Court of Session, Outer House 14 December 2007
In December 2007 Lord Brodie heard an opposed motion for a jury
trial in the case of Smith v Hughes & Home Concerns
(Scotland) Limited. The pursuer in that case was injured in a
road accident. It seems to have been accepted that she was rendered
permanently unfit to return to her previous employment as a carer
or indeed any other employment. The fundamental uncertainties about
future employment prospects which feature in Slessor and
O'Neill were not present in the Smith case. The defenders
opposition here was on narrower grounds focussing on the lack of
detail in presentation of the claims for future promotion prospects
and future services.
In relation to future promotion all that was said was at the
time of the accident the pursuer had recently been promoted to
supervisor and that but for it she had "prospects for further
promotion".
In relation to services all that was said was the pursuer had
and continued to receive services from her husband and daughter. A
statement of valuation of claim had been lodged in which a figure
of £94,000 was attributed to future services based upon a certain
number of hours each day for life but no explanation was given of
what the services would be or why they were necessary.
The pursuer's advisors argued that in terms of the Chapter 43
rules they were required in their pleadings to do little more than
identify the heads of claim that she was putting forward. It was
suggested that Lord Brodie could take account not only of what was
said in the written case but also what was in the statement of
valuation.
However Lord Brodie decided that notwithstanding the changes
introduced by Chapter 43 the parties still required to give fair
notice and that would normally require some detail in the pleadings
both of what the head of claim was and how it was to be made up. As
he put it "the pleadings should be in such a form as clearly to
convey what the case is about to their two direct audiences, the
other party and the judge:... when it comes to questions purely of
quantification then the pleadings may be supplemented by what
appears in the statement of valuation of claim but it would seem
appropriate, and, in a jury trial, convenient to be able to
ascertain from a party's pleadings what it is that a party seeks
and the factual basis upon which he seeks it".
In relation to what was said about future promotion prospects on
being told that nothing more could be added Lord Brodie had no
hesitation in excluding this head of claim as irrelevant.
In relation to the future services the pursuer's advisors
indicated that they could provide more detail to address the
concerns raised and Lord Brodie therefore continued consideration
of the motion for jury trial to allow this to be done.