O'Neill v Dowding & Mills Plc & Anor

Introduction [1 ] On 5 April 2004 the pursuer sustained serious injuries to his right lower leg when he fell through a gap in a walkway in the course of his employment with the defenders. His present action of damages against the defenders is founded on allegations of both common law fault and breach of statutory duty on their part. In response the defenders concede liability to the pursuer, while at the same time pleading what they term a "right of relief" against the third party whose employees are said to have created the gap in the walkway without warning anyone of its presence.

[2 ] As regards quantification of his loss, the pursuer's averments in condescendence 5 are inter alia to the following effect:

The parties' submissions [4] The position adopted by counsel for the pursuer was straightforward. Starting with pension loss, he maintained that its assessment would not be as complex as his opponents suggested, and to illustrate that he referred me to the 4-step calculation in Mr Pollock's report no.6/8 of process. A pension loss claim would not of itself be a bar to jury trial, and in this case there was no reason to think that a jury would be unable to follow the calculations required.

[12 ] In all the circumstances, it was said, the paucity of information in the pursuer's pleadings, combined with the obvious complexity of the future loss calculations which were liable to be required, rendered the present case unsuitable for trial by jury.

Disposal [21 ] For all of these reasons, especially when they are viewed in combination, I shall refuse the pursuer's motion for issues, and allow parties a proof of their respective averments on the outstanding matters of (i) quantum and (ii) the responsibility (if any) of the third party.