Gwenneth Ann McCafferty & others v. Scott's Caravan & others [2011] CSOH 16

In February 2007, the first pursuer and her husband stayed overnight in a caravan belonging to the first pursuer's brother. The caravan had a gas heater. During the night carbon monoxide from the flue of the heater re-entered the caravan. The first pursuer and her husband sustained carbon monoxide poisoning. The first pursuer's husband died and the first pursuer suffered injury. The first pursuer claimed damages for her personal injury and for the death of her husband; the two sons and one daughter of the marriage also claimed damages for the death of their father. The defenders sold the second-hand caravan to the first pursuer's brother. The claims are directed against the defenders in respect of their alleged fault at common law; it was averred that the heater had not been properly installed in accordance with the manufacturer's instructions and that the defenders had represented that the caravan had been serviced and inspected, when it had in fact not been so serviced and inspected and had been installed incorrectly.

The defenders argued that there was “special cause” in terms of the Court of Session Act 1988, sections 9 and 11, for refusing issues and withholding the case from a jury. It was submitted that the action would inevitably require the leading of complex engineering evidence relation to: the operation of the gas heater; the manner of installation of the gas heater; the effect of the weather on the movement and build-up of carbon monoxide within the caravan; the carbon monoxide concentrations. Moreover, it was submitted that the basis of the duty of the defenders to these particular pursuers, who were not the purchasers of the caravan, would result in difficulties in leading evidence and directing the jury.

Rejecting this motion, the Lord Ordinary concluded that this case fell “well short of the degree of technical complexity that would make a case unsuitable for trial by a jury”. While acknowledging that some technical passages of evidence would require to be placed before the jury, the court noted that such evidence was not of the essence of the action and could readily be put to a jury in a manner which was intelligible. The court moreover noted that no judge would have difficulty directing a jury on such matters. The Lord Ordinary concluded that there was no special cause to justify withholding the pursuers from the right to a civil jury trial.