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Kathy-Rose Gordon v. EUI Limited [2011] CSOH 36


On 2 May 2008, the pursuer was driving her car westwards on the A90 dual carriageway near Glencarse, when she was rammed from behind by a vehicle driven by the defenders' insured. The pursuer was thrown forward and suffered various head injuries during the accident, for which she sought damages in the present action.

In this opposed motion, the defenders argued that the case was unsuitable for jury trial because it raised complex issues of fact relating to the nature of the pursuer's injuries and her prognosis for recovery. It was argued that the difficulties presented within the factual material of the case went beyond merely requiring a jury to discriminate between competing medical experts. Conversely, counsel for the pursuer argued that the case raised no special cause which would permit withholding issues before a civil jury, noting that medical complexities were frequently encountered in similar cases before juries. It was argued that the right to a jury trial was an important statutory right which the pursuer should not be deprived of, absent any special cause.

Allowing the motion, the Lord Ordinary concluded that special cause did exist, and allowed for the refusal of issues before the jury trial. The Lord Ordinary noted that several complex medical issues were raised within the case and these were extremely relevant to the quantification of any solatium the pursuer might receive. The Lord Ordinary noted that complex issues of fact and causation were raised, particularly in relation to whether the pursuer's claimed inability to return to her pre-accident employment was due to her physical disabilities, or to neuro-psychological deficits, or psychological problems, or to a combination of those factors. The Lord Ordinary felt that several days expert evidence would be required to assess the impact of those factors on the calculation of future loss of earnings and the assessment of loss of employability and that this might complicate the task of a jury. Pursuer's motion refused; proof before answer allowed.