Kirsty May Hamilton+gilbert Dennis Thomson V. Ferguson Transport (spean Bridge) Limited+dennis Thomson Builders Limited
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Brodie,Lord President,Lord Eassie,Lord Emslie |
| Neutral Citation | [2012] CSIH 52 |
| Court | Court of Session |
| Docket Number | PD2039/09 |
| Published date | 12 June 2012 |
| Date | 08 June 2012 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Eassie Lord Clarke Lord Emslie Lord Brodie | [2012] CSIH 52 PD2039/09 and PD1444/09 OPINION OF THE LORD PRESIDENT in motions for new trials in causis (1) KIRSTY MAY HAMILTON Pursuer and Respondent; against FERGUSON TRANSPORT (SPEAN BRIDGE) LTD Applicant and Defender: and (2) GILBERT DENNIS THOMSON Pursuer and Respondent; against DENNIS THOMSON BUILDERS LTD Applicant and Defender: _______ |
Alt: Reid, Q.C., Lloyd; Morton Fraser LLP (Pursuer and Respondent)
For the Scottish Ministers: Balfour; Scottish Government Legal Directorate
(2) Act: Jones, Q.C., Pugh; HBM Sayers (Defender and Applicant)
Alt: Milligan, Q.C., Thornley; Balfour + Manson LLP (Pursuer and Respondent)
For the Scottish Ministers: Balfour; Scottish Government Legal Directorate
8 June 2012
Introduction
[1] In each of these two processes the defenders have enrolled a motion for a new trial. Both motions raise similar considerations and were heard together. Because potentially these considerations gave rise to important matters of principle and practice in relation to the conduct of civil jury trials, an enlarged bench was convened to hear the motions.
The statutory provisions
[2] The Court of Session Act 1988 provides:
"9 The Lord Ordinary may allow a proof -
(a) in any action, other than an action enumerated in section 11 of this Act, without the consent of both parties and without reporting to and obtaining the leave of the Inner House;
(b) in any action enumerated as aforesaid, if the parties to the action consent thereto or if special cause is shown.
...
11 Subject to section 9(b) of this Act, the following actions if remitted to probation shall be tried by jury -
(a) an action of damages for personal injuries;
(b) an action for libel or defamation;
(c) an action founded on delinquency or quasi-delinquency, where the conclusion is for damages only and expenses; and
(d) an action of reduction on the ground of incapacity, essential error, or force and fear;
and such an action which has been ordered by the Lord Ordinary to be tried by jury is hereafter in this Act referred to as a jury action.
...
29(1) Any party who is dissatisfied with the verdict of the jury in any jury action may, subject to such conditions and in such manner as may be prescribed, apply to the Inner House for a new trial on the ground -
(a) of misdirection by the judge;
(b) of the undue admission or rejection of evidence;
(c) that the verdict is contrary to the evidence;
(d) of excess or inadequacy of damages; or
(e) of res noviter veniens ad notitiam;
or on such other ground as is essential to the justice of the cause.
...".
[3] Section 1 of the Damages (Scotland) Act 1976 (as amended) provided:
"(1) Where a person dies in consequence of personal injuries sustained by him as a result of an act or omission of another person, being an act or omission giving rise to liability to pay damages to the injured person or his executor, then, subject to the following provisions of this Act, the person liable to pay those damages (in this section referred to as 'the responsible person') shall also be liable to pay damages in accordance with this section to any relative of the deceased, being a relative within the meaning of Schedule 1 to this Act.
...
(4) ... if the relative is a member of the deceased's immediate family (within the meaning of section 10(2) of this Act) there shall be awarded, without prejudice to any claim under subsection (3) above, such sum of damages, if any, as the court thinks just by way of compensation for all or any of the following -
(a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death;
(b) grief and sorrow of the relative caused by the deceased's death;
(c) the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if the deceased had not died,
and the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above."
Immediate relatives included parents and children of the deceased. The 1976 Act has now been repealed by the Damages (Scotland) Act 2011, section 4(3)(b) of the 2011 Act being in substantially the same terms as section 1(4) of the 1976 Act, but such repeal does not affect the present proceedings. An award made under section 1(4) is conventionally referred to as a "loss of society" award. It replaced, but is different from, damages at common law in respect of solatium for the death of a close relative.
The present awards
[4] On 18 December 2007 Mrs Caroline May Hamilton, then aged 50, was driving northwards on the A82 towards Fort William when an articulated lorry, being driven southwards by an employee of Ferguson Transport (Spean Bridge) Ltd ("Ferguson Ltd"), toppled over and crushed Mrs Hamilton's car killing her outright. She was survived by her husband, James Ian Hamilton, then aged 67 and by her only child, Kirsty Hamilton, then aged 17. In due course proceedings were raised against Ferguson Ltd in the Court of Session by Mr and Miss Hamilton for reparation arising out of the death of Mrs Hamilton. Ferguson Ltd admitted liability. The action was remitted for trial by jury. An issue was proposed by the pursuers, which was not objected to by the defenders. Attached to the issue was a schedule of damages for each of the pursuers in which there were separate heads for damages under section 1(4) of the 1976 Act (as amended), for loss of financial support and for loss of services rendered by the deceased. Each of these heads was broken down into claims for the past and for the future. Mr Hamilton's claim additionally sought recovery of funeral expenses. At the head of the schedule for Mr Hamilton appeared the words "DAMAGES CLAIMED BY FIRST PURSUER - £250,000" (the total sum ultimately concluded for by him). At the head of the schedule for Miss Hamilton appeared the words "DAMAGES CLAIMED BY SECOND PURSUER - £175,000" (the total sum ultimately concluded for by her). Prior to the jury trial all the heads of damages other than those under section 1(4) had been agreed. In the event the jury, following trial on 16 February 2011, returned a verdict in favour of Mr Hamilton of a total of £179,835, of which £50,000 was in respect of the section 1(4) award for the past and £30,000 in respect of section 1(4) for the future. No motion was enrolled by Ferguson Ltd with respect to the award made to Mr Hamilton - we were informed that dealings in relation to a tender affected that. As respects Miss Hamilton the jury returned a verdict in her favour of a total of £142,060, of which £22,060 in aggregate was in respect of agreed financial heads and £120,000 (£50,000 to the past and £70,000 to the future) was in respect of the claim under section 1(4). Ferguson Ltd enrolled a motion for a new trial in respect of the award to Miss Hamilton on the basis of "excess ... of damages" (Court of Session Act 1988, section 29(1)(d)), though as will become plain reliance was also placed on "such other ground as is essential to the justice of the cause" (section 29(1), concluding clause).
[5] On 10 March 2007 James William Thomson, then aged 26, was working in the course of his employment with Dennis Thomson Builders Ltd ("Thomson Ltd") on a building site on Shetland. As he was doing so a canister of expanding foam, provided to him for the purposes of his work, exploded killing him instantly. He was survived by his wife and three children, by both his parents, his brother, his sister, his half-sister and his half-brother. An action was raised against Thomson Ltd in the Court of Session by these relatives for reparation arising from the death of the deceased. All these claims, bar that made by the deceased's father, were ultimately settled. At the time of his son's death the deceased's father ("Mr Thomson") was 57 years of age. Mr Thomson's claim was sent to jury trial. Thomson Ltd admitted liability. Mr Thomson's sole claim was under section 1(4) of the Damages (Scotland) Act 1976 (as amended), divided in the issue, to which Thomson Ltd did not object, into awards for the past and for the future. At the head of the schedule of damages appeared the words "DAMAGES CLAIMED BY THE THIRD PURSUER [Mr Thomson] - £100,000" (the total sum ultimately concluded for by Mr Thomson). In the event the jury, following trial on 2 February 2011, returned a verdict in favour of Mr Thomson for £90,000, of which £50,000 was to the past and £40,000 to the future. Thomson Ltd enrolled a motion for a new trial in respect of that award on the basis of "excess ... of damages", reliance also being placed on "such other ground as is essential to the justice of the cause".
Submissions for Ferguson Ltd
[6] Mr Murphy first addressed the issue of excess of damages. The starting point in that exercise was to identify a benchmark figure. Reference was made to the two-stage approach set out in Girvan v Inverness Farmers Dairy 1998 SC (HL) 1, per Lord Hope of Craighead at pages 16-17; Heasman v JM Taylor & Partners 2002 SC 326, per Lord Hamilton at paragraph [21]). That involved an initial judicial assessment of the appropriate sum, by reference to awards in similar cases by both judges and juries, followed by a comparison with the award made in the case in question. There was no consistent pattern of jury awards with which one could make a comparison in Miss Hamilton's case. Two recent judicial awards suggested that the appropriate range for bereaved children was £15,000 - £25,000 (Bellingham v Todd [2011] CSOH 74; Wolff v John Moulds (Kilmarnock) Ltd 2012 SLT 231; cf Scottish Law Commission Discussion Paper on Damages for Wrongful Death (No. 135 of 2007), Appendix C). In fact, the upper limit of £25,000 was awarded to...
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