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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:
________________
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Pursuer:
A E Smart;
Thompsons
Defender: P Milligan;
Simpson & Marwick
27 October 2006
1. Pleadings
and Statement of Value
[1] The
pursuer lives in Peterhead. She sues for
one and a half million pounds in respect of a road traffic accident which
occurred on 11 October 2004. She was twenty nine years of age at the
time. The pursuer avers that, as a
result of the accident, she required to undergo an above knee amputation. She remained in hospital until 23 December 2004, when she was
discharged "to the care of her mother".
Having set out her case in relation to past solatium, the pursuer continues:
"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 Aberdeen. The pursuer will require to relocate to Aberdeen. The pursuer requires care and
assistance. Following the accident, the
pursuer received care and support from her family. She now requires professional care and
assistance with domestic tasks, shopping, leisure activities and social
support. She now requires professional
assistance with painting, decorating and DIY, and will continue to do so in the
future. Her need for such assistance may
increase over time. Her telephone and
energy bills are significantly higher than prior to the accident. The pursuer is socially isolated. The pursuer would benefit from private
clinical psychology treatment for depression, and from physiotherapy treatment
and gait training. At present, the
condition of the pursuer's stump is such that private prosthetic treatment
cannot be commenced, due to the presence of infection. The pursuer would benefit from specialist
private medical and nursing treatment to address the recurrent infections from
which she has suffered since the amputation.
The pursuer requires an electro-mechanical prosthetic leg, a second such
prosthesis and a water activity limb for swimming. The prosthesis will require regular repair
and maintenance with total replacement every five years. The pursuer has incurred and will continue to
incur travelling costs in attending medical and other necessary appointments. The pursuer sold her previous car, which had
a manual transmission, after the accident.
She requires a suitably adapted automatic car, with room to accommodate
a wheelchair. She requires an electric
wheelchair and an electric scooter. The
pursuer was previously independent with regard to travel. She went on holidays on her motorbike. She is
now unable to travel unaccompanied and will incur additional expense in going
on holiday. She requires further aids and
equipment. The pursuer accordingly
claims for (a) past solatium and
interest thereon, (b) future solatium
(c) past wage loss and interest thereon (d) future wage loss (e) reasonable
remuneration for past and future services in terms of section 8 of the
Administration of Justice Act 1982 with interest and (f) miscellaneous expenses
on medication, clothing, mobile phone, travelling expenses, private medical
care, moving home, prostheses, spare prostheses, water activity limb, cosmetic
cover, electric scooter, electric wheelchair, adaptations to car."
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:
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Head of Claim
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Components
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Valuation
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Solatium
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Past
Future
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£166,666.00
£83,333.00
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Interest of past solatium
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Percentage...4%
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£11,671.00
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Past wage loss
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Date from which wage loss claimed
Absent 11/10/2004
to 07/07/06
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
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£16,997.84
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Interest on past wage loss
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Percentage applied to past wage loss
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£1,188.45
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Future wage loss
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Multiplicand 11,573.23
Multiplier to age 65 23.04
Table C
0.94
Multiplier 21.66
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£250,648.00
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Past services - section 8
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£11,360.00
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Interest
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£796.00
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Future services - section 8
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Multiplier 29.92
Multiplicand 1,820
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£54,454.00
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Care
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Multiplicand (estimated) 15,000
Multiplier 29.92
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£448,800.00
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Additional annual expenses
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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
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£182,213.00
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Prosthetics
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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
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£232,478.00
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Accommodation
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Removal costs n/k
Adaptation costs n/k
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TOTAL
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£1,303,428.00
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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 21 November 2005 [No. 6/9 of
process]. This details the pursuer's
account of her condition since the accident, including her current physical and
psychological state. The report deals
with the pursuer's accommodation and mobility.
It considers what she can and cannot do in relation to ordinary day to
day living. It covers the present
provision of care. It has a section on
her employment rehabilitation. The
defender has lodged a care plan, also prepared by a Registered General Nurse on
the instructions of insurers [No. 7/3].
It is apparent from this report that the pursuer has been interviewed,
by someone acting on behalf of the insurers, regarding her past and current
situation. The reports covers the
various difficulties that the pursuer now has and makes certain suggestions
about her future care.
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]).
[5] The pursuer had failed to give adequate specification of her
claim for future loss of earnings. She
did not aver that she would never be fit for some form of work yet she had not
specified what her prospects of such employment were. There was no basis upon which she could lead
evidence of future employment. That
issue was left unresolved on the pleadings.
The defender's solitary averment concerning this matter was admittedly
unclear.
[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 Aberdeen was of
doubtful relevancy. It was an unusual
claim raising a novel point. Her claim
for alterations to her accommodation was lacking in specification, with no
figures being given in the Statement of Value (cf Easdon v A Clarke & Co
(Smithwick) (supra) at para
4). The pursuer had simply put "n/k" for
"not known". This was also what she had
put down for the annual repair and maintenance costs of a prosthesis, the
annual costs of aids and equipment and the provision of an automatic car.
[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.
[13] In relation to loss of earnings, the pursuer had stated her
present condition and the jury would be able to reach a view as to her future. She had averred her past earnings and her
inability to work in her pre-accident employment. Nothing more was required (MacInnes v Owen, 24 November 2004, unreported, MacAulay QC at para [15]; Irvine v Balmoral Hotel Edinburgh [1999] Rep LR
42, Lord Gill at para 8.26). Her
Statement of Value proceeded on the basis that she might not work again. But the matter was uncertain because of the
prosthesis problem. The jury could be
directed on the issue of whether she would return to work. There was nothing unusual in this (Graham v Dryden [2002] Rep LR 105, Lady Paton at para [24]). Uncertainties were not uncommon and a jury
could resolve the various issues on the evidence presented (Stewart v Nicoll 2003 SLT 843, Lord McEwan at para [12]).
[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 Aberdeen, there
being no hospital in Peterhead. A jury
was quite capable of determining whether this was reasonable or not. There was no doubtful relevancy here. Awards had been made for relocation in the
past, such as those where a person required to be nearer family support. The proposed changes to her accommodation could
be assessed in the manner described in Roberts
v Johnstone [1989] QB 878 (see
Kemp & Kemp Quantum of Damage para 16-011). A valuation of the pursuer's existing property
had been lodged as had material on property values in Peterhead. A jury could be directed on the appropriate
approach to what were essentially questions of fact.
[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 Aberdeen. The pursuer has elected to make averments in
support of this head of claim. She
explains that she lives some distance (thirty miles of thereby) from the
medical and other services which she wishes to use to alleviate her
condition. Once more, if she
demonstrates that it is reasonable, within the context of the purpose of an
award of damages, for her to move to Aberdeen in order to be close to those
services
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.
