William John Gunn V. Mrs. Anne Gillian Bowie Or Newman
Jurisdiction | Scotland |
Judge | Lord Hamilton |
Docket Number | O1268/5 |
Date | 19 December 2000 |
Court | Court of Session |
Published date | 19 December 2000 |
OUTER HOUSE, COURT OF SESSION | |
O1268/5/98
| OPINION OF LORD HAMILTON in the cause WILLIAM JOHN GUNN Pursuer; against MRS ANNE GILLIAN BOWIE or NEWMAN Defender: ________________ |
Pursuer: Ivey, Q.C.; Shepherd & Wedderburn , W.S. (for Stronachs, Inverness)
Defender: Jones, Q.C., Milligan; Simpson & Marwick, W.S.
19 December 2000
[1]On 4 January 1996 the pursuer, then in his early 40s, was driving his motor car on the A9 road north of Inverness. As he approached the junction with a minor road a motor car driven by the defender emerged from that road and collided with the pursuer's vehicle. The defender subsequently pled guilty in respect of this incident to a contravention of section 3 of the Road Traffic Act 1988.
[2]In this action the pursuer seeks damages for loss, injury and damage allegedly sustained by him as a result of the defender's conduct. On 3 February 1999 the court, on the unopposed motion of the pursuer, granted summary decree to the effect of sustaining the pursuer's plea on liability and repelling the defender's pleas on that aspect of the case. The only matter remaining at issue is accordingly the amount of damages payable by the defender to the pursuer in respect of the consequences of this incident.
[3]The pursuer sustained, he avers, multiple injuries. He was, according to his averments, detained in hospital until 23 February 1996 and continued thereafter to suffer and still suffers from painful and disabling conditions as a result of the accident. He seeks reparation from the defender in respect of (1) solatium, (2) financial loss by reason of his inability or restricted ability to continue the building and construction business which he carried on in partnership with his wife, (3) services rendered to him by his wife and by his mother-in-law and (4) damage to items of property. The total sum sued for is £500,000.
[4]The defender's response to the pursuer's averments of loss, injury and damage is "The nature, extent and consequences of any loss, injury and damage sustained by the pursuer are not known and not admitted", followed by a general denial and by certain particular averments in support of the proposition that the sum sued for is excessive. These latter averments are mainly related to the pursuer's claim for financial loss but include averments that the pursuer had prior to the accident long-standing degenerative arthritic changes in his lower back and that certain injuries sustained by him are now in a stable condition - matters which may bear upon the assessment of his claim for solatium.
[5]The defender has, following amendment, a plea in the following terms:
"The case being unsuitable for trial by jury, the action should be remitted to proof before answer."
At Procedure Roll the defender's counsel moved me to sustain that plea. Despite its formulation and the appearance on the face of the record of a general plea to the relevancy of the pursuer's averments, no issue of relevancy was raised before me and I understood the defender's counsel to be seeking an order for proof simpliciter. The pursuer's counsel moved me to allow issues.
[6]As will appear, the matter debated before me potentially has significant implications for the procedure of trial by jury in the Court of Session of claims for personal injuries, including personal injuries resulting in death. Although not so stated expressly, the present case can fairly be regarded as seeking to test the effect of the Human Rights Act 1998 ("the 1998 Act") on the continued availability of civil jury trial as a mode of inquiry in relation to any action which involves a disputed claim for solatium for personal injuries (or for loss of society for the death of a relative). The test character of this case is illustrated by the circumstance that the defender's submission that the case be withheld from jury trial was founded solely on the existence of the disputed claim for solatium, no reliance being put on the existence or features of any of the other claims.
[7]The defender's submission, which was presented by Miss Milligan and developed by Mr Jones, was that to send this case to trial by jury would be incompatible with the defender's right to a fair hearing as guaranteed under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It would be unlawful, it was argued, for this court, as a public authority within the meaning of section 6 of the 1998 Act, to send, incompatibly with the defender's right, this case to jury trial unless the court could not, as a result of primary legislation interpreted in the manner prescribed by section 3(1) of the Act, act in any other way. There were accordingly two questions to be addressed - (1) whether trial by jury would violate the defender's right and (2) if it would, whether the court was bound by primary legislation, in this case section 11 (as read with section 9(b)) of the Court of Session Act 1988 ("the 1988 Act"), to send the case to trial by jury.
[8]In support of an affirmative answer to question (1), six factors were urged. First, a defender approached a proof before a judge sitting alone with the legitimate expectation that the court's award of solatium would fall within parameters established by comparable awards. On the basis of that expectation a defender could protect himself in expenses by lodging a tender informed by advice on such parameters. By contrast, a jury under present practice was allowed to receive no guidance from the parties or from the presiding judge as to any comparable awards (whether by judges or by other juries). Thus, the defender and her advisers could not on any rational basis calculate an appropriate figure to tender. Second, because a defender was at a jury trial (in contrast to a proof) denied the opportunity of laying before the tribunal comparable cases and arguing that any award should be in line with them, the defender would, as a matter of comparative justice with other defenders, not receive a fair hearing. Third, a jury, in contrast to a judge, had no prior experience of determining the amount of solatium claims. In the present "liability" culture, a jury was likely to be informed by extraneous matters, such as awards in high profile defamation actions. Any guidance given to them by reference to the purchasing power of familiar items would be of no assistance. Fourth, a judge would give reasons for his award, a jury would give none. Fifth, a jury award could itself be grossly unfair. The now leading authority, Girvan v Inverness Farmers Dairy 1998 S.C. (H.L.) 1, had followed and applied Landell v Landell (1841) 3 D. 819 where it had been held that a jury award could not be regarded as excessive unless a reviewing court had the moral conviction that the jury had committed a "gross injustice". Even the "working rule" (of 100% divergence) referred to by Lord President Inglis in Young v Glasgow Tramway and Omnibus Co (Limited) (1882) 10 R. 242 was no longer a definitive check. The approach followed by Lord President Emslie in McGregor v Webster's Executors 1976 S.L.T. 29 had been disapproved in Girvan v Inverness Farmers Dairy. Reference was also made to McGinley v Pacitti 1950 S.C. 364. Sixth, the unfairness inherent in a jury trial was not capable of being remedied under the statutory provision for review (section 29 of the 1988 Act, as that statute and its statutory predecessor had been judicially and authoritatively interpreted). The circumstances in which a jury award could be set aside as being excessive were very limited and the only power available to the Inner House on such review was to order a new trial. Given these factors, it was manifest, it was argued, that the appointment to jury trial of the present action (which included a claim for solatium) would inevitably give rise to an infringement of the defender's guaranteed right to a fair hearing. In respect of European jurisprudence, especially on the requirement to give reasons, reference was made to Hadjianastassiou v Greece (1992) 16 E.H.R.R. 219, Hiro Balani v Spain (1994) 19 E.H.R.R. 566, Helle v Finland (1997) 26 E.H.R.R. 159, Bryan v United Kingdom (1995) 21 E.H.R.R. 342, Van de Hurk v The Netherlands (1994) 18 E.H.R.R. 481 and X v Federal Republic of Germany (1981) 8769/79 (a Commission decision). Stefan v General Medical Council [1999] 1 W.L.R. 1293 was also of assistance. In England the Court of Appeal had, long since and having regard to the disadvantages in modern circumstances of civil jury trials in personal injury cases, held it to be not a proper exercise of discretion to appoint such a case to that mode of inquiry (Sims v William Howard & Son Ltd [1964] 2 Q.B. 409).
[9]In support of a negative answer to question (2) counsel for the defender submitted that, in approaching the construction of section 9(b) of the 1988 Act after the coming into force on 2 October 2000 of the 1998 Act, it was proper to disregard earlier judicial interpretations of that section or its statutory predecessor. It was accepted that there was an established body of authority to the effect that "special cause" must be a cause special to the particular circumstances (see, for example, Walker v Pitlochry Motor Co 1930 S.C. 565, per Lord President Clyde at p.575 and per Lord Blackburn at p.576). But such authority was not now binding since section 3 of the 1998 Act required as from 2 October 2000 the court, so far as possible, to read and to give effect to section 9 in a way which...
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