The English Cases

    It is necessary to return at this point to the English cases, first in order to see how matters stood before a series of reforms were undertaken in the interests of uniformity in the making of awards of damages for personal injury, and secondly to see how matters now stand in the light of these reforms.

    In Scott v. Musial [1959] 2 Q.B. 429, 437-438 Morris L.J. described the difference of approach which the Court of Appeal had to take when considering awards of damages made by juries and those made by judges. He pointed out that in jury cases it was not open to the Court of Appeal to substitute its own judgment for that of the jury in regard to the assessment of damages:

 "Where the order of the court has been that trial is to be with a jury, then twelve jurors have collectively (and, be it remembered, unanimously) to decide on an assessment. On appeal, always assuming that the trial has been properly conducted and that the jury have been properly directed, it is not for the members of the Court of Appeal to seek to substitute their assessment and their judgment for that of the jury; the function of the Court of Appeal is then directed to considering whether or not the figure stated by the jury is out of all proportion to the circumstances of the case. Unless it is, this court must not interfere. The jury do not have to give reasons, and it may be impossible to deduce how the jury have regarded the particular individual features of a claim, such as, for example, in a personal injuries case, pain and suffering, deprivation of the amenities of life, and future possible loss of earnings. To warrant any interference with the award of a jury it is not enough to say that the award is more, or even much more, or less, or even much less, than what the judges of the Court of Appeal would consider to be the appropriate amount. The Court of Appeal will not interfere if the figure is one which a jury, acting properly, might award. Interference will be justified if it is made to appear that the jury must have acted improperly and so have brought about a palpably wrong result. If the figure of an award seems to be outrageous, or so extravagant that no other jury would repeat it, then there might, in some cases, be ground for suspecting that a jury has been partial or perverse. But, as the Court of Appeal will only have the figure, as announced by the jury, to consider, the Court will have to decide, on a consideration of the figure itself, whether it appears so excessive or so inadequate that no twelve reasonable jurors could reasonably have awarded it; or, stated otherwise, whether the figure appears to be out of all proportion to the circumstances of the case."

This approach to the function of the appeal court seems to me to be entirely in accordance with what the whole court had laid down in Landell v. Landell.

    The next case, Sims v. William Howard and Son Ltd [1964] 2 Q.B. 409, shows that the English judges have had, since the coming into operation of section 6 of the Administration of Justice (Miscellaneous Provisions) Act 1933, a much wider discretion than that which is enjoyed by the Scottish judges as to the question whether an action of damages for personal injury should go to jury trial. Section 9(b) of the Court of Session Act 1988 requires special cause to be shown if a jury trial is to be withheld from one of the causes enumerated in section 11 of the Act. In Sims v. William Howard and Son Ltd it was held that it was not now a correct exercise of the discretion under R.S.C. Ord. 36 r. 1 to order trial by jury in a case of personal injuries which involved the assessment of damages unless there were exceptional circumstances. The reason for this decision was stated by Lord Denning M.R. at pp. 415-416 where he pointed out that it was now recognised that in personal injury cases there should, so far as possible, be some degree of uniformity in order that there be justice between plaintiff and plaintiff and defendant and defendant. It was not fair or just that one injured man should get twice as much as another for very similar injuries, and the judges had evolved a scale which was well known and applied daily up and down the country. Bearing in mind that, if a judge should seriously depart from the scale it could be put right by the appeal court while with a jury that was not so, the principle of uniformity was a relevant consideration for a judge to take into account when he was considering the mode of trial. But it has never been suggested in a Scottish case--nor do I think that it could be suggested, in view of the provisions of section 9 of the Court of Session Act 1988--that the principle of uniformity in regard to awards of damages could provide special cause for withholding an action of damages for personal injury from jury trial. If that were so it would provide a ground for denying a jury trial to almost every case in which the quantum of damages was in dispute. That would be inconsistent with the statutory rule that an enumerated cause should be withheld from jury trial only if special cause is shown.

    The principle of uniformity was taken one step further in Ward v. James [1966] 1 Q.B. 273. In that case the appeal, which raised several important issues of practice in regard to the respective functions of the judge and of the Court of Appeal regarding jury trials, was adjourned for hearing by the full court. It was held by five judges that in cases of damages for personal injury it was a most material consideration for the judge to bear in mind when ordering a trial by jury that an award of damages in such cases was, as Lord Denning M.R. put it at p. 303, basically a conventional figure derived from experience and from awards in previous cases which a judge knows about but a jury does not. So a judge should not order a trial by a jury except in exceptional circumstances. It was also held that in such cases the Court of Appeal would set aside an award of damages by a jury if it was out of all proportion to the circumstances of the case. Lord Denning M.R. said at p. 301 that the court was not changing the principle on which the earlier cases including Scott v. Musial were decided but was altering the emphasis. He went on to say that on setting aside the award the appeal court had power to order the fresh assessment to be made by a judge alone. This was because there was not, as in the old days, a right to trial by jury, as the mode of trial was now a matter of discretion under section 6 of the Administration of Justice (Miscellaneous Provisions) Act 1933. But at pp. 301-303 he rejected, as a possible means of securing uniformity, the giving of more guidance to juries about the level of the award--a subject to which I shall return later.

    In Wright v. British Railways Board [1983] 2 A.C. 773, 777E Lord Diplock, who was a member of the Court of Appeal in Ward v. James, said that the guidance in that case had been laid down in the interests of uniformity and predictability. But the current legislation in Scotland precludes that approach. It would not be consistent with what was said in Landell v. Landell to describe an award of damages made by a jury as a conventional figure derived from experience and from previous awards--although this description can quite properly be applied to awards made by judges.

    In Broome v. Cassell & Co. [1972] A.C. 1027, 1090G- 1091A, in which the issue on appeal was that of exemplary damages, Lord Reid observed that he would have liked to have held that the court had more control over an award of punitive damages than it had over an award of conventional damages. He pointed out that, as regards the latter, it was quite clear that a court could only interfere if satisfied that no twelve reasonable men could have awarded so large a sum:

 " . . . and the reason for that is plain. The court has no power to substitute its own assessment for the verdict of a jury. If it interferes it can only send the matter back to another jury. So before it can interfere it must be well satisfied that no other jury would award so large a sum. I do not see how this House could arrogate to itself any wider power with regard to punitive damages. We could not deprive the plaintiff of his right to a new trial so we must adhere to the established test."

But, as Lord Woolf M.R. observed in Thompson v. Commissioner of Police of the Metropolis [1997] 2 All E.R. 762, 770A, the position described in that passage was fundamentally changed by section 8 of the Courts and Legal Services Act 1990 and R.S.C. Ord. 59, r. 11(4) which gave jurisdiction to the Court of Appeal, where it had power to order a new trial on the ground that the jury had awarded excessive damages, to substitute for the sum awarded by the jury such sum as appeared to the Appeal Court to be a proper award.

    The position in England has therefore advanced almost beyond recognition from that which obtained when the system of trial by jury was introduced to Scotland by the Act of 1815. First, it is in the discretion of the trial judge whether a case should go to trial by a jury, and that discretion will only be exercised in favour of trial by jury in exceptional circumstances. The result has been that in practice cases of this kind are now tried exclusively by the judges. Second, the Court of Appeal has power in the exercise of its discretion, if persuaded that a jury has awarded excessive damages, to send the case back to a judge for a fresh assessment. And third, the Court of Appeal is entitled, in a case where it has power to order a new trial on the ground of excess or inadequacy of damages, to substitute for the jury's award such sum as it considers appropriate. This, it will be recalled, is the solution which was recommended for Scotland by Lord Guthrie in McCallum v. Paterson (No. 2) 1969 S.C. 85, 92, as Lord Abernethy has reminded us in the present case. Yet in Scotland the legislation continues to give preference to the system of trial by jury in actions of damages for personal injury, and there is no escape from a further jury trial if the sum awarded by the first jury is excessive or inadequate. In practice by far the greater number of such actions which are contested go to proof before a judge. But that is because there is wide scope for finding special cause in a particular case for withholding it from jury trial, and because in many cases pursuers are content to waive their right to a jury trial.

The Proper Approach

    In the light of this review I think that there can be no doubt that the proper approach to the question whether an award of solatium has resulted in an excess of damages remains that which was described in Landell v. Landell. That was a decision of the whole court, and as such is one of high authority. It has been followed almost without exception in the Court of Session ever since. It is consistent with the approach which was described by Morris L.J. in Scott v. Musial. There is no reason to think that there was any misunderstanding of the English cases on which the majority of the judges in Landell v. Landell based their opinion. It is an accurate reflection of the principles which lay behind the legislation and of the fact that the only means of correcting an award by a jury is to send the case back for a new trial before another jury.

    It follows that, if a series of new trials is to be avoided, a fairly broad approach must still be taken to the question whether the jury have committed a gross injustice or reached a palpably wrong result. But we can now accept, in view of the insufficiency in modern practice of jury awards as a basis for comparison and without departing from the underlying principles, that it is open to the court, if it finds this helpful, to consider the matter in two stages. In this respect useful guidance is to be found in McGregor v. Webster's Executors. It can take as its starting point its own assessment of the sum which it would be appropriate to award upon a proper judicial assessment of the value of the claim. Clearly the court has to start somewhere, even although a broad approach has to be taken in reaching the result. And this clearly is a legitimate starting point, as the court cannot approach the question whether there was an excess or inadequacy of damages without having some regard to the awards made in similar cases. So awards made by both judges and juries should be taken into account at this stage. The result of this exercise is likely to be the assessment of a relatively narrow range of figures within which a judge, if presented with the same evidence, could properly place his award. The majority of the information used for the purposes of this exercise is likely to come from awards made by the judges. Where there are jury awards in similar cases they should be taken into account also. But no greater weight should be attached to them than would be given to them by a judge when making his assessment. A jury award which has been successfully challenged in a motion for a new trial or is under challenge in a case which has still to be heard would not be taken into account by a judge when making his assessment, so it should be disregarded at this stage.

    But then there is the next stage, when the court's assessment must be compared with the jury's award. In the case of an award for patrimonial loss, where the matter is capable of reasonably precise calculation, a relatively small departure from the judicial assessment may be enough to enable the court to say that there was a gross injustice or that the result was palpably wrong. It is clear that the working rule of 100 per cent. permissible error can have no application to such a case. It would be manifestly unjust for a pursuer to receive twice as much as he ought to have done if the amount of his award can be reduced to arithmetic. The same may be true where the award depends on the application to known figures of a factor such as a multiplier which cannot vary widely from case to case. But if the award is for solatium only, or it is the solatium element in the award only which is under attack, the position is different. This is not a figure which is capable of precise calculation. Reasonably and fair minded jurors may quite properly arrive at widely differing figures in making their assessment of the amount to be awarded for pain and suffering and general inconvenience. It has to be recognised that a reasonable jury, when asked to value in money a claim for damages which cannot be calculated, may arrive at a result which is different from that which a judge will reach when basing his decision on previous awards. We have come a long way since 1815 when it was regarded as perfectly proper, subject only to limited safeguards, to leave it entirely to a jury to assess damages. But if there is any justification for preserving the present system it lies in this fact: that judges may, because of the different nature of the exercise on which they are engaged and their background of experience, take a quite different view from twelve ordinary men and women on the jury as to the current money value of the pursuer's claim.

    It is in this context that the so-called working rule must be regarded. It cannot be treated, and was never intended to be treated, as a precise formula. It is no more than a rule of thumb, or a check, which the court may use as a guide to the decision in each case. It is really no more than a convenient way of describing the test laid down in Landell v. Landell in order to illustrate the width of the approach. The court can use it or depart from it as it thinks fit. Two particular points however should be made. The first is that, in order to make sense of the rule in the light of current practice, the starting point for its application must be the figure, or the upper end of any range of figures, resulting from the judicial assessment. I agree with the observations of Lord Kirkwood and Lord Abernethy in the present case that any other approach would result in too great a latitude. I do not think that Lord President Inglis had any other point than his own assessment of the appropriate award in mind when he first formulated the working rule in Young v. Glasgow Tramway and Omnibus Company (Limited).

    The second point is that, in a case such as the present, where the case has already gone before a second jury for a new trial and the question is whether it should be sent to a jury for a third time, it would, as Lord McCluskey said in the present case, be wrong to ignore the figures which the two previous juries arrived at in the overall assessment of whether the second award was an excessive award. To take these figures into account at the second stage is not a departure from judicial responsibility. On the contrary, the question before the court is whether the case should be sent back to a jury for a third trial. As Lord Reid said in Broome v. Cassell & Co. at p. 1090H, before the court can properly do this it must be well satisfied that no other jury would award so large a sum. I do not see how the court can properly disregard what the two previous juries have done in forming a view as two what a third jury would be likely to do on hearing the same evidence. But the court has its own responsibility to discharge, and this is only one factor to be taken into account in reaching the overall view as to whether there should be a new trial.

    In McCallum v. Paterson (No. 2) 1969 S.C. 85, Lord President Clyde said, of the argument that the court should be very reluctant to interfere with a verdict which had been made and reaffirmed by two separate and independent juries, that this was quite the wrong approach. He maintained that the fact the first jury awarded a sum which on a motion for a new trial was regarded as excessive did not conclude the matter one way or the other in a motion following on the second trial, and at p. 88 he emphatically rejected the suggestion that it was not expedient to award a third trial:

 "We must consider the matter in the light of the evidence led at the second trial, and if in our view the award was excessive, then it is our duty in accordance with the statute to order a new trial once more. In some of the cases it was suggested by the judges that it was not expedient to order a third jury trial in any case . . . But it appears to me that expediency is emphatically not the proper test. Parliament has envisaged that, if an excessive award is made, the court on a motion for a new trial may order a fresh one, even if this means a succession of abortive trials. This is a consequence of the jury trial system, and if a pursuer wishes to avoid the risk of it-- and a verdict based on sympathy is quite a possibility where a jury is concerned--he can avoid the risk by asking for a proof. There are many decided cases where third trials have been ordered, just because justice to the parties requires the upsetting of the earlier verdicts."

    It seems to me that this passage contains a somewhat extravagant view of the intention of Parliament when it enacted the Jury Trials (Scotland) Act 1815. The idea that there could be a succession of abortive trials, all on the question of the appropriate award of damages, is far removed from the cautious approach with the consulted judges took in Landell v. Landell to the question whether there was an excess. If that question is approached in the right way, one new trial should be sufficient to correct the excess, because it is unlikely that a second jury will reach a result which the court will be able to say is manifestly unjust. If the second jury arrive at a figure which is substantially the same as that reached by the first jury, this will tend to support the first jury's figure as being one which a reasonable jury will award. It should also be mentioned that Lord President Clyde's observation, in the context of a motion for a new trial on the ground of excessive damages, that there are many decided cases where third trials have been ordered is not borne out by an examination of the reported cases where earlier verdicts have been upset. We were informed by counsel that only three cases are recorded in the Faculty Digest prior to McCallum v. Paterson (No. 2), where a third new trial has been allowed and that that case is the only one which has been sent back to a third jury on the ground of an excess of damages. We cannot overrule that decision as it was, as in all such cases, a decision on its own facts. But I think that these observations should be now disapproved.