McCallum v Paterson
| Jurisdiction | Scotland |
| Judgment Date | 04 April 1968 |
| Docket Number | No. 30. |
| Date | 04 April 1968 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Milligan and a jury.
ReparationDamagesPersonal injuriesMarried woman aged 46 totally disabledAppropriate award for solatium.
As a result of injuries sustained in a road accident a married woman aged 46 was permanently paralysed from the lower chest downwards and confined to bed or a wheel-chair. Her expectation of life was shortened by 10 to 15 years, and she became irritable and depressed. In an action of damages, in which the defender admitted liability, a jury awarded her 23,000. At the hearing of a motion by the defender for a new trial on the ground that the damages were excessive the parties were agreed that at least 20,000 of the award must be for solatium.
Held that the award for solatium was excessive; and a new trialallowed.
Mrs Annie Gribben Or M'Callum brought an action of damages against James Paterson, in which she claimed 35,000 as damages in respect of injuries sustained by her in a road accident on 29th July 1964. The defender ultimately admitted liability.
The case was tried before Lord Milligan and a jury on 3rd and 4th October 1967. No evidence was led by the defender. The following summary of the facts relevant to the question of damages is taken from the opinion of the Lord Justice-Clerk:"As a result of her accident in July 1964 the pursuer sustained extremely grave injuries and she is now permanently incapacitated. She is a permanent paraplegic, paralysed from the lower chest downwards, and for all practical purposes she is confined to bed or to a wheel-chair. Her sexual function is wholly gone, she has lost control of both bladder and bowel and, to enable these to operate at all, she requires the assistance of her husband or married daughter. She is saddened, embittered and unstable and has largely lost the enjoyment of life. No improvement is foreseen and there is an estimated loss of expectation of life of 10 to 15 years. At the time of the accident the pursuer was 46, married, with five children at home, and was thinking of taking a part-time job. There is thus a claim for loss of future earnings. It is to be noted, however, that there is no claim in respect of the cost of domestic help, nursing or any other such attention. In respect of those matters the husband has raised an action on his own behalf."
The jury having unanimously assessed damages at 23,000, the defender moved for a new trial on the ground that the damages were excessive.
The case was heard before the Second Division (consisting of the Lord Justice-Clerk, Lord Walker and Lord Cameron) on 15th March 1968.
LORD JUSTICE-CLERK (Grant).[His Lordship gave the narrative quoted supra, and continued]Liability was admitted, and the jury awarded 23,000 damages. It is clear from the evidence (and it was agreed, I think, by counsel) that, even on the most generous basis, the upper limit of the loss of future earnings claim is 3000. Accordingly, at the very least, 20,000 of the award is pure solatium. This, says the defender, is excessive and justifies a new trial. We were referred to a number of cases, English as well as Scots, in which damages had been awarded to paraplegics and persons suffering from analogous disabilities. Like the First Division in Von Mehren's Curator Bonis v. Wood,2 I "do not think that in cases such as the present the citation of awards made in other cases by different juries is of any real assistance in determining whether the amount fixed in the present case is reasonable or not, for the circumstances in each case necessarily are so different." That is particularly so when the awards in question cover two or more heads of damage and there is no reasonably accurate method of breaking down the lump sum into its component parts. This is a normal difficulty in jury cases, but it also arises if one tries to use for comparative purposes the lump sum award made by Lord Kilbrandon inWilliams v. A. & W. Hemphill Ltd.UNKSC,3 to which we were referred.
I think, however, that, provided that one makes the comparison on a fairly broad basis and keeps in mind differences in regard to age, loss of expectation of life, the nature and extent of disability and so on, it is possible, having isolated the solatium element with reasonable accuracy here, to obtain some assistance from recent awards by judges in respect of pure solatium in paraplegic or analogous cases. In none of these does the award appear to have been over 8000. InWright v. British Transport Commission and Others4 and Smith v. Colvilles Ltd.5 (both paraplegic cases) the awards were respectively 5000 and 7000. In Patton's Curator Bonis v. Western S.M.T. Co. Ltd.6 and Smith's Curator Bonis v. Scottish Gas Board7 (where the disability was complete but was mental, not physical) the awards were respectively 7500 and 8000.
These awards can be no more than a rough guide in the present case. Even allowing for the differences in the various facts and circumstances, however, it is clear that the award here is completely out of line with recent judicial awards in comparable cases. No precise rule can be laid down as a yardstick for solatium awards, which must of necessity be
of a somewhat arbitrary character. Money cannot compensate...To continue reading
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