Robert Campbell Ross+kathleen Ross V. Graham Pryde
| Jurisdiction | Scotland |
| Judge | R.F.Macdonald, Q.C. |
| Date | 30 July 2004 |
| Docket Number | A1095/03 |
| Court | Court of Session |
| Published date | 30 July 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| A1095/03
| OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause ROBERT CAMPBELL ROSS and KATHLEEN ROSS (FE) Pursuers against GRAHAM PRYDE Defender ________________ |
Pursuers: D Kelly; Drummond Miller WS
Defender: A C Forsyth; The Anderson Partnership
30 July 2004
[1]This action arises out of the tragic death of a 15 year old girl, Joanne Ross ("the deceased"), in a road traffic accident on 30 April 2000. The pursuers, who are divorced, are the parents of the deceased. The defender is the driver of the car in which the deceased was travelling at the time of the accident. It is averred that he drove at an excessive speed over bumps in the road and round corners, as a result of which he lost control of the car and it left the roadway, hit an embankment, headed back to the roadway and then hit a verge and somersaulted down the road for about 80 yards, causing the deceased to sustain fatal injuries. On 7 March 2001 he pleaded guilty to careless driving at Haddington Sheriff Court and on 28 March 2001 he was fined and disqualified from driving.
[2]The action called on the procedure roll on the defender's second and third pleas-in-law, the first plea-in-law (being a plea directed to the competency of the first conclusion as it was initially drafted) having been repelled by interlocutor of 10 February 2004. The defender's second plea-in-law is a general plea to the relevancy of the action and his third plea-in-law is in the following terms:
"3. Separatim the pursuers' averments of loss being of doubtful relevancy et separatim including such elements of difficulty and complexity, and the action being unsuitable for Jury Trial, any inquiry allowed should be by Proof before Answer."
When he opened the procedure roll debate Mr Forsyth intimated that, under reference to plea 2 for the defender, he was asking that certain averments in condescendence 4 should be deleted as being fundamentally irrelevant, and that plea-in-law 3 for the defender should be sustained on the remaining averments, failing which, on all averments. As the submissions made in the course of the debate focused entirely upon the averments of loss made by the pursuers in condescendence 4, it is first of all necessary to consider the content of condescendence 4.
The pursuers' averments of loss
[3]The pursuers' averments of loss in condescendence 4 are as follows:
"COND. IV. As a result of the death of the deceased the pursuers have suffered loss, injury and damage. The deceased was taken by air ambulance to the Royal Infirmary of Edinburgh, Lauriston Place, Edinburgh. The deceased did not regain consciousness. Her date of death was given as 1st May, 2000. The cause of her death was stated on her Death Certificate as (a) multiple injuries and (b) road traffic collision (car passenger). She satisfied the brain stem death criteria. On 2nd May, 2000 her liver and kidneys were donated for transplant. The pursuers suffered distress and anxiety in contemplation of the suffering of the deceased while at Hospital before her death. They were upset by the death of the deceased. They have suffered and continue to suffer grief, sorrow and distress. They have lost the company and companionship of their daughter. They were anxious at the Criminal Court Case. The deceased stayed with the first pursuer every weekend from Friday to Sunday. The first pursuer was absent from his employment with G. Greig, Building Contractors, Inveresk Mills Industrial Park, Musselburgh, for two weeks. On his return to work he was dismissed. His bereavement at the loss of his daughter was such that he was unable to return to work. Not until 11th September, 2003 did he obtain employment with Chimney Specialists. He was unable to continue with that employment but later in September 2003 he was able to commence part-time employment with Albert Baigain. He has attended his General Practitioner, Dr Crawford, at the Tranent Health Centre, Tranent. He suffered from bereavement reaction, stress and depression. He has suffered from significant psychological difficulties after the death of the deceased. He suffered an Adjustment Disorder and had difficulty in readjusting his life after what happened to his daughter. He has attended a Psychiatrist, Dr Riddle at the surgery. He was received counselling from a Nurse Clair there. He has had to cope with the death of the deceased along with the death of his brother in April 2001, with his wife being seriously unwell, with his inability to work and with his subsequent bankruptcy. His mood has remained low, which has been further compounded by his mother's illness. His condition is likely to persist and he will require support and medication for some time. The first pursuer incurred reasonable expenses in connection with the deceased's funeral. The funeral account was £1,816. The second pursuer has changed since the accident, which she considers has destroyed her life. She rarely leaves the house other than when working except to visit the deceased's grave at weekends. She retreats to her room and goes to bed at about 7 p.m. She was working at the Restaurant at Surgeon's Hall, Edinburgh, when Police Officers informed her of the accident and took her to the Royal Infirmary of Edinburgh. After the accident she left the Restaurant since she felt she could not cope there as Police Officers occasionally came in. She has since worked as a Cleaner. She attended at her General Practitioner, Dr Murray, Dalkeith Medical Practice, 24-36 St. Andrew Street, Dalkeith. She was depressed and was given medication. She has difficulty sleeping. She has no libido. She often thinks of what happened to the deceased. She suffers from bereavement reaction. She suffers from depression which is a Major Depressive Disorder of moderate intensity in terms of DSM-IV. She is reluctant to attend for psychological help since she cannot afford to be absent from work. Psychological treatment is available for the second pursuer privately outwith working hours. In the circumstances the sum sued for is a reasonable estimate of the pursuers' loss, injury and damage".
Submissions for the defender
[4]Mr Forsyth made three principal submissions on behalf of the defender. The first was that the wage loss claims were irrelevant, or at least of doubtful relevancy. The second was that the averments under section 1(4)(a) of the Damages (Scotland) Act 1976 ("the 1976 Act") were irrelevant, or at least of doubtful relevancy. The third was that the present and future grief claims of both pursuers were of doubtful relevancy through lack of fair notice. His two subsidiary submissions related to the issue of complexity. The first was that, as the defender had pleaded a case of contributory negligence against the deceased on the basis of her failure to wear a seat belt and offered to prove that, had she been wearing a seat belt, she would not have sustained fatal injuries, the plea of contributory negligence introduced complexity, rendering a jury trial inappropriate. The second subsidiary submission was that complexity arose from the averments about causation of the first pursuer's psychological difficulties under his claim for grief and sorrow. It was essential that all issues of relevancy should be decided before a jury trial took place: per Lord Justice Clerk Thomson in Boyle v Glasgow Corporation 1949 SC 254 at 261, and in Moore v Stephen & Son 1954 SC 331 at 333-334.
[5]Dealing first with what he described as the wage loss claims, Mr Forsyth submitted that these were irrelevant and ought to be deleted. There was no entitlement on the part of either pursuer to claim for wage loss in this action. The only relevant claims open to them were under section 1(4) of the 1976 Act. There was no claim for loss of support under section 1(3) of the 1976 Act. The restricted nature of a claim by a surviving relative in a death action such as this was made clear by section 1(7) of the 1976 Act, which provides as follows:
"Except as provided in this section or in Part II of the Administration of Justice Act 1982 or under section 1 of the International Transport Conventions Act 1983 no person shall be entitled by reason of relationship to damages (including damages by way of solatium) in respect of the death of another person."
Reference was also made to the case of Millar v Watt & Ors (26 February 2004, unreported), in which Lady Smith stated expressly at paragraph 14 that "no claim for loss of earnings could be advanced under section 1(4) of the 1976 Act". If the averments in question did not set out a claim for wage loss, then, if they were allowed to stand, they would create significant confusion. Here there were averments of specific periods of absence from work. The averments in question should either be deleted or result in a proof before answer being allowed.
[6]Mr Forsyth next turned to consider the averments relating to the distress and anxiety endured by the pursuers in contemplation of the suffering of the deceased before her death in terms of section 1(4)(a) of the 1976 Act. It was averred that the deceased was taken by air ambulance to the Royal Infirmary of Edinburgh and did not regain consciousness. It was further averred that the pursuers suffered distress and anxiety in contemplation of the suffering of the deceased while at hospital before her death. It was a reasonable inference from the averment that the deceased did not regain consciousness that she had been rendered unconscious in the accident and remained unconscious from then until the time of her death. Section 1(4)(a) of the 1976 Act did not cover cases where there had been a sudden or instant death, or where the deceased had been rendered unconscious in the accident and had not recovered consciousness before death. An example of the type of case to which section 1(4)(a) applied was McLean v William Denny & Bros Ltd (30 April 2004, unreported), in which the widow...
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