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Session 1997-98
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Judgments - Girvan v. Inverness Farmers Dairy and Another


  Lord Browne-Wilkinson   Lord Mackay of Clashfern   Lord Slynn of Hadley
  Lord Hope of Craighead   Lord Clyde






My Lords,

    For the reasons given in the speech of my noble and learned friend, Lord Hope of Craighead I would dismiss this appeal.


My Lords,

    For the reasons given in the speech of my noble and learned friend, Lord Hope of Craighead I would dismiss this appeal.


My Lords,

    I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives, I too would dismiss the appeal.


My Lords,

    Ever since jury trials in civil actions were imported into the law of Scotland from England by the Jury Trials (Scotland) Act 1815 it has been competent for a defender to apply to the Inner House for a new trial on the ground of excess in the jury's award of damages. A provision to that effect was included in section 6 of the Act of 1815. The current provision is to be found in section 29 of the Court of Session Act 1988. It was not until 1972 that it became competent to appeal to the House of Lords against an interlocutor of the Court of Session on a motion for a new trial, following the concern which had been expressed in the light of the decisions in McCallum v. Paterson, 1968 S.C. 280 and McCallum v. Paterson (No.2) 1969 S.C.85. This was provided for by section 2 of the Administration of Justice (Scotland) Act 1972, the substance of which has now been re-enacted in section 40(2) of the Act of 1988. But this is the first occasion since the coming into operation of that enactment that such an appeal has been taken. Some explanation is needed of the circumstances which have brought this about, before I come to deal with the particular issues which are before us in this appeal.

The Facts

    The pursuer in this case, who carries on business in Glenmoriston as a sheep farmer, seeks damages from the defenders in respect of injuries which he sustained in a road accident on 21 March 1989. The vehicle which he was driving was in collision with a vehicle which was being driven by the second defender, who was an employee of the first defenders. The pursuer raised his action against them in 1991. The defenders admitted liability to make reparation to the pursuer and the action, which is thus now concerned only with the quantum of damages, was sent for trial by jury under section 11 of the Act of 1988. On 8 December 1993 the jury assessed the damages to which the pursuer was entitled at £193,080. This was the total of sums which had been awarded by them under various headings of the pursuer's claim. It included the sum of £120,000 for solatium. In accordance with the practice which was approved in MacDonald v. Glasgow Corporation, 1973 S.C. 52, for the purpose of enabling interest to be awarded on damages for the past under section 1(1A) of the Interest on Damages (Scotland) Act 1958 as amended by the Interest on Damages (Scotland) Act 1971, their total award for solatium was divided into £70,000 for the past and £50,000 for the future. The defenders then enrolled a motion for a new trial under section 29 of the 1988 Act on the grounds of a misdirection by the trial judge and excess of damages. At the hearing of the motion counsel for the defenders confined his argument to the ground that the damages were excessive in respect of three heads of the claim. These were solatium, future loss of partnership profits and services which the pursuer would be unable to render in the future to relatives. On 29 September 1994 the Second Division held (1995 S.L.T. 735) that the jury's award of damages for solatium was excessive. The verdict of the jury was set aside and the court granted the defenders' motion for a new trial. They found it unnecessary to deal with the arguments which had been submitted to them in relation to the other two heads.

    The case went before a second jury for a new trial on 9-11 May 1995. On this occasion the jury awarded to the pursuer a total sum of £165,530 as damages. Included in that figure was the sum of £35,000 as solatium for the past and £60,000 as solatium for the future. The sums assessed under the various other heads in the pursuer's claim differed in some respects from those which had been awarded previously, but no criticism has been made of the jury's award by either party on that account. It is the sum awarded for solatium which continues to give rise to controversy.

    On this occasion the total award for solatium was £95,000, which is £25,000 less overall than that which had been awarded by the first jury. The sum which was awarded for the past was one half of the sum which the first jury awarded (£35,000 as against £70,000), while the award for the future was £10,000 more (£60,000 as against £50,000). On 18 May 1995 the defenders enrolled a fresh motion for a new trial on the grounds that the verdict of the second jury was contrary to the evidence and that the damages were excessive. Their motion for a new trial was heard on 19-20 December 1995 by an Extra Division (Lords McCluskey, Kirkwood and Abernethy). The argument which was presented to the court on this occasion was confined to the question whether the total award for solatium was excessive within the meaning of section 29(1) of the Act of 1988. On 7 February 1996 the Extra Division, Lord Abernethy dissenting, (1996 S.L.T. 631) refused the motion for a new trial. It is that decision which is now before your Lordships in this appeal.

    It is very unusual in Scotland for a jury's award of damages to be challenged twice in the same action. If this motion for a new trial were to be allowed it would mean that the case would require to go before a jury for a third time on the issue as to the quantum of damages. It is also unusual for one of the judges in the Inner House to dissent from the decision of the majority on the question whether or not there should be a new trial. These features of the present case reveal a feeling of unease among practitioners in Scotland, which is reflected in Lord Abernethy's thoughtful and penetrating opinion, about the relationship between awards of solatium made by juries and those made by judges, especially as by far the greater number of awards of damages in contested cases are now made by the judges. Unease has also been expressed about the test which should be applied in order to determine whether a jury's award is excessive within the meaning of the Act. In order to set these concerns into their present context I must now outline briefly the statutory background.

The Statutory Background

    When the Jury Trial (Scotland) Act 1815 was enacted a separate jury court was established in Scotland for the trial of such issues as might be referred to it by the Court of Session. In that Act, as Maclaren, Court of Session Practice (1916), p. 543 points out, there were no causes enumerated as specially appropriate for jury trial, but this defect was soon remedied by the Court of Session Act 1825. Among the causes which were enumerated by that Act were actions of damages for personal injuries. This category of causes appropriate for jury trial has been preserved by section 11(a) of the Act of 1988. In 1830 the jury court was abolished and its jurisdiction was transferred to the Court of Session. It was to a Division of that court that it had always been competent to apply under section 6 for a new trial on the ground of excess of damages. But the only remedy which the Inner House could provide under that section, if it held that there had been an excess of damages, was to order a new trial. That provision has been preserved by section 29 of the Act of 1988. Section 6 of the Act of 1815 also provided that an interlocutor granting or refusing a new trial was not to be subject to review by an appeal to the House of Lords. As I have already mentioned, it was not until the coming into operation of section 2 of the Administration of Justice (Scotland) Act 1972 that an appeal to the House of Lords against such an interlocutor became competent.

    Subsection (2) of section 29 provides: "The Inner House on hearing an application under this section may, subject to section 30 of this Act and any act of sederunt, grant or refuse a new trial." 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 case, it may grant a new trial restricted to the question of the award of damages only. What the Inner House cannot do--in sharp contrast to what is now competent in England under section 8 of the Courts and Legal Services Act 1990--is substitute for the sum awarded by the jury such sum by way of damages as it considers appropriate. The assessment of the damages to be awarded in a case which has been sent for jury trial remains therefore, in Scotland, a matter for the jury and not for the judges. The sole function of the judges is to review the jury's award under the limited jurisdiction which has been given to the Inner House by section 29 of the Act of 1988.

Landell v. Landell

    In Landell v. Landell (1841) 3 D 819 the whole Court had occasion to consider the meaning, in the context of the statute, of the expression "excess of damages." The pursuer had obtained awards of damages from a jury in her action for wrongous imprisonment which, although well within the sum sued for, were clearly more than she ought to have received. The defenders applied for a new trial on the ground that the damages were excessive. The four judges of the Second Division were equally divided on the question whether there were grounds for a new trial.

    Lord Justice-Clerk Boyle, with whose opinion Lord Meadowbank concurred, referred first, for guidance as to the grounds on which such cases should be dealt with, to a number of English cases mentioned in A Practical Treatise and Observations on Trial by Jury in Civil Causes as now incorporated with the jurisdiction of the Court of Session (1836) by the Right Hon. William Adam, who was the Lord Chief Commissioner for the jury court in Scotland. In his introduction to this subject (at pp. 177-178) Lord Adam had pointed out that, as the plan for introducing civil jury trials to Scotland had been copied strictly from that which had long prevailed in England, the rules and principles according to which new trials were dealt with in that country ought to guide the Court of Session in this part of its jurisdiction. In one case, Leeman v. Allan (Adam on Jury Trial, pp. 197-198), Lord Camden said that the court must be able to say that the damages were "beyond measure unreasonable," although they could not say exactly what damages ought to be given. In another, Leith v. Pope (Adam on Jury Trial, p. 201), Lord Chief Justice de Grey said that the court would not interpose on account of the largeness of damages unless they were "flagrantly excessive" and "most outrageously disproportioned either to the wrong received, or the situation and circumstances of either the plaintiff or defendant." Turning then to a Scottish case, Christian v. Lord Kennedy (Adam on Jury Trial, p. 266), the Lord Justice-Clerk quoted this passage from the opinion of Lord Robertson:

     "Granting a new trial is in the discretion of the court, but it is not to be rashly or hastily exercised. Were we to grant new trials, on the ground that the sum is larger than we would have given, this would in fact be taking out of the hands of the jury the assessment of damages. It is only in cases where the damages are out of all bounds excessive that the court will interfere."

He observed that Lord Adam, in his Treatise on Jury Trial, had added (at p. 267), after referring to Lord Robertson's opinion, that the principles there laid down had been adhered to and acted upon in the Jury Court and the Court of Session in all succeeding cases. He concluded his discussion of the authorities with these words:

     "This course of proceeding in Scotland would lead us to the principle, that unless the damages appear to be so unreasonable, that, as was said in one case, all hands are lifted up in astonishment, the Court will not set aside the verdict."

Lords Moncreiff and Medwyn were of the view however that the damages were excessive in the sense of the statute. So, the judges of the Second Division being equally divided on this issue, the other judges were consulted.

    Of the remaining nine judges in the Court of Session, six were in favour of the view that the damages were not so excessive as to call upon the court to order a new trial. The other three were of the contrary view, but it is to the reasons given by Lords Fullerton, Mackenzie, Jeffrey and Murray who, with Lord President Hope and Lord Gillies, constituted the majority that one must look to find the grounds for the decision. What they said was this:

     "The ground of demanding a new trial in this case, is the alleged excess of damages. The form of proceeding, and the expression itself, is confessedly borrowed from the practice of England, and we are consequently entitled to look at that practice, in ascertaining the true sense in which the expression is employed. Now, from the various cases referred to, it is evidently not enough, in order to bring the damages within the description of excessive, that they are more, and even a great deal more, than the amount at which the injury sustained might have been estimated, in the opinion of the individual members of the court to which the application is made. Indeed, if that were enough, the Court would be called upon to review the verdict of the jury, in a matter peculiarly within their province, and that upon a comparatively imperfect view of the evidence. It is clear that, in order to warrant the application of the term 'excessive', the damages must be held to exceed, not what the Court might think enough, but even that latitude, which, in a question of amount so very vague, any set of reasonable men could be permitted to indulge. The excess must be such as to raise on the part of the Court, the moral conviction that the jury, whether from wrong intention, or incapacity, or some mistake, have committed gross injustice, and have given higher damages than any jury of ordinary men fairly and without gross mistake exercising their functions, could have awarded. It must be admitted that, even in this sense, there can be no definition of the term excessive, and indeed no form of expression can well be devised that does not leave this very point somewhat vague, and does not raise a kind of secondary jury question to be determined by the Court."

    It appears that this decision settled the matter, so far as the Court of Session was concerned, until well into the present century. Only one other decision in the nineteenth century need be mentioned. This is Young v. Glasgow Tramway and Omnibus Company (Limited) (1882) 10 R. 242, in which a motion for a new trial on the ground of excess of damages was refused. Lord President Inglis, at p. 245, said:

     "The question is, whether a new trial is to be granted, and, in order to justify its being granted, I think we must be satisfied that the sum is altogether so extravagant that no other jury would repeat it. It seems to me that, unless it can be said that the verdict ought not to have been for more than one-half of the sum awarded, there is not, according to our practice, any room for interference. This is not a case which answers to that description."

    That observation seems to be the origin for what was later referred to as the working rule of 100 per cent permissible error: see McGinley v. Pacitti, 1950 S.C. 364, 368, per Lord President Cooper. I shall return to this rule at a later stage in this review of the authorities. Before I leave this case however it is worth noting that counsel for the pursuer was able to observe in the course of the argument that a new trial had never yet been granted on the ground of excessive damages, although it was thought that in several cases the court had indicated that unless the pursuer would moderate his claim a new trial would be given.

    Several points can be taken from the discussion in Landell v. Landell by way of background to the more recent cases. First, the Court was careful to respect the division of function between the jury on the one hand and the judges on the other with regard to the assessment of damages. The statutory framework, by which it was for the jury to assess damages in the first instance and, if there was an excess of damages, the only remedy was to return the case to another jury for a fresh assessment, made this approach inevitable. Second, all judges recognised that the expression "excess of damages" was not capable of any precise definition. As the majority of the consulted judges said, the expression is somewhat vague. No mathematical formula was suggested as an alternative. Third, the various phrases used both by the English judges, to whose dicta the court looked for guidance, and by the Scottish judges, in the light of their more recent experience, indicate that in their view judges should be very slow to interfere with an award made by a jury. In order to be consistent with the overall philosophy, a very large margin indeed was to be allowed between what the jury had awarded and what the judges thought appropriate before the court would feel it right to interfere and take the risk of sending the case back for consideration by a fresh jury.