Thursday, February 1st, 2018
Amber Galbraith of Compass Chambers appeared for the defender in this opposed Motion heard by Lord Brodie.
The pursuer in this Chapter 43 action sought damages for injuries sustained by him in an accident in October 2013 while working for the defenders. He suffered traumatic amputation of the tips of the index, middle and ring fingers of his left hand when using an unguarded guillotine machine. Liability was admitted and only quantum remained in dispute. The case called on the pursuer’s motion for issues, which was opposed by the defenders on the ground that special cause existed for the allowance of proof (Court of Session Act 1988 section 9(b)).
It was the defender’s contention that the case raised a number of matters of complexity, including the calculation of pension loss and the cost of prostheses, but what primarily made the case unsuitable for jury trial was the approach adopted by the pursuer to the calculation of future wage loss.
The pursuer’s valuation of future income loss was £782,790; arrived at by capitalising the proposed annual differential between the career average earnings of £22,997 p/a, which the pursuer would have earned but for the accident, and the average of £13,275 p/s which he was now likely to earn. This calculation required consideration of the actuarial tables found in ‘the Ogden Tables’ 7th edition, the explanatory notes to the tables and the application of the multipliers found therein.
It was accepted by the defender that the mere fact that a party intended to value a claim by reference to the Ogden Tables was not of itself a reason not to allow a jury trial. However, it was submitted that the pursuer’s case was not straightforward:
1. There is a dispute as to what the likely course of the pursuer’s career in the future;
2. There will be a legal question to resolve as to how the valuation of future wage loss should be approached, as the defender contends that any future wage loss is more appropriately valued by a lump sum award;
3. If the Ogden Table methodology suggested by the pursuer were to be used: the Jury may have to consider a split multiplier; and/or will have to apply a reduction factor to the multiplier to be used and evidence would have to be led as to whether the pursuer falls to be regarded as “disabled” for the purposes of arriving at that reduction. This latter question is one of mixed fact and law.
4. Using the Ogden Tables methodology would be to over compensate the pursuer; and
5. There are no instances of the Ogden Table methodology having been adopted by a Judge previously.
Lord Brodie found nothing ‘inherently complex’ in the pursuer’s claim in respect of future wage loss: “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……I do not see the pursuer’s approach as involving a split multiplier.”
Equally, Lord Brodie did not find the question of whether or not the pursuer was ‘disabled’ for the purposes of identifying the appropriate reduction factor to any multiplier as being so difficult for a jury to determine as to make the case unsuitable for jury trial.
Lord Brodie then considered the practicalities of a jury trial and how these might affect the prospects of a just outcome. He accepted that “the trial of a claim for future wage loss under reference to the Ogden Tables is likely to be a more demanding exercise for all those concerned than a proof before a judge”, and that evidence would have to be led to explain the operation of the Ogden Tables and Counsel and then the Judge would have to provide full and precise explanations in their speeches and directions to the Jury. However, he considered these were of the nature of a jury trial and that it ought to be “borne in mind that statute assumes that jury trial is the preferable mode of determining personal injury claims.”
Whilst noting there were difficulties associated with use of the Ogden Tables and, in particular, that part of the Ogden Tables which attempts to address contingencies other than mortality, he considered these difficulties could be overstated, and that the Ogden Tables provide the most “scientifically rigorous method for the calculation of future losses which is available to the court.” And that before a Jury they also have “the advantages of being amenable to logical explanation and being simple to apply.”
The defender’s opposition was unsuccessful and Issues were allowed.
The Opinion of Lord Brodie can be read here.
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