The More Recent Cases

    I do not propose in this chapter to examine all the more recent cases to which we were referred. There are however several cases which need to be mentioned in order to trace the way in which thoughts on this subject have been developing, especially during the latter half of this century as jury trials in actions for personal injury have become less frequent and much more information has become available about an increasingly large volume of awards of damages made by the judges throughout the United Kingdom in cases which did not go to jury trial.

    These cases can be gathered conveniently into three groups. First there is a group of cases in which the so-called rule of 100 per cent permissible error was discussed. Secondly, there are two cases on which Mr. Jones for the defenders particularly relied in support of his argument that the working rule should now be abandoned entirely and that much closer attention should be paid to awards made by the judges. And thirdly there are two recent cases, one of which is the decision by the Second Division which led to the first re-trial. These cases were relied upon particularly by Mr. McEachran for the pursuer as indicating that there had been a move back towards the approach taken in Landell v. Landell regarding the assessment of damages in actions which have been sent for trial by a jury as being essentially a jury matter with which the judges should interfere only with great caution. I shall include in this group the decision of the Extra Division which is before us in this appeal.

(a) The Working Rule

    In McKiernan v. Glasgow Corporation 1919 S.C. 407 an award of solatium to a man for the death of his child was set aside. Lord Mackenzie at p. 409 applied the test laid down by Lord President Inglis in Young v. Glasgow Tramway and Omnibus (Company) Limited (1882) 10 R. 242, 245, that it was altogether so extravagant that no other jury would repeat it. Lord President Strathclyde said at pp. 408-409 that in expressing the opinion that the award was an excessive award he was adopting the standard laid down in Landell v. Landell which, as he put it, "many of our predecessors have adopted." But he went on to refer to Lord President Inglis' remarks in Young v. Glasgow Tramway and Omnibus (Company) Limited that the court was not entitled to set aside the jury's verdict on the ground of excessive damages unless it thought that the verdict ought not to have been for more than one-half of the sum awarded. He had no difficulty in applying that test, as he was of the view that even one half of what had been awarded would have been an excessive verdict. In Elliot v. Glasgow Corporation, 1922 S.C. 146 on the other hand the court declined to interfere with an award of solatium to a man for the death of his child on the ground that, although excessive, it did not exceed twice the sum which a jury might reasonably have awarded. Lord President Clyde said at p. 149 that, having regard to the working rule, it was just possible to allow the verdict to stand and that the pursuer was entitled to the benefit of the doubt on the matter. In Duffy v. Kinneil Cannel and Coking Coal Co., 1930 S.C. 596 and Inglis v. London, Midland and Scottish Railway Co., 1941 S.C. 551 also awards of solatium, although high, were allowed to stand in reliance upon the working rule.

    In McGinley v. Pacitti, 1950 S.C. 364 however the working rule was said by Lord President Cooper to be out of touch with modern practice and to have become obsolete. A new trial was ordered on the ground that, even on the assumption that the rule applied, there was no material on which any reasonable jury could award more than one half of the sum which had been awarded in that case.

    I think that it is important to examine the grounds for the Lord President's criticism, especially as he acknowledged that special considerations would continue to apply to awards of pure solatium. In 1950 the practice was for the jury to answer the issue by assessing damages in a single amount which was not broken down into its various elements. That was a typical case, where the pursuer's claim included substantial sums for loss of earnings for the past and the future as well as solatium. The Lord President pointed out at p. 368 that in all the reported cases except one the working rule had been applied only to awards for pure solatium for the death of a child. He said that in such cases it was little more than one way of stating the rule in Landell v. Landell in its application to a special case. But he went on to say that, where the action was concerned not with solatium in the pure sense but with the assessment of damages for personal injuries, and involved the appraisal and assessment of a number of elements some at least of which--as in that case--were capable of more or less precise quantification, the working rule wore a very different aspect. As he put it, "The ultimate test in such case must be practice and experience, moulded when necessary by quasi-permanent changes in the value of money and in social conditions." He referred to the much greater experience which the court now has of awards in personal injury cases, and to the fall in the value of money which had resulted in the making of awards substantially larger than those previously recorded. He concluded by saying that he did not think that the court would be justified in refusing to use the experience which had been gained in modern practice or in confirming an award which was thousands of pounds in excess of the defender's just liability just because the jury had not doubled, or more than doubled, the sum which a reasonable jury could properly award.

    These are powerful criticisms, and Mr. Jones for the defenders submitted that they had laid a sound foundation for what he suggested was the right approach to be adopted in modern practice. This was to take as the starting point the figure which the court itself considered to be a reasonable award in all the circumstances having regard to known awards in comparable cases and then, after making due allowance for the fact that the jury was exercising a discretion, to proceed to an informed and reasoned decision on the question whether the award was excessive in the same way as it does when reviewing an award by a judge. He pointed out that in Hewitt v. West's Gas Improvement Co. 1955 S.C. 162, 165 Lord President Clyde said that the working rule was no longer followed in practice, that in McCallum v. Paterson 1968 S.C. 280 the matter was decided without reference to the working rule and that in McCallum v. Paterson (No. 2) 1969 S.C. 85, 88 Lord President Clyde said that the working rule had failed in the past and been abandoned. In Macarthur v. Chief Constable, Strathclyde Police, 1969 S.L.T. 517, where the working rule was applied by the court in refusing a motion for a new trial, counsel for the defenders had stated that he was prepared to accept the application of the rule for the purposes of the appeal.

    As I have already noted, however, Lord President Cooper was careful to say that special considerations would continue to apply to awards of pure solatium. While it is clear from his discussion of the earlier cases that when he used this expression he had in mind the comparatively small sums awarded as an acknowledgement of the loss caused by the death of a child or a parent, there seems to me to be no good reason in principle for making a distinction in this context between such cases and awards of solatium as compensation for personal injury. In both cases the award is a payment in money for something which cannot be precisely quantified. According to the practice in 1950 the sums awarded for solatium were not separately identified in the jury's award. But as a result of the change in practice in 1973 it is now possible for the court to examine the jury's award for solatium separately from the other components of their overall assessment of damages. As for Lord President Cooper's reference to the fall in the value of money and the consequent rise in the sums awarded as damages, this does not seem to me to provide a good reason for departing from the working rule if the case is otherwise appropriate for it. The adjustment of figures for past awards to reflect changes in the value of money is now a familiar exercise, so there is no difficulty in identifying changes in the amount of awards of damages in real terms. If awards of damages in Scotland have been growing in real terms over the years, this is more likely to reflect the increasing influence of English awards with which awards in Scotland were previously out of touch: see Allan v. Scott, 1972 S.C. 59. Finally I note that in Macarthur v. Chief Constable, Strathclyde Police, 1969 S.L.T. 517, 522F Lord Wylie said that in cases of solatium for personal injury of which that case was an example, the working rule might still be applicable.

    It seems to me therefore that the so-called working rule may still have a useful part to play in cases where the award under consideration is one for solatium for personal injuries. The obstacle which was created by the earlier practice by which the jury's overall award was not broken down into its elements has been removed. The amount to be awarded for solatium depends upon an exercise of judgment. The working rule can be seen as no more than a convenient way of illustrating the margin for error which must be allowed in such a case before a jury's award can be said to be so extravagant that no other jury would repeat it.

(b) Hewitt and McGregor

    The first case in this group of cases on which Mr. Jones relied is Hewitt v. West's Gas Improvement Co., 1955 S.C. 162. The case was complicated by the fact that the claim was by a widow and her seven children and the court was concerned with the question whether the aggregate of the awards was so excessive as to warrant a new trial. Mr. Jones said that, as the working rule was expressly departed from in that case, it was an example of the judges relying on their own personal experience of awards in similar cases in considering what it would have been reasonable for a jury to award. That was how Lord Sorn described his approach at p. 174. But Lord Russell based his opinion on Landell v. Landell and Lord President Clyde, with whom Lord Carmont agreed on this point, adopted the test described by Lord President Cooper in Campbell v. West of Scotland Shipbreaking Co. 1953 S.C. 173, 175 which was a repetition, albeit in different words in what appears to have been an extempore judgment, of the test laid down in Landell. It does not seem to me that this case adds anything to the discussion in the previous authorities.

    The other case in this group requires more careful examination. It is McGregor v. Webster's Executors 1976 S.L.T. 29, in which a new trial was ordered on the ground that the jury's awards for solatium and for future loss of earnings were significantly in excess of what a reasonable jury would have been expected to award. The case is of interest because of the way in which Lord President Emslie approached the question, as to which he said there had really been no dispute between the parties. He said that it was common ground that, in applying the test whether the awards were out of all proportion to the circumstances of the case, the court must first make its own judicial assessment, guided by experience and the application of common sense and according to the social standards reflected in the general level of awards in comparable cases. Then the court must seek to discover the standard of the reasonable jury and consider what latitude on either side of the judicial assessment could not be described as unreasonable if the scope for wide divergence of opinion was to be given full recognition. In applying this approach to the jury's award for solatium in that case, he said that his opinion was that a proper judicial assessment would not have exceeded £25,000. The jury had awarded half as much again, namely £37,500. That was excessive because, while £5,000 or thereby more or less than his judicial assessment could not have been described as unreasonable, an award which was significantly outside those limits was one which no reasonable jury would have made. Clearly, if the working rule had been applied in that case the pursuer would have had no difficulty in defending the jury's award.

    Lord Johnston and Lord Avonside agreed with the Lord President, but Lord Cameron made it clear that he disagreed with this approach at the second stage. He was prepared to accept that a consideration of awards made by judges would be helpful. But he said at p. 34 that in his opinion there was no rigid rule or even rule of thumb to be derived from the authorities beyond that which could be derived from the judgment of the whole court in Landell v. Landell and the judgment of Lord President Cooper in McGinley v. Pacitti. At p. 35 he said that he would be very reluctant indeed, in a case where the jury had had the advantage of forming a personal judgment of the pursuer's condition and demeanour when they saw her in the witness box, to reach the conclusion that the jury's award was so excessive that no reasonable jury would repeat it. He thought that this was the true test, under reference to what Lord President Inglis had said in Young v. Glasgow Tramway and Omnibus (Limited) at p. 245. He explained that in his opinion there would be no sense in sending a case to a second jury if there were a risk of any materiality that the second jury would repeat the assumed dereliction of the first.

    Mr. Jones said that this case showed that the proper approach was to scrutinise a jury's award in a manner which did not differ very much from a review of an award made by a judge. The second step described by Lord President Emslie allowed ample room for the latitude which needed to be given to awards made by a jury. It was appropriate to allow a margin on either side of the proper judicial assessment in order to establish the range within which a reasonable jury could place its award. Once that was done, the court had done all it needed to do in order to decide whether the award was excessive. He criticised the cases in the next group on the ground that no reference was made in either of them to either Hewitt or McGregor. He said that, if the approach taken in McGregor were to be adopted in this case, it could be seen that it was a clear case for a new trial.

    In my opinion the second stage in the approach taken in McGregor by Lord President Emslie was a significant departure from that which had been taken in all the previous cases, and I do not think that it was consistent with what was said in Landell v. Landell. I have no criticism to make of the first stage. The making of a proper judicial assessment of the value of the claim is the logical starting point for the exercise, and there is ample information available in current practice to enable this to be done. It is the second stage which creates the difficulty. I think that one can detect here a clear preference for greater consistency between awards made by juries and those made by the judges. The comparatively narrow margin for error on either side of the proper judicial assessment reflects this approach. There is much to be said for it on the grounds of fairness to all parties, and in the interests of a more orderly and predictable system for the awarding of damages. But the fact is that, as the law stands at present and as Lord Cameron observed in explaining his difference of opinion, the only method which is available for correcting an award made by a jury is to send the case back for a new trial by another jury. Also the jury do not have the benefit of the proper judicial assessment in deciding what figure they should chose as their starting point. There is no logical or convenient bridge between the two methods of assessing damages. And, as Lord Cameron pointed out at p. 32, an excessive award by a judge may be corrected forthwith by the appeal court, whereas the only method available for correcting a jury's award will result in delay and added expense to the parties.

    It seems to me therefore that Lord Cameron was right to decline to follow an approach which would have had the result, as he said at p. 34, of trimming awards made by juries to meet the pattern of judicial awards, and that the second stage as described by Lord President Emslie is one which should not be followed. It fails to recognise the scope which it is necessary to give to awards by juries in the light of the only means which is available for them to be corrected.

(c) Girvan and Currie

    The first of the cases in this group is the decision of the Second Division which resulted in the new trial in the present case: Girvan v. Inverness Farmers Dairy, 1995 S.L.T. 735. All that needs to be said about this case is that in delivering the opinion of the court at p. 738J Lord Justice-Clerk Ross said that the court had to adopt a fairly broad approach and that any previous awards whether by a judge or by a jury were no more than a rough guide. He said that the proper approach was that laid down in Landell v. Landell.

    In Currie v. Kilmarnock and Loudon District Council, 1996 S.L.T. 481 it was again said that the proper approach was that laid down in Landell v. Landell. Lord Prosser accepted at p. 485I that information about what the judges were awarding for solatium offered a more certain starting point for an examination of a jury's award than the working rule. But he went on to say at p. 485J-K that a court must be very hesitant before saying that any discrepancy between what the jury had done and what judges do represented a failure on their part of the kind described in Landell v. Landell. He added that the working rule could still be seen as having some usefulness, but that as circumstances vary he would be reluctant to give it any prior or overall status. In my own opinion, sitting in that case as Lord President, I said that I was doubtful about the value of the application of the working rule to the material which had been placed before the court, and that it was open to question whether awards made by judges updated by means of the Retail Price Index was a true reflection of a reasonable jury's concept of the value of money. I also said that there was a risk that, by adhering to the relatively narrow band within which judges operate, judges would become increasingly out of touch with awards made by juries in the exercise of their proper function. I should add that we were informed that steps are now being taken to include all awards made in the Court of Session by juries in the information about past awards in Paton on Damages. This initiative is to be commended, as the making of this information available in this way will ensure that judges will be able to take account of awards made by juries when making their own assessment.

    The approach which was taken in these two cases was followed by Lord McCluskey and Lord Kirkwood in the present case. Lord McCluskey referred to what was said in Girvan about the need to take a fairly broad approach and to the fact that in Currie the court had applied what had been said in Landell v. Landell. But he observed that this guidance took the court only to the threshold of the problem and that it was of rather limited assistance in providing an answer to the case. Lord Kirkwood also referred to the need to take a broad approach and said that previous awards by judges or juries could be no more than a rough guide. As to the working rule he pointed out at p. 637E that there would be a risk of injustice if it was sought to apply it to the top and bottom of the range of figures which were open to a reasonable jury and that if it were to be applied at all it should be applied to the figure which resulted from the court's own assessment of the value of the claim. He added that it should be applied with caution, particularly in cases of high value, and that it should in any event be used as no more than a rough check when applying the basic test set out in Landell v. Landell.

    Although Lord Abernethy differed in the result, he was in broad agreement with the other two judges about the approach which should be adopted. His dissent indicates that the award of the second jury in this case, while substantially less than that made by the first jury, was nevertheless a very high award and that the decision whether there should be a second new trial was not an easy one. But, while Lord Abernethy accepted what he described as the classic statement of principle in Landell v. Landell, there were some significant differences in his approach. First he set out in his opinion a much more detailed analysis of the comparable awards in order to explain why he was of the opinion that he would not have been entitled as a judge to make an award for solatium which would approach one half of what the jury had awarded in this case. Secondly he said at p. 641A that he was not able to derive any assistance from the award made by the first jury in this case as it had been held to be excessive by the court or from the award by the second jury as it was under challenge in these proceedings. Lord McCluskey on the other hand said at p. 634J that in his opinion it would be wrong to ignore the information about the second jury award, although it was no more than one pointer in the case and the court should be careful not to depart from its judicial responsibility. Lord Kirkwood said at p. 638D that he had taken into account the award which was under challenge and the award which had been made by the first jury. This difference of opinion raises an important point which I shall discuss later.

    Mr. McEachran invited us to approve of the approach which had been taken in Girvan and Currie in preference to that which was contended for by Mr. Jones. It will be necessary for me to discuss this point also at a later stage in this speech.