Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 182
PD/724/11	OPINION OF LORD STEWART in the cause (1) CLAIRE BURNS as an individual and as mother and guardian of ALYSSA BURNS, (2) HENRY HOWIESON, (3) MARGARET HOWIESON Pursuer; against BOOTS UK LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuers: A C Forsyth, advocate; Watermans

Defenders: P Reid, advocate; Simpson & Marwick

10 November 2011

[1] This is a personal injury action governed by Chapter 43 of the Rules of the Court of Session [RCS]. On 12 October 2011 I heard the Defenders' motion in terms of RCS 43.5 for the action to be withdrawn from Chapter 43 and to proceed as an ordinary action. Counsel for the Defenders submitted that there were "exceptional reasons" in terms of RCS 43.5 (2) and (3) in particular (3)(a) "the likely need for detailed pleadings" and (3)(c) "any other relevant circumstances", namely the likelihood that one or more of the claims would be dismissed for irrelevancy at Procedure Roll.

[2] The motion was opposed by Counsel for the Pursuers. Having heard Counsel for the parties I indicated that I intended to refuse the motion. It is appropriate to record the reasons for my decision because they have a bearing on future procedure.

[3] The averments for the Pursuers disclose the following circumstances. The First Pursuer went shopping in Dundee with her two children and her parents. The younger child Alyssa was an infant aged 20 months. She was in a child buggy. The First Pursuer and her father the Second Pursuer went into the Defenders' store leaving the children in the care of their grandmother, the Third Pursuer, outside.

[4] A rolling pin fell from a third floor window of the Defenders' store striking the infant on the head as she sat in her buggy and fracturing her skull. The grandmother took the infant into her arms. The mother saw this and ran outside. The infant was screaming. The grandfather was also present and picked up the rolling pin.

[5] The mother claims for the infant's injuries. The mother also claims as an individual for distress and alarm and various mental symptoms. The grandfather claims for various mental symptoms. The grandmother claims for various mental symptoms.

[6] The Defences as adjusted admit liability to make reparation for the injury to the infant. Beyond that the Defences deny liability. The Defenders aver that the other claims are too remote; that the mother as an individual, the grandfather and the grandmother do not have justiciable claims; that they are "secondary victims"; and that emotional reactions suffered by secondary victims do not give rise to liability for damages.

[7] The submissions turned largely on the question whether the mother, grandmother and grandfather could possibly make a relevant case. Reference was made to Page v Smith [1996] 1 AC 155, particularly at 197E-H per Lord Lloyd of Berwick; Rorrison v West Lothian Council 2000 SCLR 245; Campbell v North Lanarkshire Council and Anr 2000 SCLR 373; Anderson v Christian Salvesen Plc 2006 SLT 815; Donald v McDonald [2006] CSOH 43 (14 March 2006). The first four cases are about liability in negligence for psychiatric injury without physical injury. The last case, Donald, is an example of a "most regrettable" Chapter 43 action that failed spectacularly at proof and would necessarily have been dismissed at Procedure Roll for irrelevancy if it had been allowed to proceed as an ordinary action.

[8] In relation to the present proceedings, parties agree that there is no liability to compensate "secondary victims" unless such victims satisfy the requirement of "proximity" by (1) a close tie with the victim of the accident; (2) nearness to the incident in time and space; (3) direct experience of the incident. The incident can include not only the accident but its immediate aftermath.

[9] Counsel differ as to the meaning of "secondary victim". Counsel for the Pursuers understands "secondary victim" to mean a person not at risk of physical injury who suffers reasonably foreseeable psychiatric injury. Counsel for the Defenders understands "secondary victim" to mean a person not at risk of physical injury who suffers psychiatric injury which may or may not have been reasonably foreseeable. Counsel for the Defenders submitted that detailed pleadings are necessary to ascertain whether "the circumstances of the accident" bring the Pursuers within the ambit of reasonable foreseeability: as a rule secondary victim cases would be "exceptional" within the meaning of RCS 43.5 because of the need for "detailed pleadings".

[10] Counsel for the Defenders makes the further point that mere shock and emotional upset occurring to secondary victims is not compensable: only psychiatric injury in a technical sense, i.e. a condition to which a recognised diagnostic label attaches, can attract damages [Rorrison at 250C-D citing White v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509]. Counsel submitted that detailed pleadings are required on this point.

[11] Whatever the meaning of "secondary victim" it seems to me that the most important question, namely whether there was a duty relationship between the Defenders on the one hand and the mother, grandmother and grandfather respectively on the other, is one that cannot be answered without hearing the evidence. As Counsel for the Pursuer put it, this is the kind of case in which questions of relevancy have to be reserved for answer after proof.

[12] Counsel for the Pursuers accepted the point about diagnostic classification and addressed the issue by saying that expert reports had been obtained for the mother and grandfather. On the basis of these reports the Summons would be adjusted to aver that each of these Pursuers suffered from "post-traumatic stress disorder".

[13] The position of the grandmother was different. She was a "primary victim" in that she was standing beside the injured infant and was within the range of foreseeable physical injury. Primary victims, Counsel submitted, are entitled to compensation for shock and emotional upset. I do not have to decide whether this is correct as stated: Counsel for the Defenders accepted that it would possibly be easier to aver a relevant case for the grandmother if she were a primary victim but insisted that there was nothing in the pleadings that came close to showing that the grandmother was a primary victim. I disagree. On the pleadings she must be, potentially, a primary victim. I note that, as Counsel for the Pursuer pointed out, proof before answer was allowed in the well-known case of Bourhill v Young 1941 SC 395, 1942 SC (HL) 78 (considered by Lord Reed in Campbell at 376-377). I also reject the submission for the Defenders that "as a rule" secondary victim cases should proceed as ordinary actions.

[14] Returning to the reasons advanced by Counsel for the Defenders for removing the case from the Chapter 43 procedure, I take the view that, well presented though submissions for the Defenders were, exceptional reasons have not been made out: once adjustment is complete there is unlikely to be a need for further detail in the pleadings; and once adjusted I think it unlikely that any of the Pursuers' cases would fail at a debate on the relevancy.

[15] My decision is substantially based on the statement by Pursuers' Counsel that there will be adjustment to include averments about a recognised psychiatric injury in respect of the mother and grandfather. It is also appropriate to record that on the submissions made by Pursuers' Counsel this case is not suitable for jury trial because questions of relevancy cannot be answered until after the facts are established.

[16] Both Counsel talked about RCS 43.5 requiring an element of "crystal ball gazing". Clearly this is correct. The Defenders have put down a marker; and refusal of this motion does not preclude an application in due course for the case to be sent to the Procedure Roll in terms of RCS 43.6 (5) if it should turn out that, contrary to expectations at this stage, the case for one or more of the Pursuers should appear to be fundamentally irrelevant because, for example, of the clear absence of a duty relationship on the pleadings.

[17] Counsel were content that I should deal with the question of expenses without hearing further submissions. The motion was prompted by the issuing of the judgement in the case of Bruce v Brown [2011] CSOH 165 (11 October 2011). In terms of the Rules, the Defenders have a limited window in which to make the motion. A result of the motion is that two of the Pursuers have effectively undertaken to adjust their claims to specify a recognised psychiatric condition. In all the circumstances it would seem fair to find the expenses of and occasioned by the Defenders' motion to be expenses in the cause.