Scott v Musial

JurisdictionEngland & Wales
Judgment Date06 July 1959
Judgment citation (vLex)[1959] EWCA Civ J0706-1
CourtCourt of Appeal
Date06 July 1959

[1959] EWCA Civ J0706-1


Lord Justice Morries

Lord Justice Geerod and

Lord Justice Willmer

In The Supreme Court of Judicature

Court of Appeal

MR. N. J. SHELHORN, Q.C. and MR. VICTOR WATTS (instructed by Mr. Harold N. Storer) appeared as Counsel on behalf of the Appellant (Defendant).

MR. R. MARTIN JUKE, Q.C. and MR. PARAY SHESN (instructed by Messrs. White & Co.) appeared as Counsel on behalf of the Respondent (Plaintiff).


LORD JUSTICE MORRIS: The Principal contention raised in this appeal is that a award of damages made by a Jury was excessive.


On, the 4th May, 1957, the Plaintiff in the action, while riding motor -cycle, was gravely injured as the result of a collision with a motor van. He alleged negligence against the Defendant. The Defendant denied negligence, and alleged that the Plaintiff was himself negligent to an extent that, either wholly or partly, caused his injuries.


The decision was made that the trail of the action should be with Jury. It therefore became the province of the Jury first to decide a to liability, and, if they found liability established, to decide what damages should be awarded.


When someone has suffered the torment of having his body so crushed or battered that the whole course of his life will be changed, it is a task of supreme difficulty to endeavour to assess the monetary sum which will fairly compensate him. A Judge or Jury can but easy to preserve a sense of proportion, of moderation, and of fairness. It will be reasonable to bear in mind what relation the injuries under consideration bear to other injuries to which the misfortunes of life may make man subject. It will be essential to make calm reason gain the mastery over the urges which pity may inspire. It will be necessary to harness those qualities of balance common sense which from a sure guide to decision. It will be proper to have regard to what a particular sum of money may produce or may secure.


In these days the responsibility of assessing the amounts of damages rests, in the great majority of cases, with Judges sitting along. Some eminent Judges have, in recent times, voiced the opinion that determination by Juries would often be helpful. Thus Lord Justice Singleton in this court in the case of Bocock V. Enfield Rolling Mils Limited (reported in 1954, 1 Weekly Law Reports at page 1303) said: "It has been said more than once that a judge sitting by himself is not in good position to assess as are twelve member of a jury. They have an opportunity of discussing the matter among themselves, and though they may not have great experience in the matter, twelve heads should be better than one". In a case in the following year, the case of Dolbey v. Goodwin (reported in 1955, 2 All England Reports, page 166) Lord Goddard, Lord Chief Justice, said: "The court is always reluctant to interfere in these cases, because we know the difficulty that all judges have in coming to a decision. I think it I one of he most difficult tasks that any judge can have. I have often felt that in really serious cases of this kind it is better to have a jury, because the opinion of twelve people is probably more satisfactory than the opinion of one".


In the present case there was a Jury. It is now said that their award was excessive. In considering this matter, the approach of the Court is different from its approach in cases tried by a Judge sitting alone, the appeal is by way of re-hearing The re-hearing applies to the issue of damages as well as to other issues. But it I recognized that the fixation of damages is so largely a matter of opinion or of impression that differences of calculation or assessment are to be expected. There is to some extent, an exercise of judicial discretion. It is for his reason that, if three Judges of the Court of Appeal consider that the amount of general damages that they would have awarded would have been a figure different from that decided by the trial Judge, they will not, for that reason alone, give preference to their figure; they will only do so if satisfied that the Judge has acted on a wrong principle of aw or has misapprehended the facts, or has, for those or other reasons, made a wholly erroneous estimate of the damage suffered (see the speech of Lord Wright in Davies V. Powell Duffryn Associated Collieries). But, if there has been an assessment of damages by a Jury, the function of the Court of Appeal on a complain that the damages are too high or too low, is different. Where the Order of the Court has been that trial is to be with a Jury, then twelve jurors have collectively (and, be it remembered, unanimously) to decide upon as assessment. On appeal, always assuming that the trial has been properly conduced ad that the Jury he been properly directed it is not for the members of the Court of Appeal to seek to substitute their assessment and their judgment for that of the Jury; the function of the Court of Appeal is then directed to considering whether or not the figure stated by the Jury is out of al proportion to the circumstance of the case. Unless it is, this Court must not interfere. The Jury do not have to give reasons, ad it may be impossible to deduce how the Jury have regarded the particular individual features of a claim, much as, for example in a personal injuries case, pain and suffering, deprivation of the amenities of life, and future possible loss of earnings. To warrant any interference with the award of Jury it is not enough to say that the award is more, or been much more, or less, or even much less, than what the Judges of the Court of appeal would consider to be the appropriate amount. The Court of Appeal will not interfere if the figure in one which a Jury, acting properly, might award. Interference will be justified if it is made to appeal that the Jury must have acted improperly and so have brought about a palpably wrong result. If the figure of a award seems to be outrageous, or so extravagant that no other Jury would repeat it, them there might, in some cases, be ground for suspecting that a Jury has been partial or perverse. But, as the Court of Appeal will only have the figure, as announced by the Jury, to consider, the Court will have to decide, upon a consideration for the figure itself, whether it appears so excessive or so inadequate that no twelve reasonable jurors could reasonably have awarded it; or, stated otherwise, whether the figure appears to be out of all proportion to the circumstances of the case (see the speech of Lord Wright in Mechanical and General Inventions Company Limited V. Austin Motor Company Limited, reported in 1935 Appeal Cases).


In the present case we were referred by Mr. Skelhorn in, if I any be allowed to say so, a most powerful address, to some figure of awards in cases resembling the present one which had been tried by Judges alone. He submitted that the award of Jury I the present case should be regarded as being higher than those awarded by Judges in comparable cases. Whether this be so or not cannot be in any way decisive in this case.


In cases which are comparable but which re decided by different Judges, a certain pattern of level of awards of damages may emerge. If, however, an award of Jury does not seem to conform to such pattern, that is not to prove that the jury is necessarily wrong. The views of juries may from a valuable corrective to the views of Judge. The Jury will not necessarily have knowledge of any pattern or level which Judges have thought to be appropriate, and the Jury are not bound by any such pattern or level.


Of course it is inevitable that members of the Court of Appeal, when considering a complaint against the award of a Jury, will formulate individual views as to the figure of damages which they themselves would have deemed appropriate. That will be comprehended within, and will be one part of the process of deciding whether the Jury's award is out of all proportion to the circumstances of the case. It must, however, be no more than a part of that process. The figure of an award by a Jury is not to be deemed to be wrong merely because Judges might have arrived at a different figure.


Where, therefore, a Jury is charged with the responsibility of assessing damages, their conclusion will only be assailed or displaced if attack can be made upon it on the lines that I have mentioned.


With that approach, I now consider the facts in the present case. The Jury found in favour of the Plaintiff on the issue of liability, and therefore had to assess the figure of damages. The figure of special damages was not much in contest. The injuries sustained by the Plaintiff were undoubtedly extremely grave. He had a fracture of his spine, broken ribs, and the left lung was collapsed. At first there was total paralysis below the waist. The Plaintiff was about 28 or 29 years of age at the time of the accident. He was in bed for many weeks, but he was discharged from hospital on the 11th November, 1957, the accident having been on the 4th May, 1957. He then was able to walk with a caliper and by using a stick, though he was somewhat unsteady. He showed a courage and determination which were applauded by al concerned in the litigation, and his anxiety to get back to work was assisted by hose who had previously employed him. They took him back at his previous the of remuneration, although he was only able to do one part of the work that he was employed to do. He was in charge of the maintenance department in the garage belonging to Nostle's Limited. He was a skilled artificer, but, after the accident, he was unable to do the practical side of his work: he had to concentrate on clerical or administrative work. Although his employers were in no way connected with accident they were generous indeed. The sent a car for him each morning, they allowed him to work less than a full day(although...

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