOH 12. The Pursuer in this case sought damages of £8,000,000 for alleged catastrophic injuries, both physical and psychological, sustained in a road traffic accident.
His physical injuries resulted in tetraplegia and his pleadings offered to prove that he was permanently wheelchair bound, he would be unable to return to any form of paid employment and he would be required to make a number of expensive modifications to his everyday life for which the Defenders ought to be held accountable.
There were a number of significant heads of claim including solatium, past and future loss of earnings, loss of pension rights, sections 8 & 9 services (including 24 hour specialist care), accommodation expenses (the purchase and adaptation of a new home), purchase and renewal of specialist equipment to aid with mobility and care, professional nursing care costs and also specialist fertility treatment tailored to those with spinal cord injuries (at a cost of £15,000 - £20,000).
The Defenders argued that the Pursuer’s pleadings were lacking in specification and that the quantum assessment was too complex for a jury to consider.
In the course of discussion before Lord Kingarth, both parties accepted that the question of specification would arise, jury trial or not. The Defenders’ second argument then became the focus of dispute.
In finding for the Defenders and withdrawing the case from jury trial, Lord Kingarth was careful in his reasoning. He commented that simply arguing that there were a number of heads of claim which may individually or collectively be of significant value would not in itself amount to special cause. He accepted, however, that within those heads of claim, there may be elements which are notoriously difficult “even for a judge to properly assess”.
In the present case, matters of alternative funding sources for the Pursuer’s ongoing care and consideration of the novel question of prospects of fertility treatment would have to be considered. The Defenders were also offering to prove the Pursuer would obtain a degree of functional improvement and this could have implications for the Pursuer’s future care requirements and loss of earnings, possibly giving rise to complex pension loss issues. Taken together, these factors amounted to special cause.
Accordingly, it can be seen that each case should be considered on its individual merits and circumstances. However, it should be borne in mind that the onus lies on the Defenders to show “special cause” in order to rebut the presumption that the Pursuer has a statutory right to have his action heard by a jury.
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Carly Forrest
(Information posted in July 2006 and may not have been updated at time of reading).