In the first decision of its kind since the introduction of the Limitation (Childhood Abuse) (Scotland) Act 2017, the Court of Session has rejected an application to have an abuse case heard by a Jury.
The pursuer attended Fettes School in 1975 and 1976 where he alleged that he was physically and sexually assaulted on a number of occasions by a school teacher employed by the defenders. It was also claimed that the teacher carried out similar assaults on other pupils at the school. The pursuer sought damages of £1 million, for psychological injuries sustained, together with interest at 8% per year from 1975 to date.
In Scotland, a pursuer in a civil action for damages has a statutory right to have his case heard by a jury unless the defenders can show “special cause” leading the Court to determine that the case is unsuitable for jury trial.
Given the entitlement of a pursuer to seek a jury trial it was for the defenders to demonstrate “special cause” and they based their opposition on the following three grounds:
Firstly, the defenders’ Counsel argued that, on the basis of previous decisions, the inclusion of allegations of abuse of other pupils ought not to be allowed. This would inevitably lead to legal argument during the jury trial on whether that evidence was admissible. He submitted this constituted “special cause”.
Secondly, it was argued that the historic nature of the allegations and delay in bringing proceedings posed difficulties for a jury considering the evidence.
Thirdly, it was submitted that quantification of the claim would involve multiple and complex difficulties associated with the assessment of how the pursuer’s earning capacity would have turned out had he not been abused/suffered psychological damage. This amounted to “special cause” meaning that the case ought to be heard by a Judge rather than a jury.
The pursuer’s Counsel argued that this was a relatively straightforward claim; “special cause” had not been demonstrated by the defenders and that the case ought to proceed to a jury trial.
Lord Clark rejected the defenders’ second argument that delay meant that the case ought to be withheld from a jury. However, he agreed with the defenders that “special cause” had been demonstrated in respect of the admissibility of the evidence of other abuse and the complicated nature of the assessment of damages. On the latter point, Lord Clark commented that there would be difficulties around the quantification of the pursuer’s alleged financial losses and the amount of interest to be applied to the overall award, commenting “there is room for material concern here about the interplay between the jury’s views on the various matters that bear upon damages and interest (such as the actuarial evidence) and how the judge will come to decide upon the appropriate dates and rates of interest.”
Lord Clark was persuaded that “special cause” had been demonstrated and refused the application for a jury trial.
Experience has shown over recent years, particularly in fatal cases, that juries tend to be more generous than judges in their assessment of damages. This has in turn led to an increase in subsequent awards made by judges. However, Lord Clark’s decision does not set a binding precedent in this area and the option of seeking a jury trial in abuse cases will remain one to be determined on the facts/issues of each individual case. It remains to be seen whether the decision will be appealed or if this is the beginning of a trend of pursuers seeking jury trials in abuse claims. The decision is informative in that it sets out two issues – quantum and admissibility of evidence – where the Court may be persuaded that “special cause” exists to prevent a case ending up before a jury.
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