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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morris v. Fife Council [2003] Scotcs 190 (04 July 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/190.html Cite as: [2003] Scotcs 190 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD ABERNETHY in the cause JAMES MORRIS (A.P.) Pursuer; against FIFE COUNCIL Defenders:
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Pursuer: A. Smith, Q.C.; Drummond Miller, W.S. (for Drummond, Cool & Mackintosh, Cupar)
Defenders: Maguire, Q.C., Duncan; Simpson & Marwick, W.S.
4 July 2003
[1] In this case the pursuer seeks damages from the defenders for loss, injury and damage. He avers that while he was in their care as a child he was subjected to sexual and other physical abuse by one of their employees, David Murphy. This, he avers, occurred on an almost daily basis between the ages of 7 and 15. He was born on 18 September 1952 so the period concerned is between about 1959 and 1967. The defenders for their part admit for the purposes of the current action that they are liable to make reasonable reparation to the pursuer for any loss, injury and damage sustained by him as a result of the acts of David Murphy during the period in question. They do not dispute that the acts took place as averred by the pursuer. [2] The pursuer wishes to have the case decided by jury trial. He therefore seeks issues. The defenders on the other hand tabled a plea that, there being special cause, the action is unsuitable for trial by jury. The matter came before me on Procedure Roll. [3] When the case called the pursuer's case included averments that he was also abused in a similar manner by a third party, a carer for whose actings the defenders were not said to be liable. In his condescendence of loss (Article 6 of condescendence) he averred that he had suffered loss, injury and damage as a result of the actions of both David Murphy and the third party. He further averred as follows:"In addition to the pain, discomfort and humiliation of the abuse at the time it happened, the pursuer's whole life has been ruined by the effects of that abuse. Although he married and had children, his relationship with his wife broke down on account of his difficulty in relating to others. He suffered confusion about his sexuality, and a lack of trust in others. He has been tormented by the thoughts of what has occurred."
The averments relating to the third party were met with a general denial by the defenders and the averments of loss attracted a plea that, being of doubtful relevancy, they ought not to be remitted to probation.
[4] At the outset of the debate Mr Andrew Smith, Q.C., counsel for the pursuer, moved to amend the Closed Record in terms of a Minute of Amendment (No.16 of process) and answers thereto (No.17 of process). This was not opposed and I granted the motion. The effect of it was to remove the averments relating to the third party. This was in response to points made in the defenders' Note of Argument. [5] The debate then proceeded. Miss Maguire, Q.C., senior counsel for the defenders, made her submissions in support of her preliminary pleas. When she had completed these Mr Smith sought and was granted an adjournment in order to discuss matters with his client, who had now arrived in court from England. Mr Smith explained that he had not had the opportunity to do that before. On resuming Mr Smith moved that the Closed Record be further amended in terms of a new Minute of Amendment (No.18 of process) and answers thereto (No.19 of process). Again this was not opposed and I granted the motion. The effect of this amendment was to narrow the pursuer's case still further. The averments in Article 6 of condescendence referred to above were deleted and in substitution therefor the following averments were made:"The pursuer has suffered loss, injury and damage as a result of the actions of Murphy. He suffered pain, discomfort and humiliation at the assaults during the period stated in Article 3 of condescendence. He was ashamed and confused about why he was being assaulted by Murphy."
In addition the averments of fact upon which the earlier averments of loss were based were deleted (Article 4 of condescendence).
[6] In light of these changes Miss Maguire maintained her resistance to issues. She made further submissions on behalf of the defenders. I shall record these and her earlier submissions insofar as they remain pertinent to the pursuer's case as it now is. Miss Maguire pointed out that while the pursuer had now narrowed his case on Record to a claim of damages for the pain, discomfort and humiliation caused by Murphy's assaults on him, the previous averments relating to the third party and the other consequences that the pursuer had previously averred could not be overlooked. (These averments were now incorporated, by reference to the summons, in the defenders' answers as a result of the amendment procedure.) These events had taken place some 36 to 44 years ago. Even although the pursuer now claimed only in respect of the assaults themselves, it was implicit from their nature that there would be consequences of a psychological nature. In any event, it was known from the pursuer's previous averments (and confirmed by the defenders' own investigation of the case) that there had been such consequences here. The pursuer was therefore resorting to an artificial situation as a device to have the case tried by jury. Moreover, when the pursuer's evidence in support of his averments of the pain, discomfort and humiliation he suffered and his feelings of shame and confusion were tested in cross-examination, it was inevitable that these consequences would emerge. The jury would of course hear that and it would not be realistic for them to put it out of their minds again whatever directions to do so were given by the trial judge. There would therefore be a material risk of prejudice to the defenders that the sum awarded by the jury would be affected by what they had heard about the consequences of the assaults. It was to be noted that the sum sued for had not been reduced to take account of the amendments which had reduced the scope of the pursuer's case. That sum could not now be realistic but it was still the figure which would be before the jury as the sum sued for. The defenders might of course avoid knowledge of the consequences of the assaults coming to the attention of the jury by declining to test the pursuer's evidence in cross-examination but that in itself would be prejudicial to the defenders. For these reasons Miss Maguire submitted that the case was wholly unsuitable for trial by jury. [7] In reply Mr Smith reminded me that it was the pursuer's right to have his case tried by jury unless and until special cause is shown why that should not happen. Moreover, it was for the pursuer to decide on the scope of the case he wished to bring before the court. If he did not wish to claim damages in respect of some of the consequences of the assaults on him that was a matter for him. In many cases of physical injury it was obvious that there might well be psychological consequences but it was not a reason for withholding trial by jury that the pursuer's claim was in respect of the physical injury only. Reference was made to McLeod v British Railways Board 2001 S.C. 534. Nor was it special cause that the defenders could not cross-examine the pursuer on his evidence of the effects of these assaults on him at the time without disclosing extraneous matters. If there was any risk of prejudice as a result of evidence elicited by such cross-examination it could be removed by direction of the judge. Our system proceeded on the concept that the jury obeyed the judge's directions. Nothing could be read into the failure to alter the sum sued for. It could not be taken as a reason for withholding jury trial. Mr Smith further submitted that there was a dearth of authority as to the levels of awards for assaults of this kind. The overall philosophy of Scottish practice is that the assessment of damages is first and foremost a matter for a jury. It is this philosophy which gives to awards of damages their essential legitimacy. Reference was made to the recent decision of an Extra Division in Shaher v British Aerospace Flying College Ltd, as yet unreported, 29 May 2003. It was therefore of some general importance that this case be tried by jury so that an indication of society's expectation of the level of award in a case of this kind could be obtained. For these reasons the defenders' preliminary pleas should be repelled and issues allowed. [8] In reply Miss Maguire submitted that the situation in cases like McLeod v British Railways Board was not analogous to the present case. In the present case it was implicit by the very nature of the assaults that there must have been psychological consequences. In order to assess the consequences of the assaults in the seven years during which they took place it was essential to know what had happened in the years since then. That was because the effect on the pursuer over the whole period would inform the assessment of damages for the seven years during which the assaults took place. While there are no reports of awards in cases such as the present in Scotland there is a significant number of such reports in England. Given that the courts in Scotland can look to English awards (Allan v Scott 1972 S.C. 59) there was no point of general importance in this case going to jury trial so as to set a level of awards. In any event, by reason of the fact that the pursuer was not claiming damages in respect of any consequences of the assaults, any guidance from this case as to the level of awards would be of little or no value. [9] In my opinion it is not appropriate that this case should be tried by jury. I recognise that the pursuer has a right to trial by jury and it is only on special cause shown that that can be denied. I also recognise that it is for the pursuer to decide on the scope of his case. He does not have to claim damages for all the consequences that flow from his cause of action. He can restrict his claim if he wishes to do so. I also recognise that it is for the pursuer to decide how much to sue for by way of damages, although it may be that the sum sued for is so grossly inflated as to be in itself a source of prejudice to the defenders should the case go to trial by jury. I am not in a position, however, to say that that extreme stage has been reached in this case. I do not think I can decide the case by reference to whether there is general merit in having a jury trial so as to get an indication of society's expectation of the level of awards in cases of this kind. In any event, I agree with Miss Maguire that any merit in that would be much reduced by the limited scope of this case. It seems to me, and I understood both counsel ultimately to accept this, that my decision turns on whether in the particular circumstances of this case there is a material risk of prejudice to the defenders if the case were to be tried by jury and, if so, whether that risk could be overcome by directions from the trial judge. [10] In my opinion the pursuer's submissions fail on this point. The events in respect of which the pursuer seeks damages occurred some 36 to 44 years ago when he was between 7 and 15 years old. He claims damages for the pain, discomfort and humiliation that he suffered at the time. In his evidence he will therefore be recalling how he felt all those years ago. The defenders do not dispute the averments of assault, which include averments of very serious sexual abuse carried out on an almost daily basis over some eight years. They admit for the purposes of the present action that they are liable to make reasonable reparation to the pursuer in respect of any loss, injury and damage sustained by him as a result of these assaults. The only real issue between the parties, therefore, is the extent of that loss, injury and damage. So it is obvious that the defenders will want to test the pursuer's evidence in cross-examination. And it is equally obvious that they will want to test his evidence by reference not only to the passage of time since the assaults took place and the effect that has had on his recollection, but also by reference to the events in the pursuer's life in the years since then, which may have affected his evidence of the more immediate effect of the assaults. This is particularly so since the pursuer previously averred that the assaults had had a devastating affect on his later life. In that situation the defenders have two options. Either they do not cross-examine the pursuer because they do not want the evidence of these consequences to colour the minds of the jury, or they do cross-examine and the evidence of these consequences comes out. Whichever option they take would in my opinion result in a material risk of prejudice to them. If they take the first option, they are denied an obvious and in reality perhaps the only substantial line of cross-examination open to them in the circumstances of this case. If they take the second option, the jury's minds are inevitably affected by the evidence of the consequences. I did not understand Mr Smith to dispute that that would be so. But he said that any adverse affect could be removed by the trial judge's directions. I have considered this point very carefully. I do not doubt that the judge could frame suitable directions. And I accept that our system of jury trial proceeds on the concept that the jury will obey the trial judge's directions. But it is also well recognised that there are situations where the evidence in question is likely to have such an effect on the jury's mind and result in such a material risk of prejudice that no direction by the trial judge can realistically remove it. In my opinion this is such a case. Cases of sexual abuse are very much in the public eye at present. Many of these cases, like this one, have come to light only many years after the abuse took place. It is well known that one of the reasons why this is so is because the victim has felt unable to discuss it with anyone or, if he or she has mentioned it, has not been believed. This has often led to severe psychological and/or social problems in later years. The averments on which the pursuer based his case until the amendments on the morning of the debate fit into this pattern almost precisely. In my view hearing this evidence will inevitably have a major impact on the jury's view of what the pursuer suffered. It does not seem to me to be realistic to expect them then, whatever direction the trial judge may give, to put it out of their minds. The result of this is in my opinion that there will remain a material risk of prejudice to the defenders. In any event, agreeing with Miss Maguire, in my opinion a jury would be likely to think that psychological and/or social consequences would be implicit following serious sexual abuse such as occurred here and would find it impossible to exclude that no matter what directions the trial judge gave. This situation is not in my opinion analogous with all forms of physical injury, although it may be in some cases. It does not appear from the report but counsel informed me that in McLeod v British Railways Board averments of psychological consequences from severe physical injuries were withdrawn from the pursuer's case before it went to jury trial. So the jury had to consider the physical injuries only. Nevertheless, the judges of the First Division plainly felt that psychological and social damage was an implicit consequence of the injuries and a factor which the jury would have taken into account: see paragraph [16] of the Opinion of the Court delivered by Lord President Rodger. If the averments of psychological and social damage had previously been withdrawn, that was overlooked, which perhaps illustrates very well how unrealistic it would be for a jury to put such consequences out of their minds. [11] I mentioned earlier that the pursuer had originally averred similar acts of abuse by a third party for whose actings the defenders were not said to be liable. The question of apportionment of the loss, injury and damage for which the defenders were liable then arose. These averments, however, were deleted by amendment. Miss Maguire submitted that this made no difference to the question whether the case should go to jury trial. The question of apportionment remained. The defenders would therefore be in a similar position with these averments to the position they were in with the averments of the later psychological and social consequences suffered by the pursuer. Indeed, they would not have the options I mentioned earlier. They would have to lead evidence of the assaults by the third party so as to enable the jury to apportion the loss, injury and damage for which the defenders were liable. It was not clear from the averments over what period the assaults by the third party were alleged to have been carried out, but Mr Smith informed me that it was only for the last six months of the period covered by Murphy's assaults. In that situation, while I think there would still be a risk of some prejudice to the defenders of the same kind I have described, I incline to the view that in itself it would not have amounted to special cause sufficient to justify refusing trial by jury. However, when taken with the more substantial point giving rise to a material risk of prejudice to the defenders, it confirms me in my decision. [12] For these reasons I shall sustain the second plea-in-law for the defenders and, there being no dispute as to further procedure in that situation, send the case to proof before answer. As I understood it, the defenders' first plea-in-law had been superseded by the pursuer's second Minute of Amendment.
