Across the divide

In explaining the purpose of precedents in valuing loss, I often tell my clients that just because Mrs Jones or Mr Smith received certain awards for their injuries does not mean that an objective yardstick has been set. However, a cornerstone of justice is consistency. It is fair and reasonable to expect that everyone will receive broadly similar awards for similar injuries or loss. Predictability, which allows parties in most cases to come to a fair settlement without submitting to the ordeal of a hearing in open court, is an important corollary of consistency. 

In recent years, fatal cases have presented the courts with a dilemma, given the widening gap between judge and jury awards for bereavement. Our system recognises the role of both juries and judges in providing guidance as to the appropriate levels of awards. What do you do, however, when jury awards are consistently up to four times the level of judicial awards? This represents an unsustainable anomaly, characterised by Lord President Rodger in McLeod v British Railways Board 2001 SC 534 as lacking the “consistency which is one of the hallmarks of a mature system”. The amount awarded to the bereaved should not vary so widely depending on the mode of inquiry adopted.

In the joint appeals Hamilton v Ferguson Transport (Spean Bridge) Ltd; Thomson v Dennis Thomson Builders Ltd [2012] CSIH 52; 2012 SLT 715, a five-judge bench of the Inner House addressed this dilemma and sought to provide a solution. In Thomson, a father claimed for the loss of his 26-year-old son in an industrial accident. Liability was admitted. The defenders may have anticipated that a jury might be less sympathetic to Mr Thomson, who was suing his own company for a strict liability breach. However, the jury awarded him £90,000. In Hamilton, a 67-year-old retired teacher whose wife was killed on a Highland road was awarded £80,000. Their 17-year-old daughter was awarded £120,000.

In both cases, the defenders enrolled motions for new trials, arguing that the awards to the father in Thomson and the daughter in Hamilton were excessive. The appeals succeeded and the motions were granted. The Inner House has provided much to consider.

Applying the “benchmark” test

The test for whether jury awards are excessive is whether no reasonable jury properly directed could have made the award in question. Lord Hope observed in Girvan v Inverness Farmers Dairy 1998 SC (HL) 1 at 16 that the Inner House can “take as its starting point” its own assessment of the sum that would be appropriate on a proper judicial assessment of the value of the claim. Lord Hope went on to say: “Awards made by both judges and juries should be taken into account at this stage.”

Once the Inner House has established the benchmark by reviewing both judicial and jury awards, it must proceed to compare it with the award under review. A “rule of thumb” has developed whereby the appellate court would consider an award to be excessive if it is more than double the benchmark figure.

An example is Girvan, where Lord Hope observed: “I would be inclined to set the figure for the appropriate judicial award, taking the most pessimistic view of all the physical and emotional effects of the injury – but leaving out of account the effect on the pursuer’s sporting activities [ending his successful shooting career] – at about £25,000 to £30,000. But the factor which I have left out of account in this assessment is a factor of great importance, because a jury would be entitled to attach great weight to it in reaching their view as to how much money should be paid to the pursuer to compensate him for what, in this respect, he has lost.”

Lord Hope did not seek to put a value on that factor, but held that the solatium awarded by the second jury (£95,000) should not be disturbed.

Given the apparently irreconcilable gap between judicial and jury awards, the Lord President in Hamilton conceded that applying the test for excess was a “difficult and uncertain” task. The court’s conclusion was that the awards of £120,000 to the daughter in Hamilton and the £90,000 to the parent of an adult deceased child were indeed excessive.

While the Inner House did not indicate what it considered the benchmark figures to be, we can probably conclude that it considered the benchmark figure for a parent of an adult child in the circumstances of Mr Thomson to be less than £45,000, and that of a young adult daughter who has lost her mother to be less than £60,000. Interestingly, the Lord President observed that the argument that the Thomson award was excessive was “less compelling”. The court, for reasons I will discuss, declined to set out a definitive benchmark.

Bridging the gap

The court’s main concern in Hamilton was to address the divergence between judge and jury awards. The Inner House set out three methods to bring judicial awards more in line with jury awards: first, by recommending that the judiciary has “significantly more regard to available jury awards (particularly where they demonstrate a pattern)”; secondly, by giving juries fuller guidance as to the level of damages which, consistently with other cases, might reasonably be awarded; and, thirdly, by appellate courts continuing to intervene, where necessary, on comparative justice grounds to correct any awards by either judge or jury that are considered too low or too high.

Effect on judicial awards

It is perhaps overlooked that relatively few fatal claims are decided by juries. The majority are settled out of court or before a judge. Any changes in judicial awards are likely to have significant implications for claims for bereavement.

In Bellingham v Todd [2011] CSOH 74, the bereavement claims for the parents of a 40-year-old deceased were assessed at £15,000 each. The 37-year-old widow was awarded £50,000; a three-year-old son and seven-year-old daughter, £25,000 each; a 25-year-old son, £15,000; and an adult brother, £10,000.

Following soon after came Wolff v John Moulds (Kilmarnock) Ltd [2011] CSOH 159; 2012 SLT 231. The bereavement claims were brought by a 69-year-old widow, adult daughters aged 32, 43 and 45, and a 13-year-old granddaughter. The Lord Ordinary awarded £50,000 to the widow, £18,000 to the 32-year-old daughter, £15,000 to the other adult daughters, and £6,500 to the granddaughter.

While the judges in both cases recognised the need to have regard to recent jury decisions, it is difficult to discern in the awards any significant movement on previous judicial awards. The Inner House in Hamilton made it clear that these awards were inadequate. Indeed, the Lord President concluded that the decisions “markedly undervalue” bereavement awards. There have been no judicial awards since the opinion in Hamilton, but it seems clear that historical judicial awards no longer provide a reliable basis for settlement of bereavement claims.

As was observed in Girvan, neither jury nor judicial decisions necessarily take precedence. It is the duty of the judge to have regard to both when assessing damages. While the Inner House has called for greater weight to be given to jury awards, it remains to be seen how judges will respond. The court has indicated what it regards as inadequate levels of award, but has offered little guidance as to what it would regard as appropriate.

Instead, it has accepted that a new body of case law will have to be developed over time, a process which, the Lord President concedes, “will take time and experience to mature”. We can anticipate that a judge sitting without a jury might award figures well in excess of recent judicial awards. However the appropriate levels will only become clear once a body of decisions has built up.

Juries – the new process

Juries, on the one hand, have the advantage of bringing to the decision-making process the fresh prospective of a cross-section of society. On the other hand, in the absence of guidance, recent jury awards have served to widen the gap in damages and have contributed to a loss of consistency. It is worth noting, however, that the inconsistency has been between judicial and jury awards; jury awards themselves have demonstrated a quite remarkable level of consistency.

The solution provided by the Inner House is that, at the conclusion of the evidence, the parties should, in the absence of the jury, briefly address the trial judge on their suggestions as to the appropriate level of non-pecuniary damages. In light of these submissions and having regard to his or her own experience and judgment, the trial judge would, in addressing the jury, suggest to them a spectrum within which their award might lie. That spectrum, they would be directed, was for their assistance only; it was not binding on them. What form the guidance might take would depend on the particular circumstances of the case. Where a range of figures was suggested, this might not comprise the whole span of the parties’ figures, but might be the range within which, in the judge’s opinion, a just award might properly lie. In some cases, a single, non-prescriptive figure or series of figures might be appropriate.

The jury will therefore no longer have to rely solely on the sum sued for as set out in the pursuer’s issue, but will be offered a range of figures reflecting both judicial and jury awards.

The new process in practice

In Kelly v Upper Clyde Shipbuilders, 29 June 2012, unreported (see panel), Lady Clark gave the jury a range of figures that they might consider for loss of society awards for the deceased’s widow and adult children. The range suggested for the widow was £40,000-£80,000. The range suggested for the children was £15,000-£35,000. Lady Clark made it clear that the range was simply for guidance and that it was a matter for them what they should award. The jury’s award to the widow was £40,000 and to the adult children £25,000.

It is perhaps not surprising that the awards were towards the lower end of the range. The jury might be expected to have taken the view that the death of an 82-year-old would involve a relatively short period of loss. Parties had agreed a loss of life expectancy of four years. It will be interesting to see what juries will make of cases involving younger deceased. In those cases which most touch the sympathy of the jury, we might expect to see awards at or above the higher level of the range. Obviously, the Inner House may require to rein in any awards that are clearly above the upper limit. Given that it has said that the criterion for a jury award to be considered excessive is 100% above the appropriate benchmark figure, juries may be allowed significant leeway.

Just as one swallow does not make a summer, so one judgment does not provide us with much in the way of guidance as to the approach which judges are likely to adopt. If we know that the pre-Hamilton levels of awards by both judges and juries are equally unpalatable to the Inner House, then until a significant body of case law has built up, solicitors acting for bereaved relatives will be faced with a considerable level of uncertainty as to the likely outcome, whoever the decision maker.

CASE STUDY

Kelly – a radical change?

The Inner House judgment in Hamilton v Ferguson Transport (Spean Bridge) Ltd; Thomson v Dennis Thomson Builders Ltd marked a radical change in the way civil jury trials will operate in the Court of Session.

The new practice laid down in Hamilton is that, at the conclusion of the evidence, counsel will address the judge in the jury’s absence with submissions on the appropriate level of damages, referring to previous awards, both judicial and jury. In light of these submissions and having regard to the judge’s own experience and judgment, the judge will then address the jury and suggest to them a range or spectrum within which their award might lie.

The judge will inform the jury that this is only for their assistance and is not binding on them. Counsel will also address the jury on suggested level of damages, though the jury will not be referred to specific previous awards.

The jury trial in Kelly v Upper Clyde Shipbuilders, which commenced on 26 June 2012, was the first to follow the new procedures.

John Kelly died aged 82 as a result of mesothelioma arising from his asbestos exposure at work. His death came months after diagnosis. Claims for loss of society were pursued on behalf of Mr Kelly’s widow, adult children, a sibling and grandchildren.

The trial judge, Lady Clark of Calton, gave guidance on a range of figures the jury might consider for loss of society awards for various relatives.

The range suggested for Mr Kelly’s widow was £40,000-£80,000 and for his adult children £15,000-£35,000.

The jury’s award for loss of society to Mr Kelly’s widow was £40,000. The adult children were awarded £25,000 each. Other awards were £8,000 each to grandchildren aged 15 and 16, £4,000 in respect of a grandchild aged seven, and £1,500 in respect of a grandchild aged two.

In this case, the jury seems to have been prepared to follow the trial judge’s guidance and the awards were fairly conservative having regard to the range suggested. The most recent judicial awards in a mesothelioma case were those of Lord Doherty in 2011 in Wolff v John Moulds (Kilmarnock) Ltd [2011] CSOH 159; 2012 SLT 231. The deceased in that case was aged 66. His widow was awarded £50,000. Two adult daughters were awarded £15,000 and a daughter who was living with the deceased at the time of his death was awarded £18,000. In Hamilton, the Wolff awards were criticised as markedly undervaluing the claims, but the jury’s awards in Kelly were not significantly higher than the awards in Wolff.