Girvan v. Inverness Farmers Dairy and Another [1997] UKHL 47

House of Lords

Between

GirvanAppellant

Inverness Farmers Dairy and AnotherRespondent

Before

Lord Browne-Wilkinson

Lord Mackay of Clashfern

Lord Slynn of Hadley

Lord Hope of Craighead

Lord Clyde

Date 13 November 1997

My Lords,

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

LORD MACKAY OF CLASHFERN

My Lords,

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

LORD SLYNN OF HADLEY

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.

LORD HOPE OF CRAIGHEAD

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:

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:

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:

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:

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.

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 SC 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.

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:

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] AC 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:

But, as Lord Woolf M.R. observed in Thompson v. Commissioner of Police of the Metropolis

[1997] 2 All ER 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:

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.

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 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:

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:

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:

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:

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.