Scottish court withholds childhood abuse claim from trial by a civil jury

Pursuers in personal injury claims litigated at the Scottish Court of Session or All-Scotland Personal Injury Court have a right to have their claim tried by a civil jury. Where this right is exercised, the case may only be withheld from jury trial if a defender can show “special cause”. This has consistently been applied as a high test however in EG v The Governors of the Fettes Trust, Lord Clark, Court of Session, 22 December 2021, link here, a childhood abuse claim has been withheld from jury trial after special cause was found to exist.

In EG, the pursuer claims to have been physically and sexually abused by a teacher on a number of occasions between 1975 and 1976. He sues for £1m in damages. Liability and quantum are in dispute although the defender accepts that they would be vicariously liable for the teacher if the alleged abuse happened.

The defender sought to avoid jury trial on three distinct grounds. We summarise those, and the courts assessment of them, here:

  • The particular complexities on quantum in this case were claimed to amount to special cause. The court agreed though made clear that this decision was fact-specific to this case. The pursuer in EG makes claims for solatium (general damages or PSLA award), past and future loss of earnings, disadvantage on the labour market, pension loss and treatment costs. Various issues arise on causation in the context of quantum noting, in particular, the defender’s case that the pursuer was never likely to pursue a career in a professional occupation regardless of the alleged abuse, that he is said to have work issues unrelated to the alleged abuse, and that he was involved in a road traffic accident around ten years ago resulting in a leg injury that required the insertion of metalwork. The court found special cause because “There will be difficulties for the jury as to how the claims for past and future wage loss and loss of employability, along with pension loss should interact” and “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.
  • The pursuer’s written case included allegations of abuse by the teacher of schoolchildren other than the pursuer. There is authoritative Scots law that evidence of similar conduct with other persons is not admissible in a delictual (tortious) claim, unlike the position in a criminal case. On this ground alone, the court found there to be special cause for withholding the case from a civil jury.
  • The delay in the pursuer raising proceedings was claimed, of itself, to amount to special cause. The court rejected this submission because “No sufficiently clear prejudice caused by any delay is identified, let alone anything that would affect the case being determined by a jury.”

As a first instance decision, this judgment does not amount to binding law. Insofar as the decision may be persuasive in other cases, it does not conclude that all childhood abuse claims should be withheld from civil jury trial. It is, nonetheless, interesting as a first reported exploration of the question of special cause in a childhood abuse claim. It is also interesting on pursuer’s agents trying for civil jury trial in this area. Previously, the main area in which pursuers’ agents tried for civil jury trial was in fatal claims where jury awards were often significantly higher than the likely award from a judge trying the case without a jury, with judges then ultimately taking account of the increased figures in judicial awards. It may be that pursuers’ agents will re-formulate their approach to continue to try for civil jury trial in childhood abuse claims.

Assuming that this decision in EG is not appealed, the case will now proceed to a Proof before Answer (of any legal questions) before a judge sitting alone.

Frank Hughes, Partner, and Fiona McEwan, Associate /   

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