Court of Session, Outer House 4 January 2008
In January of this year Lord Emslie again refused a jury trial
in the case of Marc MacDonald v Christopher Mallan. This
was a claim for damages following a road accident. The defenders
again opposed the motion on the basis that uncertainties
surrounding the future wage loss claim made it too complex for a
jury.
In this case the pursuers and defenders had competing and
conflicting written cases in relation to what the pursuer's job
prospects would have been had it not been for the accident and in
particular the extent to which he would have been promoted, what
his job security would have been, what his employment prospects
were now on either a full or a part time basis and the extent to
which, if any, his retirement age had been affected by the injuries
sustained in the accident.
The defenders also made reference to the pursuer's statement of
valuation and suggested that with reference to the Ogden Tables
some of the future wage loss calculations had been done wrongly and
some others, because of the various possible outcomes, had not even
been attempted.
It was suggested by the defenders that if those advising the
pursuer who had time at their disposal and the benefit of the
guidance notes were not able to carry out all the calculations what
chance would a jury have of reaching a proper result when they had
neither the professional experience, nor the luxury of time nor a
chance to study all the relevant materials.
Lord Emslie on considering matters again accepted the
complexities here were such as to make the case unsuitable for a
jury trial. Although he confirmed that each case has to be
considered on its own merits he went on to say "some parallels
can be drawn between the present case and my recent refusal of
issues in the case of Slessor and O'Neill. The most striking of
these parallels is, of course, the significant continuing
uncertainty, which on an assessment of the pleadings and other
available documents, affects particular elements of the claim for
future loss".