McCallum v Paterson
| Jurisdiction | Scotland |
| Judgment Date | 19 December 1968 |
| Docket Number | No. 10. |
| Date | 19 December 1968 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Stott and a jury.
ReparationDamagesPersonal injuriesMarried woman aged 46 totally disabledAppropriate award for solatium.
ProcessJury trialMotion for new trialExcessive damagesThird trial allowed.
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. This award having been set aside as excessive, a second jury awarded 22,000, of which, it was agreed, at least 20,000 represented solatium.
Held that the award for solatium was excessive; and a new trialallowed.
Observations on the obligation of the Court to grant a third trial where excessive damages have been awarded.
Dictum of Lord President Inglis in Young v. Glasgow Tramway and Omnibus Co.UNK, (1882) 10 R. 242, at p. 245,criticised by Lord Guthrie.
ProcessJury trialObjections to evidenceEvidence elicited by judge.
Observations by Lord Guthrie on the courses open to counsel at a jury trial when questions by the presiding judge elicit evidence of doubtful admissibility.
Law ReformProcessJury trial on quantum onlyWhether Court should have power to assess damages on motion for new trial.
Observed by Lord Guthrie that it might be advisable, in order to obviate repeated jury trials on the amount of damages only, to confer on the Court power to assess damages on a motion for a new trial.
ExpensesJury trialMotion for new trial grantedAppropriate time for dealing with expenses of first trial and motion.
Held that, when the Court grants a motion for a new trial, it should, in the absence of special circumstances, deal then with the expenses of the first trial and the motion.
Wason v. British Transport Commission, 1961 S. C. 152,explained.
(Sequel to case reported 1968 S. C. 280.)
Mrs Annie Gribben or M'Callum brought an action against James Paterson, in which she concluded for 35,000 as damages in respect of injuries sustained by her in a road accident. The defender ultimately admitted liability.
The following narrative of the facts relevant to the question of damages is taken from the opinion of Lord Guthrie:"The pursuer is a married woman, aged 46 at the time of the accident on 29th July 1964. As a result of the collision she suffered damage to her spinal cord causing paralysis below the middle of her chest, with loss of movement of her lower limbs, loss of sensation in and paralysis of her bladder and bowel, and loss of sexual function. She spent a year in hospital, but there was little improvement in her condition, and there is no hope of betterment. At home she is completely dependent on the assistance of her husband and daughter. Her life is spent between her bed and a wheel-chair. She is confined indoors except for occasional outings to the garden. The daily discharge of excretion is a matter of great discomfort, difficulty and embarrassment. A nightly injection is required to give her a chance of sleeping in a dry bed. She has had pressure sores on her right leg from calipers worn in an attempt to assist walking. Other pressure sores have been caused by confinement to bed or wheel-chair. The difficulty in emptying the bladder may cause kidney infection. Her expectation of life has been shortened by 10 to 15 years. She has retained the mental capacity to appreciate the gravity of her condition and the dark future ahead. Her inability to work and her resentment at her complete dependence on others have rendered her irritable and depressed."
The case was tried on 3rd and 4th October 1967 before Lord Milligan and a jury. The jury unanimously assessed damages at 23,000. The defender moved for a new trial on the ground that the award was excessive, and on 4th April 1968 the Second Division set aside the verdict and allowed a new trial. This took place before Lord Stott and a jury on 31st October and 1st November 1968. The jury unanimously assessed damages at 22,000.1
The defender again moved for a new trial on the ground that the award was excessive, and the case was heard before the First Division (without Lord Cameron) on 6th December 1968.
At advising on 19th December 1968,
LORD PRESIDENT (Clyde).This is a motion for a new trial brought by the defender. The pursuer is a lady who was rendered a paraplegic in a motor accident. Liability is admitted, and the only question is the amount of damages. Apart from a somewhat nebulous claim for a possible loss of part-time employment in the future, the whole claim is in respect of solatium. She was 46 years of age, married, with five children, and although she has fortunately suffered little physical pain, she is paralysed from the waist downwards, has to move about in a wheeled chair, and has sustained a loss of expectation of life of some five to ten years.
The pursuer raised her action in the Court of Session, concluding for payment of 35,000. She decided to go to trial by a jury, and she was awarded 23,000. A motion for a new trial was made by the defender, and after a hearing the Second Division unanimously held the award to be excessive and ordered a new trial (see 1968 S. C. 280). A new trial accordingly took place, and in that second trial the jury awarded a sum
of 22,000. It is arising out of this second verdict that the present motion for a new trial is madeIt was conceded that the award was a very high one, but it was urged upon us that we should be very reluctant to interfere with a verdict which had been made and reaffirmed by two separate and independent juries, for prima facie at least this shows that twice has a jury of ordinary men and women arrived at approximately the same figure. In my view this is quite the wrong approach. Jury trials in civil actions are importations from England incorporated into our legal system by an Act of Parliament.7 That Act never intended to leave the whole matter to a jury subject to directions in law from the judge. On the contrary, safeguards were written into the statute to secure that, so far as possible, justice was done to defenders, and that in a broad and general way awards for similar injuries should conform to a general pattern. It was for this reason that, where a pursuer opted for a jury trial, he rendered himself liable to a motion for new trial on the ground that the damages awarded were excessive. The word "excessive" is not capable of precise mathematical definition; attempts to do so in the past have failed and been abandoned. The nearest definition one can get is that an award is excessive if it is so high that no reasonable jury properly instructed could have made it. The fact that in this case the first jury awarded a sum which in a motion for a new trial was regarded as excessive, in this sense, does not conclude the matter one way or the other for us in a motion following on the second trial. We must consider the matter in the light of the evidence led at the second trial, and if in our view the award was excessive, then it is our duty in accordance with the statute to order a new trial once more. In some of the cases it was suggested by the judges that it was not expedient to order a third jury trial in any case. (See M'Quilkin v. Glasgow District Subway Co.UNKSC,8per Lord M'Laren at p. 463;Grant v. William Baird & Co., at p. 462.) But it appears to me that expediency is emphatically not the proper test. Parliament has envisaged that, if an excessive award is made, the Court on a motion for a new trial may order a fresh one, even if this means a succession of abortive trials. This is a consequence of the jury trial system, and if a pursuer wishes to avoid the risk of itand a verdict based on sympathy is quite a possibility where a jury is concernedhe can avoid the risk by asking for a proof. There are many decided cases where third trials have been ordered, just because justice to the parties requires the upsetting of the earlier verdicts.
Turning now to the facts of the present case, the injuries sustained by the pursuer are distressing in the extreme, and the conversion into money of her suffering is obviously not a matter capable of precise calculation. All this makes it a case where a wide measure of latitude must be left to a jury. But, giving full weight to all these considerations,
I have come to the conclusion that an award of this magnitude falls into the category of awards which are excessive within the meaning of those words in the statute. If we are not to interfere in this case, there will scarcely be any case in which the Court could interfere, and the statutory provision would become a dead letterI am confirmed in this conclusion by the fact that in the course of the evidence of a social worker led for the pursuer, after the cross and re-examination had been completed, the presiding judge led evidence from her to the effect that the pursuer ought really to get another house to live in and should buy one. No opportunity was given to counsel to deal with the question of the purchase of a house, which was not an item of damage claimed on record. That evidence, however, if accepted (and it well may have been) by the jury, would certainly tend towards a substantial inflation of the award.
In the whole circumstances, in my opinion, a new trial must be granted.
LORD GUTHRIE.This is a motion for a new trial by the defender in an action of reparation at the instance of the pursuer, who was gravely injured by the negligence of the defender in driving his car into the rear of another car in which the pursuer...
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