Matthew Heasman V. J.m. Taylor & Partners

JurisdictionScotland
JudgeLord Johnston,Lord Coulsfield,Lord Hamilton
Date08 March 2002
Docket NumberA2703/00
CourtCourt of Session
Published date15 March 2002

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Coulsfield

Lord Johnston

Lord Hamilton

A2703/00

OPINION OF LORD COULSFIELD

in the cause

MATTHEW HEASMAN

Pursuer;

against

J.M. TAYLOR & PARTNERS

Defenders:

_______

Act: McEachran, Q.C., Clark; McKay & Norwell, W.S. (Pursuer)

Alt: Jones, Q.C., L.J. Milligan; Simpson & Marwick, W.S. (Defenders): R.W.J. Anderson, Q.C.; R. Henderson (Lord Advocate on behalf of Scottish Ministers)

8 March 2002

[1]This is an action of damages for personal injury. The pursuer was involved in a serious road accident on 10 March 1998 while riding his motorcycle. He sustained extensive injuries and in the present action, which was commenced in the autumn of 2000, he sues for £500,000 as damages. Liability is admitted. It is not disputed that the pursuer's injuries were very serious, although the defenders do make averments about a fracture to the pursuer's kneecap sustained in a fall on 8 January 2000 and aver that in the future the pursuer will be able to return to work. It is clear, however, that the pursuer has a substantial claim for solatium.

[2]The defenders have stated a plea to the relevancy of the pursuer's averments in regard to the quantum of the claim but that plea did not play any part in the argument before us. The case came before the Inner House because of the defender's second plea which is in the following terms:

"The cause being unsuitable for jury trial in respect that it would not allow the defenders a fair hearing in terms of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms et separatim lack of specification in the pursuer's averments, issues should not be allowed."

[3]On 26 October 2001 the case came before temporary judge T.G. Coutts, Q.C. The temporary judge had previously heard arguments on the same point in other cases which had been settled before the point could be fully dealt with, and he agreed to report this case to the Inner House so that the question raised by the defenders' second plea in law could be authoritatively decided. However, in so far as the plea raises a question of specification that did not form part of the argument before us.

[4]Section 11 of the Court of Session Act 1988 provides that, subject to section 9(b) certain actions ("the enumerated causes") shall be tried by jury. An action of damages for personal injury is one of the enumerated causes. Section 9(b) provides that such an action may go to proof if parties agree or if special cause is shown. It has been well established for many years that "special cause" means a cause special to the particular case. It was plain from the outset that there is nothing about the circumstances of this particular case which can be regarded as special or unusual as compared with other actions of damages for personal injury. The defenders accepted that, if their plea was successful in this case, the consequence would be that virtually every such case would be deemed to be unsuitable for jury trial. The defenders submitted, however, that the effect of Article 6 of the Convention was that jury trial would not constitute a fair hearing before an independent and impartial tribunal. They further contended that if the court were to hold that it was obliged by public general legislation to send the case to jury trial, a declaration should be made that the legislation was incompatible with the Convention.

[5]Counsel for the defenders submitted that the unfairness of procedure by jury trial could be derived from six factors taken together. Firstly, at a jury trial, both parties were prevented from laying before the court comparable cases and arguing that any award of solatium should be in line with the awards made in such cases: at a proof before a judge, on the other hand, comparable cases could be considered and the decision could be reviewed on appeal as against that material. It could not be guaranteed that the result in a jury trial would be fair. Secondly, the jury had no experience of determining solatium, a factor which could be adverse to the pursuer as much as to the defender, for example if the jury were unsympathetic to claims based on psychological damage. The jury received no meaningful guidance to assist them. Thirdly, it was possible that an award could be grossly unfair without there being any prospect of a successful appeal. That followed from the restrictions placed upon the grounds of challenge to a jury's award as explained, most recently, in Girvan v. Inverness Farmers Dairy 1998 S.C. (H.L.) 1 (for convenience, this decision is referred to as Girvan No. 2, since there was an earlier decision of the Inner House in the same case, reported at 1994 S.C. 701). Fourthly, the unfairness inherent in a jury trial could not be remedied by any appeal procedure. This again followed from the decision in Girvan No. 2 and other similar cases. Fifthly, the defenders could approach a proof before a judge with the legitimate expectation that an award would fall within the well-understood parameters for awards in similar cases, so that it was open to the defenders to protect their position by making a tender. Legitimate expectation was an aspect of fairness in judicial proceedings. Sixthly, the jury did not give any reasons for its decision and that was contrary to the requirements implied by Article 6. In addition to Girvan supra, reference was made to McGinlay v. Pacitti 1950 S.C. 364; Currie v. Kilmarnock & Loudon District Council 1996 S.C. 55 and McGregor v. Webster's Executors 1976 S.L.T. 29. It was submitted that the position in Scotland could be contrasted with the position in England where it was recognised that the amount of an award of general damages for pain and suffering was the result of the application of a conventional system of assessment designed to secure fairness between pursuer and pursuer and defender and defender. Reference was made in this connection to Sims v. William Howard & Son Limited [1964] 2 Q.B. 409 and Ward v. James [1966] 1 Q.B. 273. The test for interfering with a jury award was different from the test for interfering with a judge's award, which was another source of unfairness. With regard to the requirement that reasons be given, reference was made to Hadjianastassiou v. Greece (1992) 16 E.H.R.R. 1293, Van de Hurk v. The Netherlands (1994) 18 E.H.R.R. 481 and Hiro Balani v. Spain (1994) 19 E.H.R.R. 566. Reference was also made to Helle v. Finland (1997) 26 E.H.R.R. 159 and Ruiz Torija v. Spain (1994) 19 E.H.R.R. 553. Counsel also referred to the discussion of the problems of jury trial appearing in Lord Justice Auld's review of criminal Jury Trials in England. On the specific question of the giving of reasons in jury trials, reference was made to Saric v. Denmark (Application 31913196; 2/2/99) and to R. v. Belgium (Application 15957190; D.R. 72 p. 195). There was also reference, with regard to the question of the test to be applied in the application of Article 6 at a pre-trial hearing, to Open Door Counselling and Dublin Well Woman v. Ireland (1992) 15 E.H.R.R. 244 and Johnston v. Ireland (1986) 9 E.H.R.R. 203.

[6]Counsel further submitted that section 11 of the Court of Session Act 1988 did not compel the court to remit this cause to jury trial. Section 9 permitted the Lord Ordinary to allow a proof if special cause was shown. There was authority to the effect that "special" must be interpreted as special to the particular case, as was held in Walker v. Pitlochry Motor Company 1930 S.C. 565 and Taylor v. Dumbarton Tramways Company 1918 S.C. (H.L.) 1996. However, in the light of the Human Rights Act, the 1988 Act had to be read, as far as possible, in conformity with the requirements of the Convention. The word "special" could be read simply as meaning "substantial" and it could be said that, even though the unsuitability of jury trial might appear in any case in which solatium was claimed, nevertheless it was a substantial cause justifying a refusal of jury trial. As a last resort, the defenders would argue that a declaration should be made that the provisions of the 1988 Act were incompatible with the Convention.

[7]Senior counsel for the defenders refined the argument in certain respects by emphasising that the defenders' complaint was not that juries awarded too much, even if a view to that effect might be part of the defenders' motivation for challenging jury procedure. The complaint was that the existing law and practice in the Court of Session in regard to jury trials does not amount to a controllable and fair judicial procedure and therefore is incompatible with Article 6.1. Article 6, he accepted, is to do with procedural fairness rather than substantive law, but the factors relied on by the defenders were factors affecting procedural fairness and comparison was made with procedure at proof as providing a paradigm of fair procedure against which to judge a jury trial. The functions of a judge at a proof and the jury at a trial were identical both in regard to factual issues and to solatium. The basic rule was that a person was entitled to solatium for pain and suffering and he would not quarrel with the formulation of the rule regulating the assessment of solatium stated in McCallum v. Paterson (No. 2) 1969 S.C. 85. It must be remembered, however, that Parliament had not introduced jury trial in order to provide, in some way, an element of public opinion to be taken into account in regard to damages. The reasons could be seen in Walker v. Pitlochry Motor Co. 1930 S.C. 565 and Graham v. Paterson 1938 S.C. 119; relative finality was the fundamental one. Even in 1954, as Walker on Damages showed, solatium was a conventional figure and the Scottish understanding of solatium was in line with what had been said in Ward v. James supra. It was odd that, if jury trial was to be regarded as a constitutional right, it might be a matter of chance whether a case went to a proof or jury trial. The jury...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT