The Present Case

    I do not think that it is necessary to go into the facts of this case in detail, or into the pattern of previous awards to which we were referred by counsel, because I am satisfied that the majority of the judges of the Extra Division were right to refuse the motion for a new trial. It is appropriate however that I should say something about the pursuer's injuries and the factors which were included in his claim for solatium, and then summarise the broad picture which is presented by the information which is available about past awards. The following description of the pursuer's injuries was given by Lord Justice Clerk Ross in Girvan (No. 1) 1995 S.L.T. 735, 737G-H:

 "In the accident the pursuer sustained a laceration to the head and a laceration to the knee, but by far the most serious injury was a fracture of the right elbow which had resulted in grave consequences upon the pursuer's work life, his domestic life and generally upon his capacity to enjoy life. The trial judge in his charge reminded the jury that they might well consider that the injury to the elbow alone was a serious and disabling injury with substantial long-term effects upon the pursuer's enjoyment of life. One special feature of the pursuer's claim was that the injury to the elbow had made it impossible for the pursuer to continue as a dedicated clay pigeon shot which was something he had enjoyed in the past and in which he had had a considerable measure of success in the world of competition."

    In the statement of facts and issues it has been agreed that the injury to the pursuer's right arm was a very severe injury as a result of which he was in great pain, that after his initial operation and treatment in hospital, prolonged physiotherapy and a further operation he was still left at the time of the trial with a severely disabled arm which caused pain especially in cold and wet weather and after exertion, that the reduction in movement at the elbow joint was likely to get worse in the future and that the elbow might stiffen completely. The disability has had a profound effect on his life in every aspect, including his work on the farm. He was an outstanding clay target shot, having represented Scotland and Great Britain in international competitions and won numerous medals and competitions including a bronze medal in the 1982 Commonwealth Games and the European Championship in 1988. He was training for the 1990 Commonwealth Games at the time of the accident and his ambition was to represent the United Kingdom at the Olympic Games. He has found it very hard to accept that he is unable to continue with competitive shooting which was his way of life.

    Mr. Jones referred us to a number of reported awards made by judges for elbow and other arm injuries and to the Judicial Studies Board Guidelines for the Assessment of General Damage in Personal Injury Cases (2nd ed. July 1994) for these categories. Much of this information has been summarised by Lord Abernethy (1996 S.L.T. 631, 640G-K) and I do not need to repeat it. Mr. Jones accepted that an allowance had also to be made for the loss of enjoyment of the sporting activity, but said that this would have to be proportionate. After comparing these figures with several much higher awards for very severe injuries he submitted that a fair award by a judge for solatium in this case would have been in the range of £25,000 to £30,000, and that it was plain that the jury's award in this case was excessive and should be set aside. Mr. McEachran on the other hand said that the jury were entitled to take the most serious view that was open to them on the evidence. The injury was a very severe and painful one of its kind. Added to that was the fact--not matched in any of the cases to which Mr. Jones had referred--that the pursuer was competing at the top of his sport. The loss of the sense of satisfaction and achievement and of the quality of life which went with this was something which the jury were entitled to regard very highly. He submitted that, when account was taken of the award which was upheld in Currie v. Kilmarnock and Loudon District Council 1996 S.L.T. 481 and several other jury awards including that made by the first jury in the case the award by the second jury fitted quite neatly into that pattern. On this view it could not be said to be excessive.

    The award which has been made in the present case is undoubtedly a high one in comparison with awards made by judges for similar injuries. I would be inclined to set the figure for the appropriate judicial award, taking the most pessimistic view of all the physical and emotional effects of the injury--but leaving out of account the effect on the pursuer's sporting activities--at about £25,000 to £30,000. But the factor which I have left out of account in this assessment is a factor of great importance, because a jury would be entitled to attach great weight to it in reaching their view as to how much money should be paid to the pursuer to compensate him for what, in this respect, he has lost. I do not think that it is helpful in this case to go further with the question what a judge could properly have awarded after taking this element into account. This element is so obviously one for a jury to assess. In this case we now have the benefit of two jury awards, and the award by the second jury is £25,000 less than the first. When account is taken of that fact, I find it quite impossible to say that no other jury would award such a large sum. I do not need to apply the working rule, because a broad view of all the elements in the pursuer's claim and the fact that this is the second award made by a jury on this evidence persuades me that it does not amount to an excessive award of the kind described in Landell v. Landell.

Changes in Practice

    As Lord Abernethy said in his dissenting opinion in the present case (1996 S.L.T. 631, 642I), the question whether there should be a greater uniformity between awards by judges and those made by juries is one of considerable importance. Uniformity is a desirable aim in itself in the interests of fairness between pursuer and pursuer and defender and defender, and in order that the level of awards may be predictable. It is this factor which was the principal driving force behind the reforms which have been made in England both by the Court of Appeal and by Parliament. There is also the public interest to consider. If there is no general pattern of awards, cases are less likely to be settled and more cases will have to go to trial. While it is difficult to predict what will happen in the future, there are now signs of a small increase in the number of jury trials and a decision in the pursuer's favour is likely to increase this trend. So the problem of lack of uniformity and unpredictability is unlikely to disappear.

    It was suggested in the course of the argument that the Court of Session should adopt the practice which has now been introduced in England by Thompson v. Commissioner of Police of the Metropolis in cases where damages are being awarded by juries to members of the public for unlawful conduct against them by the police. In that case it was held that juries should in future be given guidance by the judge as to the awards of damages regarded as appropriate in personal injury cases for particular injuries and the figure which he considered it would be appropriate to award in the circumstances. In the present case at p. 643C-D Lord Abernethy has suggested that urgent consideration should be given to a corresponding move in civil jury trials in Scotland. He has also endorsed Lord Guthrie's observation in McCallum v. Paterson (No.2) that it might be advisable by legislation to confer on the court power to assess damages on a successful motion for a new trial and so save further procedure.

    I have the following observations to make on these suggestions. In the first place it would, I believe, be inappropriate for your Lordships to recommend changes in the practice which is followed by the Court of Session in the conduct of jury trials in its own court. The Court of Session is, in a very real sense, the master of its own procedure. It has been said several times in the Inner House, on motions for leave to appeal in interlocutory matters, that it is not appropriate to refer matters of practice for decision by the House of Lords: Frame v. Caledonian Railway Co., 1913 2 S.L.T. 368; Whitehill v. Corporation of Glasgow, 1915 S.C. 1011; McIntosh v. British Railways Board (No.2) 1990 S.L.T. 641. The basis for this view is that the Court of Session is far better placed than your Lordships can ever be to assess what changes in procedure or practice can appropriately be made and, if they were to be made, what would be their consequences. The Court of Session has power under section 5 of the Court of Session Act 1988 by act of sederunt to regulate and prescribe the procedure to be followed in that court. The Court of Session Rules Council which has been established under section 8 of that Act has the function of considering what changes ought to be made to the rules from time to time and to make recommendations. Both branches of the legal profession whose members practise in that court are represented on this council, which provides an appropriate forum for consultation when changes to the rules are being proposed. The Court of Session is thus well equipped to keep its own rules under regular review, and it has the ability to change or modify those rules with the minimum of delay by act of sederunt or practice note or by a decision of the court which can be reviewed, if necessary, by a larger court. By way of contrast, a decision by your Lordships on a matter of practice would lack the process of consultation which is needed to ensure general acceptability. It would also lack flexibility, as a decision of this House would be binding on the Court of Session and it would be very difficult to reverse except by legislation. The proper approach for this House to take therefore is to leave it to the Court of Session to decide what changes, if any, should be made to its own rules.

    The second observation is this. As Lord Abernethy mentioned in his opinion, the question whether juries should be given more guidance was considered recently by the Court of Session Rules Council, and Council decided against making any change. It was my function, as I was the chairman of the Rules Council at the time, to preside at the meetings at which this matter was discussed. It became clear in the course of these discussions that questions of considerable difficulty were likely to arise if the rules were to be changed to enable juries to be given information about comparable cases or even about the appropriate range within which to place their award. The problem did not lie in the drafting of the required changes in the rules and the accompanying practice note. It lay in the complex nature of the procedure which was likely to result and the delays and expense which this might cause. The objections which were raised on behalf of practitioners were similar to those mentioned by Lord Denning M.R. in Ward v. James at p. 302C-E when giving his explanation for the conclusion that the Court of Appeal in England could not sanction a departure from the current practice in the conduct of civil jury trials. I do not wish to be taken as saying that these objections are insuperable. All I need say is that they were sufficiently formidable to persuade the Rules Council as then constituted that the balance of advantage lay in making no change to the existing practice.

    The third observation raises a more fundamental point, which was also drawn to the attention of the Court of Session Rules Council and was one of the principal reasons why the possibility of making changes to the existing practice was not pursued. It is also a reply to the suggestion that it might be advisable by legislation to confer on the Inner House a power to assess damages on a successful motion for a new trial and thus save further procedure. This suggestion is, at first sight, an attractive one. But on further examination it seems to me to raise a fundamental issue of principle. This is whether it is still appropriate for damages in personal injury cases to be left to juries or whether the time has now come in Scotland, as in England, to alter the balance of the whole system in favour of judge-made awards. The existing legislation does not permit this, for reasons which I have already sought to explain. A piecemeal alteration to the existing system will cause confusion, and before long further changes will be inevitable. If reforms are to be made it may be thought that they should follow the English pattern, enabling judges to withhold a cause from jury trial in a case of disputed damages except in exceptional circumstances and enabling the Inner House, in those cases which do go to jury trial, to substitute its own assessment for the jury's award if it is persuaded that the award was excessive or inadequate. But the question whether such changes are desirable is a difficult one on which I suggest your Lordships should decline to express an opinion. This is something which is best left for consideration by the Scottish Law Commission, so that a more complete study of the whole matter may be undertaken and a recommendation made for legislation, if thought appropriate, after all interested parties have been consulted.

Conclusion

    For the reasons which I have given I think that the majority of the judges of the Extra Division reached the right result in this case for the right reasons, and I would dismiss this appeal.

LORD CLYDE

My Lords,

    I agree with my noble and learned friend Lord Hope of Craighead that this appeal should be refused. In particular I agree that the standard to be adopted in deciding whether or not a new trial should be allowed where the allegation is made of an excessively high award of damages remains that which was authoritatively expressed in Landell v. Landell (1841) 3D 819. While the judges were divided in the result of that particular case, one theme which runs through several of the opinions both of the majority and of the minority of the judges is a concern that justice must be done between the parties. That consideration is echoed in the legislation. Section 29(1) of the Court of Session Act 1988 adds to the specific grounds for an application for a new trial "or on such other ground as is essential to the justice of the cause." Section 30(3) provides that where the Court:

 "is of opinion that the only ground for granting a new trial is either excess of damages or such inadequacy of damages as to show that a new trial is essential to the justice of the cause, it may grant a new trial restricted to the question of the amount of damages only."

But while the standard which may justify the ordering of a new trial on the ground of an excessive award of damages can be formulated in general terms in such language as was used in Landell, the precise method of its application in a particular case does not seem to me to be capable of definition by any single formula and has to remain a matter for the Court to resolve in the circumstances of the particular case.

    The present case is one like M'Callum v. Paterson 1969 S.C. 85 where a third trial is being sought. There are three observations which I should wish to make in that connection, in particular in relation to the opinion of the Lord President (Clyde) in that case. In the first place it seems to me that the fact that it is a third trial which is being sought does not touch on the requirement to secure that justice must be done between the parties. As the Lord President said, expediency is not the proper test. If the second award is held to be excessive then the Court should not acquiesce in the result simply on grounds of expediency.

    Secondly, it is in my view correct to say that the fact that the award in the first trial was held to be excessive does not conclude the matter one way or the other in the motion for a third new trial. In assessing the significance of the first award at the stage of deciding to grant a new trial after the second one, consideration must be given to the evidence on which each was made. If the evidence in the second trial is different in some respect from the first, the significance of the earlier award will be considerably reduced. In M'Callum one problem was that a new factor had been raised by the judge before the jury in the second trial without the parties having had an opportunity to deal with it.

    Thirdly, if the second award is held after a consideration of the evidence to be excessive then the court should intervene in the interests of justice even although that may render the earlier two trials abortive. That should be the situation in all applications for a new trial whatever the grounds for the motion may be, subject to the particular courses which are open to the Court under the statute. The Lord President in M'Callum v. Paterson put the matter quite generally in saying that: "There are many decided cases where third trials have been ordered, just because justice to the parties requires the upsetting of the earlier verdicts." He had before him the observation of Lord Murray in M'Knight v. General Motor Carrying Co. 1936 S.C. 17, 25, in the general context of jury verdicts that "our books contain ample precedent for granting even a third trial." For example in Watson v. North British Railway Co. (1904) 7F 220 a third trial was allowed because as the Lord President put it (p. 222) "it is our duty to prevent an injustice being done." On the other hand the fact that two juries have reached the same view of the facts may make it unlikely that a third trial would be a benefit to the cause of justice (M'Quilkin v. Glasgow District Subway Co. (1902) 4F 462). In these respects I would not wish to take issue with what was said in M'Callum.

    The suggestion was made by Lord Guthrie in M'Callum (at p. 92) that the Court should be given power to assess damages itself in hearing a motion for a new trial. While that formal power has not been granted there have been cases where a resolution has been achieved by the Court. For example in Wallace v. West Calder Co-operative Society Ltd. (1888) 15 R 307 the parties consented to the quantification of the award being determined by the Court. In Johnston v. Dilke (1875) 2 R 836 the Court put a revised figure to the pursuer on the basis that if he was willing to accept it a new trial could be avoided. Even where the jury's award has been held to be unjust it may not be necessary to resort to a new trial.

    But in the assessment of solatium it can be far from easy to define with anything like precision where the boundaries of a just award may lie. In the present case the second jury returned an award for solatium lower in its total than the earlier award. The figure for the past element was one half of the corresponding earlier figure. The figure for the future element was higher by one fifth of the earlier figure. Where what is in issue is the amount of an award for solatium and where the evidence is substantially the same in both trials then the fact that the first jury made the award which it did make may become of significance for the Court in assessing the later award. It does not follow necessarily from the earlier decision that the second award must be excessive. It may be that the level of award which the Court is using as guidance requires to be reconsidered. This brings me to considerations of a more general nature.

    An award of solatium which does justice between the parties is very much a jury question, as a matter of fact and circumstance where precise rules are not to be expected. Traditionally in Scottish practice the jury has been given little guidance on the assessment of the figure of damages. In the earliest days of the Jury Court Lord Adam was in the habit of pointing out to the jury that every individual would initially fix on a different sum and he would then continue to the following effect:

 "Therefore, in all cases of damages, a fair, unprejudiced discussion, (avoiding, in civil cases, the converting compensation for a civil injury into a matter of punishment), will lead to a rational, conscientious, and fair compromise of your different opinions, and bring you to fix on one sum. Your own sound sense and discretion will tell you that you must come to an accommodation; and I have no doubt you will give what will do justice between the parties." (Murray's Jury Court Cases 1815-18, pp. 24-25).

Some hundred and forty years later Lord Guthrie in his charge to the jury in Traynor's Executrix v. Bairds & Scottish Steel 1957 S.C. 311, 314 pointed out the impossibility of translating injury or pain into pounds, shillings and pence, and instructed them in considering solatium:

 "to make such an award as you think is moderate and reasonable but adequate, having in view the particular circumstances of this case, because the only rule of law which applies to an award of solatium is that it is dependent on the particular circumstances . . . "

The tradition has remained that while assistance can be provided on the quantification of the elements which may be comprised in claims for patrimonial loss only the most general guidance should be given on the matter of solatium. The only specific restraint for the jury is the ceiling figure of the global sum which the pursuer seeks for the totality of his claims.

    In a matter as imprecise as the assessment of solatium there can be as many opinions as the number of those required to assess it. So it is understandable that judges have tended to look to precedent and a considerable resource is now available from which awards can be found in comparable cases both in Scotland and, since the decision in Allan v. Scott 1972 S.C. 59, in England. The jury does not have this resource. But the jury may well through its numerical strength and its varied experience be able to provide a direct reflection of what would in the eyes of the ordinary individual be considered reasonable. On the other hand ignorance of other comparable awards may create undesirable discrepancies. A judge has less danger of erring in the latter respect since he may at least have some assistance in earlier awards in comparable cases, but he may be less immediately aware than a jury may be of current values and even unconsciously lose some flexibility through the weight of precedent. The point was developed by Lord Lowry L.C.J. in Simpson v. Harland & Wolff Plc. [1988] N.I. 432, at 440 in these words:

 "But in England what started in 1934 as the general level of jury awards has gradually but inevitably been transformed into the general level of judges' awards and the level of awards of general damages in England and Wales has tended to fall behind the level of awards of general damages here. This tendency is inevitable, since the age of judges ranges from middle-aged to elderly and, as objective people, (including, I believe, most High Court judges) will readily concede, elderly people (particularly men), if they are not in business or constantly dealing with pecuniary transactions of some kind, become less adaptable and less receptive to changing values, even though at the same time they may remain intellectually able and alert . . . A judge's award of general damages is not intrinsically better than a jury's. The chief merit of the former is not in its amount but in its greater predictability and consistency, which ought to be readily achievable by a numerically small judiciary. These qualities are based on the knowledge of other awards in like cases and on the ability, through experience, to make fine distinctions and adjustments between one case and another and they promote fairness, as between one claimant and another. But it does not follow that a judge, equipped with all the experience of the standard of the reasonable juror, should reject that experience in an effort to conform to a different standard."

    It is plainly desirable that awards of solatium in comparable cases should bear a coherent relationship with each other. Justice requires to be done not only between pursuers and defenders, but between pursuer and pursuer and defender and defender. The court is given the ultimate responsibility for determining whether a jury's award is unjust in its quantification. In a system in which damages may be assessed in different cases either by a jury or by a judge it is essential, not only for the profession, but also for the Court both in the making of awards and in the consideration of awards which have been made, for there to be available a convenient record of awards by juries as well as by judges. In recent times the stock of jury awards has not been extensive and there may be some practical difficulties in the tracing and analysing of such awards. It appears however that such work has now been set in hand more systematically than it may have been in the past. The collection and classification of such material is obviously to be encouraged.

    In the context of the present case I consider that while reliance cannot consistently be placed on the precise figure of the first award of solatium, because it was held to be excessive, nevertheless the fact that such a figure was awarded is something which requires to be noted in considering the later award. The particular consequences of the accident for the pursuer in the present case were clearly very considerable and involved a very special difficulty in the assessment of the damaging effect on a sport to which he had dedicated himself and in which he had won international success. The careful review of precedent which has been undertaken in the court below demonstrates the difficulty of the problem. I see no ground on which it can reasonably be said that the majority of the judges erred in refusing the application for a new trial and no ground for interfering with the view which they reached.