15 March 2018
The recent opinion of Lord Brodie in the case of Joseph Glen v Lagwell Insulation Company Limited, [2017] CSOH 153 addresses the recurring issue of whether a case involving future losses is to be regarded as suitable for determination by a jury.
The first point to bear in mind here is that it is a pursuer’s statutory right to have their personal injury damages action tried before a jury. The onus lies upon the defender to displace that statutory right which can only be done where ‘special cause’ is shown. ‘Special cause’ has generally been held by the courts to be something that is a particular feature to the case under consideration as opposed to a consideration which is general in character.
In Glen, the pursuer, an apprentice thermal insulation engineer, suffered traumatic amputations of the tips of the index, middle and ring fingers of his left hand when using an unguarded guillotine. Liability was admitted. The quantification of damages was the sole issue in dispute. The pursuer offered to prove that had the accident not occurred he would have followed a career as such an engineer; that because of the injuries he was no longer able to continue in his intended career path and that it was likely he would secure alternative employment at a resultant lower skill level. The effect of this would lead to a loss of income of just over 40% per annum compared to what he would likely have earned but for the accident. He also argued that his job security was reduced as a result of his disability.
The defenders’ principal argument was that the case was not suitable for a jury on account of the complexities arising from the selection of the appropriate multiplier for calculating (i) his life-time earnings but for the accident and; (ii) his life-time earnings in lower skilled alternative employment.
Lord Brodie found that ‘special cause’ had not been established. He thus rejected the defenders’ argument that the wage loss claim was so complex that it required to be determined at Proof. He commented that there was nothing inherently complex in the pursuer’s claim for future wage loss. He therefore allowed the pursuer’s motion for the case to be heard by a jury.
In Lord Brodie’s commentary he noted that there was no question of assessing a split multiplier as proposed by the defenders. He did not find the issue of whether the pursuer was considered as “disabled” to be so difficult to render the case unsuitable for jury trial. He accepted that the trial of a claim for future wage loss under reference to the Ogden Tables was likely to be a more demanding exercise for all those concerned before a jury than a proof before a judge. He commented, however, that this could be addressed with full and precise explanations in Counsel and the Judge’s speeches and directions to the jury respectively.
The decision in Glen is another example that the routine complexities of applying the Ogden Tables in assessing multipliers for future loss claims will, in itself, not suffice to establish ‘special cause’. There has to be something more than this. Defenders thus require to carefully consider whether to oppose a motion for trial by jury to be sure that there is something out of the ordinary in the case which might be fairly anticipated to perplex a jury.
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Joanne Farrell |