Mark Easdon v A Clarke & Company (Smithwick) Ltd -
Court of Session 25th January 2006
The Pursuer was involved in a road traffic accident suffering
fractures to his cervical spine, resulting in tetraplegia. In
addition to being rendered permanently wheelchair bound, he
suffered psychological difficulties. The Pursuer was no longer
employed in his pre-accident position as a General Sales Manager
and as a result had an ongoing loss of earnings claim. In addition,
the Pursuer suffered a loss of pension rights and maintained a
fairly complicated services claim. He required to purchase a new
home and adapt that home to make it suitable for his use.
Similarly, he required to purchase and renew other specialist
equipment including the adaptation of suitable vehicles.
The Pursuer made a novel claim to recover fertility treatment
costs. Although the Pursuer and his wife were expecting their first
child at the time of the accident, they claimed that they planned
to have three children and in order to have any effective chance of
increasing their family, they would require specialist fertility
treatment for those with spinal cord injuries.
The Pursuer sought a Jury Trial.
Arguing against a Jury Trial, the Defenders complained that the
Pursuer's pleadings were lacking in essential specification which
would give rise to a significant risk of objections in the course
of any Hearing. This would be undesirable in the case of a Jury
Trial.
Furthermore, the Defenders argued that the lack of specification
in the pleadings could not be amplified by specification in the
Statement of Valuation of Claim. They argued that the Statement of
Valuation of Claim was not part of the pleadings and was therefore
not binding on the parties.
The Defenders also contended that the claim was too complicated
for a Jury, as there were a significant number of different heads
of claims which the Jury would require to assess, most of which
involved significant sums of money. Furthermore, the claims for
costs of fertility treatment was novel, and indeed of doubtful
relevance.
In reply the Pursuer argued that the case was indeed suitable
for Jury Trial and he maintained that there was no lack of
specification in the pleadings but that in any event they should be
looked at in conjunction with the Statement of Valuation. He argued
that although the Statement of Valuation was not part of the
pleadings, it required to be lodged with the Court and it's
supporting documents and reports listed and made available to the
other party. If the Pursuer attempted to lead evidence different
from the underlying factual material referred to in the Statement
of Valuation, then the Defenders could object. The Pursuer
maintained that the case did not give rise to complexities which
made it unsuitable for Trial by Jury, and indeed, the number and
value of the claims was not enough to prejudice the Pursuer's right
to Trial by Jury.
In relation to the question of recovery of fertility costs, it
was argued that the Pursuer was simply seeking to be given the same
opportunity to have children as he had before the accident. The
Pursuer's position was that the relevance of the claim could not be
questioned, albeit that it was accepted that the claim was
novel.
After consideration, Lord Kingarth, was of the view that
Statements of Valuation could not be said to form part of the
pleadings. However, he saw no good reason why regard could not be
had to such Statements when considering the question of whether
fair notice has been given. He considered that it was clear that
the basic factual averments disclosed in the Summons would be
supplemented by further factual detail in the Statement of
Valuation. His Lordship, therefore, was of the view that regard had
to be taken of both the pleadings and the Statement of Valuation in
determining any issue of lack of specification. On the basis of the
present pleadings and Statement of Valuation of Claim, he was of
the view that adequate specification had been provided.
In refusing to allow a Jury Trial, however, he expressed the
view that there were a number of factors which made this case
unsuitable for Trial by Jury. The fact that there were a number of
claims which individually and collectively were of significant
value did not itself amount to sufficient reason to render the case
unsuitable for Trial by Jury. Nevertheless, his Lordship was of the
view that catastrophic injuries of this nature are notoriously
difficult even for a Judge to properly assess.
Lord Kingarth was of the view that the fact that payments were
being made from a variety of different sources towards the
Pursuer's care, gave rise to potentially complicated questions
about the Pursuer's entitlement to a private care package. He also
placed reliance on the fact that there was a prospect of the
Pursuer undergoing operative surgery that would result in the
Pursuer obtaining functional improvements which could not only
effect the nature of his care requirements, but could also give
rise to a requirement that different multipliers be applied to
different parts of the future care claim. The functional
improvements also raised the possibility of the Pursuer returning
to paid employment after some retraining, and his Lordship was of
the opinion that this could give rise to complexities in respect of
the claim for pension loss.
In all the circumstances, his Lordship was satisfied that the
potential complexity of certain elements of the Pursuer's claim,
particularly when considered together, was sufficient to merit
withholding the case from jury trial.
Whilst Lord Kingarth's decision is encouraging from a Defender's
point of view, it is less clear what his view would have been had
he been faced with a case involving only one complex head of claim,
as it was the combination of factors involved that ultimately led
to his decison. It remains the position that it is difficult to
persuade the Court that a jury trial is not appropriate in any
given case.