An apprentice thermal insulation engineer who is suing his employer following an accident at work will have his case heard by a jury after a judge rejected the company’s claim that the £2 million damages action was too complex.
A judge in the Court of Session was not persuaded that “special cause” existed to have the case be determined by proof.
Motion for issues
Lord Brodie heard that the pursuer in this Chapter 43 action, Joseph Glen, 20, was seeking £2m as damages for personal injuries sustained by him in an accident on 29 October 2013 while working for the defenders Lagwell Insulation Company Limited, under a scheme placing school leavers with employers with a view to them being taken on as apprentices.
The pursuer suffered traumatic amputation of the tips of the index, middle and ring fingers of his left hand when using an unguarded guillotine machine.
The defenders admitted their liability to make reparation to the pursuer in respect of his injuries, but quantification of damages remained in dispute.
The case called on the pursuer’s motion for issues, but the motion was opposed by the defenders on the ground that special cause existed for the allowance of proof in terms of section 9(b) of the Court of Session Act 1988.
‘Difficult questions of fact and law’
On behalf of the defenders, Amber Galbraith submitted that there was special cause because the case raised a number of matters of complexity, including the calculation of future wage loss, the calculation of pension loss and the amount to be attributed to the cost of prostheses.
It was argued in particular that the approach adopted by the purser to the calculation of future wage loss, which would require the use of split multipliers, involved “difficult questions of fact and law”.
Counsel suggested that a judge would find it difficult to give the jury clear directions as to how they should assess this head of damages.
However, on behalf of the pursuer, Simon Di Rollo QC submitted that the fact that the pursuer opted for a particulars method of calculating future should not make the case unsuitable for jury trial.
It was argued that there was nothing in the method which relied on the adjustment of the multiplier derived from the Ogden Tables to account for the pursuer’s disability consequential on the accident by the application of a reduction factor, which made it inappropriate for consideration by a jury, properly directed.
No special cause shown
The judge agreed that the case was not so complex that it could not be considered by a jury.
In a written opinion Lord Brodie said: “In my opinion there is nothing inherently complex in the pursuer’s claim in respect of future wage loss. As I have already indicated, parties in the present case put forward no more than three possible career paths which the pursuer might follow or might have followed but for the accident.
“It is assumed that the pursuer would have received or will receive remuneration at the middle of the range relative to his posited employment. No issue is raised about the possibility of promotion or other sort of career development.
“The pursuer will propose different multipliers for, on the one hand, calculation of the value of his probable life-time earnings as a thermal insulation engineer, had it not been for the accident and, on the other, calculation of the value of his post-accident probable life-time earnings in lower skilled employment, but the reasons for that can be explained in evidence.”
Nor did the judge believe that the case would involve difficult mixed questions of fact and law, although he accepted that whether the pursuer should be regarded as “disabled” would be an important question a jury would have to consider.
Lord Brodie explained: “I also accept that, strictly speaking, it is a mixed question of fact and law in that a person is defined in paragraph 35 of the Explanatory Notes as being ‘disabled’ only if: (i) the person has an illness or a disability which has lasted or is expected to last for over a year; (ii) the person satisfies the Equality Act 2010 definition that the impact of the disability substantially limits the person’s ability to carry out normal day-to-day activities; and (iii) their condition affects either the kind or the amount of paid work they can do.
“However, at least in the case of the pursuer, where what would be founded upon is the amputation of his fingertips and the loss of function consequent thereon, I do not see the question as to whether he satisfies the paragraph 35 definition to be so difficult for a jury to determine as to make the case unsuitable for jury trial.”
“Accordingly,” he added, “I have not been persuaded that the pursuer’s claim for future wage loss is so complex as to require that it be determined at a proof.”