Court of Session, Outer House 12 July 2007
In the first Gavin Slessor v Vetco Gray & Ors Lord
Emslie in July 2007 refused the pursuer's motion for a jury trial.
By way of background Mr Slessor suffered significant crushing
injuries in a work related accident resulting in the amputation of
his right leg and forearm leading to uncertainties about whether he
would be able to return to work and if so in what sort of
capacity.
The principal argument put forward by the defenders was that the
uncertainties about the pursuer's future working capacity made
calculating future wage loss, the most significant element of the
claim, extremely difficult.
Mr Slessor's representatives argued that under Chapter 43
procedure the court required to look not only at the pleadings but
also at other documents lodged by the pursuers such as his
statement of valuation of claim and medical and employment reports.
Although they acknowledged that in calculating future wage
reference would need to be made to the Ogden Tables it was
suggested overall that this ought to be a relatively
straightforward exercise.
Lord Emslie while accepting that the Chapter 43 procedure
allowed parties to have abbreviated pleadings held that the
pleadings still needed to be sufficiently detailed to set out
clearly what was being claimed and give fair notice. He was not
impressed with the suggestion that brief pleadings could be
supplemented by reference to statements of valuation and
productions. As he put it "moreover I cannot believe the framer
of Chapter 43 thought it appropriate for the defenders to have to
guddle about in other documents to ascertain the likely nature of
the case against him".
In any event having considered the other documents he pointed
out that the statement of valuation of claim was incomplete and not
easily reconcilable with the expert reports and that the reports
themselves seemed to conflict with each other on the question of
the pursuer's likely future earnings/employment prospects.
Lord Emslie indicated that when judging the suitability of a
case for a jury trial he would rely principally on party's
pleadings and would only take account of other documents if the
content was clear and consistent.
The judge made it very clear that the fact that the Ogden Tables
would require to be used in order to calculate future wage loss did
not of itself make a case unsuitable for jury trial however he felt
that in this case where the future employment prospects were so
uncertain that the application of the Ogden Tables would be a real
source of difficulty.
Lord Emslie pointed out that a judge hearing a case like this on
his own would have the benefit not only of full submissions from
the parties but also he himself could make reference to the Ogden
Tables and the extensive explanatory notes as well as having the
luxury of being able to take time to reflect on all the issues
before coming to a reasoned and thus reviewable decision.
By contrast Lord Emslie recognised that a jury would have few if
any of these benefits. He noted that although Mr Slessor's senior
counsel had suggested that the jury could be given a copy of the
Ogden Tables themselves "even he recoiled at the possibility of
a jury being let loose on the explanatory notes which the authors
of the table clearly regarded as essential reading". This is
presumably because either Mr Slessor's counsel or the judge or a
combination of the two would have to explain to the jury how to
apply the tables and explanatory notes.
Lord Emslie concluded by suggesting the more complex the case
the more difficult it would be for a judge to give a jury
appropriate direction and in his opinion in the Slessor case the
complexities were such that this would be virtually impossible.
The decision in Slessor was appealed and is due to be
heard at the end of February. If the appeal goes ahead we will
confirm the result.