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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLeod v British Railways Board [2000] ScotCS 333 (22 December 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/333.html
Cite as: [2000] ScotCS 333, 2001 SCLR 110

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Philip

Lord Weir

 

 

 

 

O177/5/1995

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

in the cause

MARTIN McLEOD

Pursuer and Respondent;

against

BRITISH RAILWAYS BOARD

Defenders and Appellants:

______

 

Act: McEachran, Q.C., Smith; Drummond Miller, W.S. (for Blair & Bryden, Greenock)

Alt: Ivey, Q.C., Lamont; Biggart Baillie

 

22 December 2000

[1] In June 1991, when he was twelve, the pursuer and a number of friends were playing near a railway embankment. He climbed on to a pipe which spanned the railway line and, while walking along it, he fell and landed on the overhead electric cables. As a result he suffered extensive electrical burning injuries for which he sued the defenders. On 16 March 2000, after a trial lasting three days, the jury found the defenders liable to the pursuer but also found the pursuer contributorily negligent, to the extent of twenty per cent. The pursuer's claim was for solatium only and he concluded for £400,000. Subject to the matter of contributory negligence, the jury awarded him £200,000 for past solatium and £50,000 for future solatium. The defenders did not challenge the jury's finding of liability and neither party challenged the finding on contributory negligence. But the defenders applied to this court for a new trial under Section 29(1)(d) of the Court of Session Act 1988 "on the ground ... (d) of excess ... of damages".

[2] In support of the application Mr. Ivey, Q.C., began by arguing that the commencement of the Human Rights Act 1998 had changed the way in which the court required to apply Section 29(1)(d) of the 1988 Act. It had now to be read and given effect in a manner which was compatible with the parties' Convention rights. This meant that the whole procedure, including the procedure for granting or refusing a new trial, had to be such as to produce a fair hearing. More particularly, he went on to argue that in certain respects the system prescribed by Section 29 of the 1988 Act did not result in a fair hearing.

[3] In making that submission, Mr. Ivey was at pains to emphasise that he was not arguing that jury trials in personal injury actions were in themselves unfair and contrary to Article 6 of the Convention. He understood that such an argument had indeed been advanced in another case in the Outer House, but he was not relying on it here. The starting-point for his submission was, therefore, that Parliament had duly allotted certain types of damages actions for determination by a jury and this was one of them. If the jury performed their function properly, no breach of Article 6 would arise. The breach arose when something had gone wrong and a party wished to apply for a new trial on the ground of the excess or inadequacy of the damages awarded by the jury. In these circumstances the test in Section 29, as interpreted in Landell v. Landell (1841) 3 D. 819, did not give the court sufficient power to intervene to protect the rights of the party affected by the decision of the jury, especially since the jury were not required to give their reasons for arriving at their particular assessment of damages. This lack of proper judicial control over the level of jury awards created a system in which awards of damages lacked uniformity and parties could not readily predict what the damages in their case would be. One consequence was that defenders had no proper basis upon which to judge the level at which to pitch a tender.

[4] We reject this submission. Although the matter was not explored, we understood Mr. Ivey to be arguing that the court, as the relevant public authority, had to act compatibly with the defenders' Convention rights (Section 6(1) of the Human Rights Act) and should do so by interpreting Section 29 of the 1988 Act so as to ensure that the defenders' civil rights were determined in conformity with Article 6(1) of the Convention. As we have explained, the defenders accepted that, if the jury performed their function properly, the issues between the parties would be determined in a way that was compatible with the requirements of Article 6. All that we can ask of a jury, however, is that they reach a decision which could be reached by a reasonable jury properly directed. That being so, if the proceedings as a whole are to be fair, it is both necessary and sufficient that this court be able to set aside the verdict of the jury and order a new trial if the damages which they award are more or less than any reasonable jury could award. That is, essentially, the test for the use of our power which was laid down by the Whole Court in Landell. In particular, Lords Fullerton, Mackenzie, Jeffrey and Murray said that the court could interfere if the jury "have given higher damages than any jury of ordinary men fairly and without gross mistake exercising their functions, could have awarded" (3 D. at p. 825). We are accordingly satisfied that the court has the requisite power to ensure that awards of damages conform to the standard envisaged by Parliament and therefore that the proceedings as a whole are fair in terms of Article 6(1).

[5] Mr. Ivey submitted that, having regard to Section 3 of the Human Rights Act, the court should interpret Section 29(1) of the 1988 Act as allowing the court to grant a new trial if the damages were excessive, when tested in the same way as the court would scrutinise a judge's award of damages as solatium for pain, suffering and loss of amenity. This court tends to apply a somewhat stricter test in reviewing a judge's assessment of damages (Purdie v. William Allan & Sons 1949 S.C. 477 at pp. 479 - 480). But any more intensive scrutiny of jury awards by reference to the judges' own assessment of the proper level of damages would mean that ultimately the levels of damages were being set by the appeal judges rather than by the juries, even though Parliament has assigned the task of assessing what constitute reasonable damages, in cases like the present, to juries. Such an approach would therefore run counter to Parliament's intention in passing the legislation. That intention is reflected in the fact that, unlike the Court of Appeal in England, when hearing an appeal, this court has no power to fix the damages itself, its only power being to order a new trial. This objection to any change of approach by the court at its own hand has been recognised repeatedly from Landell onwards, most recently and most authoritatively by the House of Lords in Girvan v. Inverness Farmers Dairy 1998 SC (HL) 1. There is nothing in the Human Rights Act to detract from the force of that reasoning. We recognise, of course, that in any system where juries assess damages the level of awards may be unpredictable and may vary significantly. These characteristics of jury awards will be all the more apparent where, within the same legal system, judges also assess damages but in an altogether more predictable fashion. Whatever may be the force of these general criticisms of jury awards in Scots law, they are not a reason for saying that, in this case, the defenders' right to a fair trial will have been infringed if we apply the Landell test as endorsed in Girvan.

[6] Mr. Ivey submitted, however, that, even on that approach, we should grant the defenders' application for a new trial. We therefore turn to the facts relating to the pursuer's injuries. Before us they were not really in dispute.

[7] As a result of the accident in June 1991 the pursuer sustained a burn which involved most of the upper part of his body and covered more than thirty per cent of his total body surface. It affected the whole thickness of the pursuer's skin and, because of the underlying effects of the electrical burn, it was potentially life-threatening. He was treated in hospital for about seven months, during which he underwent at least four or five skin-grafting operations, involving taking skin from his thighs and putting it on to the areas of his arms, the front of his body and his neck where the skin had been destroyed. This process would lead to pain lasting for ten to fourteen days. The pursuer required to be bathed every two or three days and new dressings had to be put on. Again, this was painful. He also required to wear splints and to have regular physiotherapy to try to maintain the movement of his joints. All this involved hard work and effort, discomfort and pain. The pursuer had been given dihydrocodeine and morphine to relieve the pain. Even when he was able to leave hospital, he still had to attend regularly as an outpatient. He was also re-admitted on three occasions for secondary surgery to deal with areas, especially on the side of his neck, on his arm and on his hand, where the skin had contracted as he grew. For a period of about two years he had been unable to dress himself, but that was no longer a problem. The constant pull on the left side of his lower jaw meant that it did not develop fully and, in particular, it did not come forward as much as it should have. Fortunately, the pursuer's speech had not been significantly affected.

[8] By the time of the trial the pursuer was twenty-one and fully grown and the degree of scarring then present was likely to be permanent. When he was dressed, the visible areas of scarring were on the left side of his face and neck. He also had scarring of the back and front of his right hand. At one time the fingers had been clawed. This had been improved by an operation but his little finger was still flexed and this affected his ability to write and to carry things. In future he might have an operation to the underside of his left armpit to improve the range of movement in his shoulder joint which was restricted by the scar in that area. He might also need to undergo a further operation to try to improve the range of movement and appearance of his neck. It was likely that he would ultimately achieve approximately ninety per cent of the normal range of movement in those areas.

[9] The pursuer gave evidence at the trial and so the jury were able to see him and to see the scars which were visible when he was fully dressed. He had also lifted his shirt and the jury had been able to see the scars on his upper chest and back and under his armpit, as well as on his forearms and right hand. We were told that, when the pursuer lifted his shirt for this purpose, he could be seen to be somewhat embarrassed. Mr. McEachran for the pursuer stressed that, with this opportunity actually to see the pursuer's scars, the jury were in a much better position than we are to judge their significance. Besides the notes of evidence, all that we have are a photograph of the pursuer taken some months before the accident, showing a young boy of good unblemished appearance, and a series of photographs taken about two years after the accident, by which time he would have been about fourteen. On these photographs the extensive scarring on the left side of his face and neck, with some resulting pulling on his jaw, is obvious. One can also see the areas of scarring on his hand, arms and legs.

[10] In his evidence the pursuer gave an account of his injuries which was anything but overstated. In particular he said that they had been sore only at the time of his operations and when they were healing. At the time of the trial the scars were not sore. He said that he had learned to live with the scars round the left side of his mouth and down on to his neck. The scars on his arms and legs were usually covered, but he was unhappy about taking his shirt off. He thought that the scarring to his mouth had resulted in problems with his teeth.

[11] One further matter needs to be mentioned. At the time of the trial the pursuer was a prisoner in Shotts Prison where he was serving a sentence of imprisonment for assault and robbery, carried out with a view to obtaining money at a time when he was taking drugs. He had pled guilty to the offence and he had other convictions for dishonesty. Counsel for the pursuer suggested that these events and his imprisonment may have explained why - perhaps somewhat surprisingly - in his evidence the pursuer did not seem to be conscious of any effect or potential effect of the scarring on his social life.

[12] On behalf of the defenders Mr. Ivey referred us, though not in any detail, to the cases on burns and scars gathered in McEwan and Paton on Damages for Personal Injuries in Scotland pp. 553-555. None of them provided an exact parallel but he submitted that they suggested that in the present case a judge might have awarded between £50,000 and £60,000 as solatium for the pursuer's injuries. Under reference to Lord Hope's guidance in Girvan (1998 S.C. (H.L.) at p. 16 H - 17 C), he submitted that the court should take the upper end of that range as the starting point for considering whether the damages awarded by the jury were excessive. For his part, Mr. McEachran chose quite deliberately not to comment on the proposition that a judge would have awarded damages of about that amount. His only observation was that the level of award suggested by Mr. Ivey might fall to be increased in the light of the decision of the Court of Appeal in Heil v. Rankin [2000] 2 WLR 1173. He did not suggest what the appropriate increase might be but on that approach the range suggested by Mr. Ivey might translate, it seems, into a range of roughly £55,000 to £67,000. For two reasons, we can work on the basis of these figures without investigating the matter in detail. First, Mr. McEachran accepted that, by reference to the level of award which a judge might be expected to make, the jury's award in this case was "very high". Secondly, from the defenders' point of view, even if the potential award by a judge were increased in this way and that were taken as the starting point, the defenders could still advance their argument that the sum awarded by the jury was excessive, since it would represent between three and four times the amount which a judge would have awarded. We note that in Girvan the figure awarded by the jury for solatium (£96,000) was more than three times the figure (£25,000 - £30,000) which a judge might have been expected to award. See 1998 S.C. (H.L.) at p. 20 D.

[13] Mr. McEachran submitted that, in this case at least, we should not start by considering what a judge would have awarded. He, rightly, pointed out that Lord Hope had not sought to prescribe the method by which this court should decide whether a jury award was excessive. He had merely said that, "if it finds it helpful", the court might first consider what a judge would have awarded and then compare that figure with the sum awarded by the jury. Mr. McEachran said that here we should begin by looking at the awards made by juries in personal injuries cases in the last ten years. These tended to be higher than the awards made by judges. This did not mean that the juries' awards were wrong or too high; rather we should notice that juries appeared to think, quite legitimately, that the appropriate level of damages was higher than the level adopted by judges. The court could more readily reach that conclusion in the light of the report of the Law Commission on Damages for Personal Injury: Non-Pecuniary Loss (Law Com No 257, 1999). The Law Commission had commissioned a survey of public opinion about the appropriate damages to award for various injuries. About three-quarters of those consulted had thought that awards for non-pecuniary loss as a result of very serious injuries were too low, while about half thought that, across the board, awards for non-pecuniary loss were too low. We refer to the summary in paragraph 3.5 of the Report.

[14] Mr. McEachran was able to point to only one jury award in a case of burning: Wells v. Hay 1999 Rep. L. R. 44. The pursuer was the mother of a young man who had been seriously injured in a car crash. He sustained closed fractures of the right femur and left fibula, a fractured skull, chest injuries, and a partial lung collapse. The car burst into flames and he received sixty per cent full thickness burns to most of his body, including his face. He was trapped in the car for forty minutes. He was conscious for about an hour after the crash and during that time he responded to pain by moving, moaning and screaming. He was admitted to intensive care but died sixteen days later, having regained consciousness on at least one occasion and having thereby experienced some pain and discomfort. The jury awarded the pursuer, as the executrix of her son, £50,000 for his pain and suffering. Mr. McEachran acknowledged the obvious differences between that case and the present case, but he contended that it was none the less of considerable relevance: it showed that a jury considered that £50,000 was the appropriate solatium to award to someone who had suffered these appalling injuries even though he had been conscious of them for only a very short time before he died. That being so, how could this court say that no reasonable jury could take the view that £250,000 was the appropriate sum to award the pursuer in this case where, though his injuries were no longer physically painful, he would have to live with their effects for, maybe, as much as sixty years from the time of the accident?

[15] Mr. McEachran also explored the facts of Landell to show how large had been the sum of damages which the court had regarded as being within the range open to a reasonable jury. The pursuer had been awarded £500 damages for wrongful detention for a few days in conditions which seem to have been surprisingly congenial. Although Mr. McEachran did not put forward an index which dealt specifically with changes in the value of money since 1841, he referred us to the index in Whitaker's Almanack 2000, p. 610 which suggests that the purchasing power of £1 in 1914 was about 58.18 times the purchasing power of £1 today. It was thought that the purchasing power of money had decreased little, if at all, between 1841 and the outbreak of the First World War. On this admittedly rough calculation, the damages awarded to the pursuer in Landell had been the equivalent of approximately £30,000 - £35,000 in today's money. Another way of looking at the matter would be to note that in 1841 the Lord President was paid £5,000 and Outer House Judges £3,600. These sums had presumably been thought sufficient for them to maintain an appropriate lifestyle and they were not indeed increased significantly until 1954. The damages awarded to the pursuer for her wrongful imprisonment were therefore very large, but the court had declined to interfere with the jury's assessment of what was appropriate. Similarly, in the present case, even though we might easily conclude that the damages were very large, especially by comparison with a possible award by a judge, we should also decline to interfere with the jury's assessment of what could properly be awarded.

[16] We have not found the decision in this case straightforward especially given the much higher award which the jury have made for past solatium as compared with future solatium. But Mr. Ivey made no submissions on that point and, having looked at the matter as a whole, we have come to the conclusion that we should not interfere with the jury's award. In reaching that conclusion we attach importance to the fact that we did not see the pursuer or any recent photographs of him whereas the jury had a good opportunity to observe him in the witness box and to examine the areas of scarring. They were therefore in a better position than we can be to judge both the cosmetic and the functional effects of the scars. Even more importantly, however, we are conscious that, as has been said so often, opinions as to the appropriate sum to award for solatium may vary greatly. This is all the more so in a case where the pursuer has suffered severe physical pain for some time but has also been injured in a way which must inevitably affect him psychologically and socially. The pursuer carried this burden through his youth and may have to do so for another fifty years. Whatever else may befall, he will never waken to find that his scars have gone or that his right hand is normal. As judges, we have access to no infallible secret recipe for transmuting what the pursuer has suffered and will continue to suffer into a money award of a precisely ascertainable level. Nor, it should be remembered, do jurors find any such recipe lying, ready for them to consult, on the table in the jury room. We fully and expressly acknowledge that any judicial award of damages is likely to have been very much less than the sum awarded by the jury. But, like everyone else, jurors live in a world where huge sums are paid to professional footballers and are won by competitors in television quiz shows. This may well affect the value which jurors put on money in general and in particular in relation to injuries such as the pursuer has suffered. Against that background, and having regard to all the circumstances of the case, we find it impossible to say that no reasonable jury, having duly and conscientiously considered the pursuer's injuries in the light of the evidence, could have made the same award as the jury in this case. In the language of Landell, the sum awarded, although very large, does not raise in us the moral conviction that, whether from some wrong intention, or incapacity, or some mistake, the jury have committed gross injustice. Nor, again, are all our hands "lifted in astonishment" at the sum which the jury have awarded.

[17] For these reasons we refuse the motion for a new trial. We feel no particular satisfaction in doing so. A legal system which regards as legally justifiable two wholly different awards of damages for the same injury, depending purely on the procedure adopted, lacks the element of consistency which is one of the hallmarks of a mature system. While, therefore, that lack of consistency does not point to a breach of the parties' Convention rights, it does suggest that there may be a need for re-examination and reform, as Lord Hope observed indeed more than three years ago in Girvan (1998 S.C. (H.L.) at p. 22).


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