MARGARET FERGUSON AGAINST IAIN FERGUSON
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 63
PD2328/13
Lord Eassie
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD BRODIE
in the cause
by
MARGARET FERGUSON
Pursuer and reclaimer;
against
IAIN FERGUSON
Defender and respondent:
Pursuer and reclaimer: G Clarke QC, Lloyd; Lawford Kidd
Defender and respondent: Davie, Fraser Solicitor Advocate; Simpson & Marwick WS
14 August 2015
Introduction
[1] The pursuer is Margaret Ferguson. She is married. Her husband is Paul Ferguson. The defender, Iain Ferguson, is her brother‑in‑law.
[2] During the afternoon and evening of 1 January 2011 the pursuer and her husband were guests at a family party at the defender’s house in Dundee. They had arrived at the house at about 3pm. Over the course of the party the pursuer was drinking. While some others thought she may have drunk more, her recollection was that she drank three or four glasses of white wine. She may also have been drinking lager but she could not recall.
[3] Also present in the house on 1 January 2011 was the defender’s (since deceased) Scottish terrier, Dougal. Dougal was the family pet. The defender had acquired Dougal when Dougal was about seven weeks old in September 2001. In January 2011 he was therefore about nine and half years old. He was quite overweight. He suffered from arthritis. He spent most of his day sleeping. When he was awake it was a matter of general agreement that he was conspicuously well‑behaved. As the pursuer’s counsel put it in a leading question:
“So, over the years he’s shown himself to be good with people. The dog’s behaviour has never given any cause for concern.”
According to the pursuer, “[the] times I had been in his company he was always the perfect dog.” At trial the judge came to sum up the evidence of Dougal’s character as being that of “by all accounts, a very friendly good-natured little chap.”
[4] At about 11pm in the evening of the party, the defender and Paul Ferguson were sitting on a three-seat sofa in the living room of the house. Dougal was also on the sofa. The defender was to Paul Ferguson’s left and Dougal was to his right, lying partly on the third seat of the sofa and partly on Paul Ferguson’s lap. It was the defender’s impression that Dougal was asleep. The pursuer came into the living room. She sat on the sofa, to the right of Paul Ferguson. Then, after a time interval and in circumstances which came to be a matter of dispute as between the pursuer and Paul Ferguson, on the one hand, and the defender, on the other, Dougal bit the pursuer in the face causing her injuries which the pursuer in her pleadings describes as a full thickness laceration of the left side of her upper lip, extending to and involving the corner. As a consequence the pursuer has required hospital treatment, including surgery for scar revision. She has had four operations for the removal of scar tissue along the line of her wound. She has been left with some cosmetic and functional defect. The resulting scar remains plainly visible and is likely to remain so, notwithstanding that further surgery is contemplated. The pursuer was absent from work as a result of her injuries and lost wages.
[5] The pursuer has sued the defender for damages for personal injury in the sum of £50,000.
Procedure
[6] The summons in the action was signetted on 21 November 2013. The sole ground on which the pursuer founded was the strict liability of the defender, as Dougal’s keeper, in terms of section 1 of the Animals (Scotland) Act 1987. The pursuer wished to have a jury trial and moved for issues. This was opposed on behalf of the defender but allowed in terms of interlocutor dated 14 May 2014. The issue for the pursuer was approved on 28 May 2014, as was a counter‑issue for the defender. The question posed in the issue was whether the accident to the pursuer on 1 January 2011 at the defender’s address was caused to any extent by the defender’s breach of section 1 of the Animals (Scotland) Act 1987. Damages were claimed in respect of past and future solatium, loss of earnings, services rendered, a damaged dress and travel costs to medical appointments. The counter‑issue posed the questions whether the accident was wholly caused by the fault of the pursuer (a complete defence in terms of section 2(1)(a)(i) of the 1987 Act) and, in the alternative, whether it was partly due to the fault of the defender and partly due to the fault of the pursuer and, consequentially, how these respective faults should be apportioned for the purposes of the Law Reform (Contributory Negligence) Act 1945.
[7] The jury trial proceeded on 4 to 7 November 2014. The pursuer led the defender as her first witness. She herself gave evidence as did her husband, Paul Ferguson. Two medical witnesses also gave evidence for the pursuer: Alan Geddes, a senior house officer in oral and maxillofacial surgery; and Anas Naasan, a consultant plastic surgeon. The defender led his wife, Irene Ferguson, and his daughter, Laura Ferguson.
[8] At the close of the evidence both the issue and the counter‑issue remained before the jury. As far as damages were concerned, patrimonial damages were agreed between the parties at £1050, leaving past and future solatium as the heads of damage to be determined by the jury.
[9] Prior to the trial judge giving directions to the jury counsel for both parties addressed him on the practicalities of providing the jury with the sort of assistance which Lord President Hamilton had envisaged in his opinion in Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486. At paragraph [76] of his opinion the Lord President said this:
“As I have said, the current absence of judicial guidance to juries on levels of damages is an unsatisfactory feature of our practice. It should, in my view, now be changed. There was some discussion as to how procedurally this might be done. There was a broad consensus 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 level of non-pecuniary damages which would be appropriate. In light of these submissions and having regard to his 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, he would inform them, was for their assistance only; it was not binding on them.”
[10] Counsel and the trial judge in the present case appreciated that in attempting to put into practice what Lord Hamilton had proposed should be done, they were rather feeling their way or, as Mr Clarke put it to the trial judge “making it up as we go along”. The very broad guidance to be found in Hamilton v Ferguson Transport (Spean Bridge) Ltd has not been developed or refined in any subsequent reported case, and there is no Rule of Court or Practice Note requiring that a particular course be followed. That being so, the trial judge made it clear that he would welcome the views of counsel. These were provided, on 6 November 2014, when counsel addressed the judge in the absence of the jury (transcript, appendix vol 4 pp 494 to 506). In brief summary, in a context where reference to authority was limited exclusively to the (English) Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases in its 12th edition published in 2013, Mr Clarke, for the pursuer, suggested the figure of £40,000 as appropriate for past and future solatium and Ms Davie suggested something of the order of £10,000. The trial judge confirmed that he would direct the jury to the effect that these were the parameters which had been helpfully suggested by counsel but that it was for the jury to make the assessment. Counsel agreed to the trial judge’s proposal. Consistent with what he had said to the trial judge, when Mr Clarke came to address the jury, he simply stated: “So the figure I will give you for solatium past and solatium future, combined award, is £40,000”. Similarly, Ms Davie said that if the jury got to the stage of assessing damages:
“there is a range of awards that his Lordship will suggest to you and obviously Mr Clarke has suggested that you should be considering the top of the scale …I would suggest that an award …of £10,000 would be more appropriate.”
[11] When he came to deal with quantification of solatium the trial judge said this (appendix vol 4 pp 623, 631 and 632):
“It is the amount of compensation directly referable to the bite is what you are looking for and you have to arrive at a sum which is a reasonable estimate of the pursuer’s loss injury and damage; a fair and reasonable amount …In a case of this sort it is essentially a jury question, was this injury and was the residual scarring severe? How severe was it? Very severe, less severe? Was it disfiguring? Was it simply cosmetic? Was it something that just marred the pursuer’s appearance? These are all questions for you to assess and decide and it is because there is such a range of factors and such a range of possible outcomes that you will find counsel for the pursuer saying 40,000 on one hand and counsel for the defender saying 10,000 on the other. What the judge can do and I have got to bear in mind that it is not for me to suggest anything at all to you in positive terms about your award, is that I can indicate that the indications given by both counsel can be used by you as range finders in relation to the award of damages. Whether the spectrum of damages you focus in on lies within that or towards the middle of that or somewhere within it are all questions for you to consider and determine. So I am not going to say that the appropriate figure is x or that the appropriate range is x to y but you do have with those ranging figures from counsel, a spectrum within which you can make your award and that spectrum, if that is the right word to use, is just by way of assistance. It is not binding on you to any extent. That is just an indication.”
No note of exceptions was insisted in in respect of the trial judge’s charge.
[12] On returning their verdict, the jury answered the issue (whether the accident to the pursuer on 1 January 2011 was caused to any extent by the defender’s breach of section 1 of the Animals (Scotland) Act 1987) in the affirmative. They assessed damages as £4000 in respect of past solatium and £1000 in respect of future solatium. They answered the counter‑issue in its first alternative (whether the accident was wholly caused by the fault of the pursuer) in the negative. They answered the counter-issue in its second alternative (whether it was partly due to the fault of the defender and partly due to the fault of the pursuer) in the affirmative. They answered the consequential question (how these respective faults should be apportioned for the purposes of the Law Reform (Contributory Negligence) Act 1945) by allocating 85 per cent to the pursuer and 15 per cent to the defender. The result was an award of damages in favour of the pursuer in the sum of £907.50.
The motion for a new trial
[13] The pursuer has applied for a new trial. She advances two grounds:
1. That the verdict of the jury in relation to contributory negligence is contrary to the evidence; and
2. That the jury’s award of damages at £5,000 represents an inadequacy of damages.
Legislation
[14] The Animals (Scotland) Act 1987 provides, inter alia:
“1. — New provisions as to strict liability for injury or damage caused by animals.
(1) Subject to subsection (4) and (5) below and section 2 of this Act, a person shall be liable for any injury or damage caused by an animal if—
(a) at the time of the injury or damage complained of, he was a keeper of the animal;
(b) the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent; and
(c) the injury or damage complained of is directly referable to such physical attributes or habits.
(2) In this section ‘species’ includes—
(a) a form or variety of the species or a sub-division of the species, or the form or variety, identifiable by age, sex or such other criteria as are relevant to the behaviour of animals; and
(b) a kind which is the product of hybridisation.
(3) For the purposes of subsection (1)(b) above—
(a) dogs, and dangerous wild animals within the meaning of section 7(4) of the Dangerous Wild Animals Act 1976, shall be deemed to be likely (unless controlled or restrained) to injure severely or kill persons...
...
(6) For the purposes of the Law Reform (Contributory Negligence) Act 1945, any injury or damage for which a person is liable under this section shall be treated as due to his fault as defined in that Act.
2.— Exceptions from liability under section 1.
(1) A person shall not be liable under section 1(1) of this Act if—
(a) the injury or damage was due wholly to the fault of—
(i) the person sustaining it; or ...
...
(3) In subsection (1) above—
(a) in paragraph (a) ‘fault’ has the same meaning as in the Law Reform (Contributory Negligence) Act 1945; ...”
[15] The Law Reform (Contributory Negligence) Act 1945 provides, inter alia:
“1. – Apportionment of liability in case of contributory negligence.
(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage: ...
...
4. – Interpretation.
The following expressions have the meanings hereby respectively assigned to them, that is to say—
‘court’ means, in relation to any claim, the court or arbitrator by or before whom the claim falls to be determined;
‘damage’ includes loss of life and personal injury;
...
‘fault’ means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.”
Ground 1: the verdict of the jury was contrary to the evidence
[16] In terms of section 29 (1)(c) of the Court of Session Act 1988 a party who is dissatisfied with the verdict of the jury in any jury action may apply to the Inner House for a new trial on the ground that the verdict is, in some respect or another, contrary to the evidence. Here, the pursuer’s dissatisfaction focused on the jury’s finding of contributory negligence. Mr Clarke’s primary submission on her behalf was that there was no basis whatever for such a finding but, in any event, an attribution of 85 per cent of the blame to the pursuer was so flagrantly wrong that no reasonable jury could make such an assessment.
[17] We have already noted that there was a dispute in the evidence as to the exact circumstances in which Dougal bit the pursuer. What the pursuer averred was:
“While she was sitting on the sofa, the pursuer turned round to speak to her husband. …Suddenly, and without warning, the dog jumped forward and attacked the pursuer. It bit the pursuer.”
When she came to give evidence that is essentially what the pursuer said had happened. The accounts given by the defender, his wife and his daughter were rather different. Although, as is emphasised in the pursuer’s note of argument, these accounts did not entirely coincide, they shared the feature of the pursuer putting her face close to the dog’s mouth immediately before she was bitten. As summarised in the pursuer’s note of argument, the evidence of the defender’s wife was that as the pursuer was sitting down on the sofa Dougal growled, the defender’s wife gave a warning (“watch him Margaret” or words to that effect) and the pursuer, in reaction to this, grabbed hold of the dog’s cheeks or whiskers and said “Wheesht you – give us a kiss”. It was then that Dougal, startled, according to the defender, bit the pursuer.
[18] Although the pursuer’s note of argument includes criticisms of the evidence which contradicted the pursuer’s account of what had happened, when he came to address this court Mr Clarke accepted that there had been evidence, which the jury had been entitled to accept, that the pursuer had acted in the way described by the defender’s wife and that included the pursuer putting her face into close proximity of the mouth of a dog that had recently been woken from sleep and had pulled the hairs of the dog’s face. Nevertheless, in Mr Clarke’s submission, that did not entitle the jury to make a finding of contributory negligence. For the pursuer to have been negligent as to her own safety and therefore to have contributed to her damage, it was necessary that it be reasonably foreseeable that Dougal might bite her if she acted in the way described by the defender’s wife. Otherwise, even if the jury found that the pursuer had acted in that way she could not be regarded as blameworthy and blameworthy conduct was necessary for a finding of contributory negligence. There was simply no evidence that it was reasonably foreseeable that a dog that was variously described as “biddable”, “placid”, “good with people” and “well used to being cuddled” would bite.
[19] We regard this line of argument as unsustainable. No motion was made to withdraw either the defence of sole fault or the partial defence of contributory negligence from the jury. That is not determinative, but the logic of the position which Mr Clarke took before this court is that such a motion should have been made and it was not. Perhaps more to the point is that, good natured and well‑behaved as the evidence revealed Dougal to be, with no hint of vicious propensities, he was a dog, with all the characteristics that that implies. Even a good tempered dog can be provoked and, as Mr Clarke had to concede, the jury was entitled to find that the pursuer had behaved in a very provocative manner. We see it as relevant to bear in mind that the pursuer’s case is based entirely on the Animals (Scotland) Act 1987. Subject only to the defences of sole fault (explicitly by virtue of section 2(1)) and contributory negligence (by necessary implication from section 1(6)) that Act imposes strict liability on the keeper of a dog because, as is provided by section 1(3) dogs shall be deemed to be likely (unless controlled or restrained) to injure or kill persons or animals by biting or otherwise savaging, attacking or harrying. That dogs, and particularly startled or otherwise provoked dogs, may bite is consistent with the everyday experience proverbially expressed as “let sleeping dogs lie” (an adage which no doubt can be applied to other creatures with the potential to do harm). If further confirmation is required that the reasonable woman taking proper care for her own safety does not place her face in close proximity to the teeth of even a familiar and usually well‑behaved dog, there is the decision in Neeson v Acheson [2008] NIQB 12, a case to which Mr Clarke drew our attention as the most nearly analogous to the present which his researches had revealed. There Morgan J (as he then was) sitting in the High Court of Northern Ireland said this:
“[9] I accept that the plaintiff was suffering from the effects of drink at the time of the incident. She was clearly able to walk home and indeed was apparently able to hunker down beside the dog. She had no reason to fear the dog with which she had been in contact virtually on a daily basis for a period of months. I consider, however, that her action in putting her face so close to the dog was foolish. It seems clear to me, however, that no one in the kitchen expected the dog to react in the way that it did and I have concluded that the primary cause of these injuries was the unexpected reaction of the dog. I consider it appropriate to make a reduction of one third on the basis of the plaintiff’s contributory negligence.”
[20] We accordingly have no difficulty in holding that the jury in the present case was fully entitled to find that the pursuer’s own negligence had contributed to her injury and that therefore any award of damages in her favour should be reduced.
[21] In the event that the court was against him on his primary argument in support of ground 1 and a finding of contributory negligence was open to the jury, Mr Clarke submitted that in assessing the portion of liability attributable to the pursuer was so flagrantly wrong that no reasonable jury would have arrived at that assessment.
[22] We disagree.
[23] Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides that where a person suffers damage as the result partly of his own fault, the damages recoverable shall be reduced to such extent as the court thinks “just and equitable having regard to the claimant’s share in the responsibility for the damage”. As was explained by Denning LJ (as he then was) in Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 326 (and see also the speech of Lord Reid in Stapley v Gypsum Mines [1953] AC 663), determination of what is just and equitable having regard to the claimant’s share of responsibility involves consideration both of the causative effect (“causative potency”, as Denning LJ put it) and the blameworthiness of the pursuer’s and the defender’s respective acts or omissions. Such moral blameworthiness or culpability is irrelevant to establishing liability on the part of the keeper of a dog but is relevant to the assessment of the reduction to be applied to damages in the event of a finding of contributory negligence. This may present a pursuer who is founding on strict liability but who is met by the partial defence with something of a forensic problem which, in the eyes of the jury, the pursuer in the present case would seem to have been unable to surmount. The issue is identified and discussed by (now) Professor John Blackie in his article, The Provoking Dogs Problem 2, Journal of the Law Society of Scotland, vol 38 (1993) 148 (which, as its title suggests, addresses the legal consequences of dogs being provoked to bite people or other animals). As Professor Blackie points out, a consequence of a claim being made on the basis of strict liability is that, on the evidence, there will be (or will appear to be) no moral blameworthiness on the part of the defending party, thereby, where the partial defence is made out, “increasing artificially the proportion of contributory negligence to be ascribed to the pursuer”. What we take Professor Blackie to have had in mind is that where liability is strict a defender may be found liable in damages without being guilty of any moral fault whatsoever, and therefore in a case where the pursuer is found to be some extent at fault that degree of fault, which may be small in absolute terms, will weigh heavily in relative terms because there is nothing by way of culpability on the other side of the balance. It might be said that the approach envisaged by Professor Blackie leaves out of account a common reason why strict liability is applied in relation to certain activities in the first place; it reflects a judgement that because of the inherently dangerous nature of the activity or for some other reason, the cost of any damage which results from the activity should be borne by the person carrying out the activity (here keeping a dog) even if that person is not at fault. However, a jury cannot be criticised for not having regard to that somewhat abstruse point where it was not put to them. Here it was not. Similarly, while before this court Mr Clarke blamed the defender for having allowed the dog to be present at a family party where drink was consumed, for having allowed the dog to be on the sofa alongside other guests, for taking no steps to warn anyone not to play with the dog, and for not controlling the dog so as to preclude any risk of it biting a guest, none of this was canvassed at trial. Rather, the focus of the presentation of the case to the jury was to say, as junior counsel for the pursuer, Mr Lloyd, did in opening, that the defender was “automatically liable to pay damages to the pursuer unless he establish the defence that the law allows”. The efforts of counsel were then to displace the defence of sole fault and the partial defence of contributory negligence by emphasising how unexpected it was that Dougal would bite anyone. As Mr Lloyd put it in his opening speech, “… the pursuer does not suggest that the dog was a bad dog, quite the reverse.” That was an accurate outline of the pursuer’s case both as developed in evidence and summarised in the course of Mr Clarke’s speech. This was an entirely rational trial strategy which would have been undermined by criticising the defender for not taking steps to obviate (the ex hypothesi non‑existent) risk associated with Dougal being in the room but once the pursuer’s account of how she came to be bitten was rejected and something closer to the version of events presented by the defender and his witnesses was accepted, the jury were in a situation of having to quantify relative contribution on the basis of evidence to the effect that almost all of the causative potency and all of the moral fault lay with the pursuer and only deemed fault lay with the defender. In his opening speech Mr Lloyd emphasised that “[the] dog is not on trial here.” In his charge, against which no criticism whatsoever is made, the trial judge explained that “sympathy for Dougal is neither here nor there …the defender is deemed to have been at fault. Not Dougal.” These were correct statements of law but the undisputed evidence of Dougal’s excellent character can only have diminished the weight to be attached to the defender’s deemed fault. The jury’s conclusion that responsibility for her injury lay almost entirely with the pursuer is not surprising. It is not a conclusion with which this court is entitled to interfere.
Ground 2: there was an inadequacy of damages
[24] In terms of section 29(1)(d) of the Court of Session Act 1988 a party who is dissatisfied with the verdict of the jury may apply for a new trial on the ground of excess or inadequacy of damages. Here the pursuer contends that the award of £5000 in respect of past and future solatium was inadequate.
[25] The principles to be applied in determining whether a new trial should be ordered on the ground of excess or inadequacy of damages are to be found in the speech of Lord Hope of Craighead, with whom the remaining members of the Judicial Committee agreed, in Girvan v Inverness Farmers Dairy 1998 SC (HL) 1. Girvan was a case in which the defenders were seeking a third jury trial on the ground of excess of damages but much of what Lord Hope has to say in what is an extensive discussion of the proper approach to the review of jury awards, relates to motions for a second jury trial and there can be no reason to distinguish between cases where what is in issue is the excess of the award and cases where what is in issue is the inadequacy of the award.
[26] Having first established the statutory background, Lord Hope considered the early decision of the whole court in Landell v Landell (1841) 3 D 819. Among the points that he took from that decision were that the expression “excess of damages” was not capable of any precise definition (the same can be said about “inadequacy of damages”) and that no mathematical formula was suggested as an alternative. Further, a very large margin indeed was to be allowed between what the jury had awarded and what the judges thought appropriate before the court would feel it right to interfere and take the risk of sending the case back for consideration by a fresh jury.
[27] Lord Hope then looked at more recent cases, from which he concluded that the proper approach to the question of whether an award of solatium has resulted in excess of damages remains that described in Landell (see Girvan supra at 16G). In the course of his review of the cases Lord Hope identified the “so-called working rule” to the effect that the court would not consider itself entitled to set aside a jury’s verdict on the ground of excessive damages unless it thought that the verdict ought not to have been for more than one half of the sum awarded (supra at 8E). Thus, the so‑called working rule to inadequacy of damages allows a 100 per cent margin over what the court would have awarded before a jury award can be regarded as excessive. Mutatis mutandis, we would take it that application of the same so-called working rule to inadequacy of damages would mean that a jury award would have to be less than one half of what the court would have awarded before it could be regarded as inadequate.
[28] As Lord Hope went on to explain, if a series of new trials was to be avoided, a fairly broad approach must be taken to the question of whether the jury have committed a gross injustice or reached a palpably wrong result. One way of doing that is for the court to consider the matter in two stages. Stage one was for the court to make its own assessment of the sum which it would be appropriate to award on a proper judicial assessment of the value of the claim. Stage two was to compare the judicial assessment with the jury award. It is at this stage, where what is under consideration is an award of solatium, that regard may be had to the so‑called working rule. Thus, the court might interfere if, but only if, the jury award was more than twice (or less than half of) a proper judicial assessment of the value of the claim. However (supra at 17G) in expanding upon the use to be made of the so‑called working rule, Lord Hope continued
“It cannot be treated, and was never intended to be treated, as a precise formula. It is no more than a rule of thumb, or a check, which the court may use as a guide to the decision in each case. It is really no more than a convenient way of describing the test laid down in Landell v Landell in order to illustrate the width of the approach. The court can use it or depart from it as it thinks fit. Two particular points however should be made. The first is that, in order to make sense of the rule in the light of current practice, the starting point for its application must be the figure, or the upper end of any range of figures, resulting from the judicial assessment.”
[29] Turning to the present case, in the pursuer’s note of argument the consequences of her injury and the relevant sources of evidence are summarised as follows:
“The pursuer was left with permanent scarring to her lip. It was a matter of agreement, in the Joint Minute, that she had undergone four operations, and the evidence was that each involved removal of facial tissue along the line of her wound and then the re-closing of the wound with sutures. The evidence of Mr Naasan, Consultant Plastic Surgeon, who gave evidence for the pursuer, was unchallenged in any cross-examination. Photographs were before the jury. The scar, whilst not disfiguring was plainly visible and will remain so even although more surgery is contemplated.”
We were not addressed in any detail on what might be a proper judicial assessment of the value of a claim in respect of such an injury. We took it to be common ground as between counsel that the award in favour of the pursuer was on the modest side. Ms Davie could hardly say otherwise, given that she had suggested to the jury a figure twice as much as the sum awarded. It was Mr Clarke’s submission that, notwithstanding what he had put to the jury, given the consequences of the pursuer’s injury a reasonable award from a judge would have been about £25,000. Ms Davie accepted that in evidence Mr Nassan had said that the pursuer would always have “quite a significant scar”. However she pointed out that the pursuer had indicated that she did not wish to go through further operations. The pursuer was not a young woman (she was aged 57 at the time of the jury trial). There was not a psychological component. According to Ms Davie an appropriate award was therefore of the order of £10,000. Insofar as parties offered justification for their respective figures it was, as had been the case at trial, by reference to the Judicial College Guidelines. The Guidelines divide facial scarring of females into five bands which are designated: “very severe”, “less severe”, “significant”, “less significant” and “trivial”. Mr Clarke’s suggested figure of £25,000 was to put the pursuer’s case either at the bottom of the band of less severe scarring which is described as “Where the disfigurement is still substantial and where there is a significant psychological reaction” or, alternatively, at the top of the significant scarring band which is described as “Where the worst effects have been or will be reduced by plastic surgery leaving some cosmetic disability and where the psychological reaction is not great or, having been considerable at the outset, has diminished to relatively minor proportions.” Ms Davie’s figure of £10,000 was to put the case towards the top of the band designated as less significant scarring (£3,190 to £11,110), described in the Guidelines as appropriate in cases where they may be “but one scar which can be camouflaged or, though there is a number of very small scars, the overall effect is to mar but not markedly to affect the appearance and the reaction is no more than that of an ordinarily sensitive young woman.” The reference to a young woman reflects the assumption made in the Guidelines that, generally speaking, scars will be of more significance to women than to men, and more significant to young women than to older women.
[30] Just what would amount to a proper judicial assessment of the value of the pursuer’s claim is not entirely easy to say on the information available to this court. The fact that the pursuer has opted to have four operations (and it is not said unreasonably) points to a not insignificant figure but, as the terms of the Guidelines underline, given the nature of the injury much depends on the intangibles relating to the effect on the pursuer’s personal appearance and her emotional response to that, as to which the jury was able to form a view and we are not, it being borne in mind that the pursuer is not a young woman and that she has not suffered any material psychological sequelae. We would accept that an award by a judge would likely to have been in excess of £10,000 but, that said, we consider a proper judicial assessment would be much closer to Ms Davie’s proposed figure than that put forward by Mr Clarke. We would reject any suggestion that this case fell within the Guidelines’ less severe scarring band. Rather, it seems to us to fall within the significant band but not towards the top of that band given the absence of adverse psychological reaction and the fact that the scar is not said to be disfiguring. That becomes more clearly the case if, as we would understand from Lord Hope in Girvan we should, we take as the starting point not the median figure for possible judicial awards but a figure at the bottom of that range (cf Girvan supra at 17G where Lord Hope in the context of an argument that the jury award was excessive points to the upper end of the range of judicial figures as being the relevant point of reference).
[31] On that view, we can accept that the jury’s award was not only modest but that it fell below 50 per cent of a proper judicial assessment, albeit not far below. Does that have the result that an application of the so-called working rule means that a new trial has to be ordered? In our opinion the answer to that is no. There is a further matter which we shall address, but for the moment confining ourselves to the approach outlined by Lord Hope which is to emphasise the very wide margin indeed that is to be allowed between what a jury has awarded and what judges might consider appropriate, we do not consider that we are entitled to interfere with this jury’s award. While we accept that, as an arithmetical fraction, the jury’s award in this case can be said to have fallen a little outside the leeway allowed by the so-called working rule, Lord Hope makes clear that the test laid down in Landell v Landell is not about applying any arithmetical formula. In quoting from the opinion of the majority in Landell, he includes this:
“It is clear that, in order to warrant the application of the term ‘excessive’, the damages must be held to exceed, not what the court might think enough, but even that latitude, which, in a question of amount so very vague, any set of reasonable men could be permitted to indulge. The excess must be such as to raise on the part of the court, the moral conviction that the jury, whether from wrong intention, or incapacity, or some mistake, have committed gross injustice, and have given higher damages than any jury of ordinary men fairly and without gross mistake exercising their functions, could have awarded.”
What is involved here is admittedly a shortfall from what a judge might be expected to have awarded but, given the nature of the injury, unpleasant as no doubt it was, what is in issue in the present case is a discrepancy of not very many thousands of pounds (which of course comes to be very much reduced when regard is had to the jury’s, in our opinion unchallengeable, finding in respect of contributory negligence). We simply do not see this case as one having given rise to the gross injustice which the test in Landell is intended to correct.
[32] There is, as we have mentioned, another matter which confirms us in our decision that this is not a case for a new trial. As narrated above the trial judge, with the agreement and prior assistance of the parties’ counsel, gave a direction of the appropriate range of figures for the solatium. The range he gave was between £10,000 and £40,000. It has occurred to us that further thought may have to be given as to how best to give a direction of the sort envisaged by Lord President Hamilton in his opinion in Hamilton v Ferguson Transport (Spean Bridge) Ltd. It may, for example, be that a range such as given in the present case is too wide or its precise purpose may not have been sufficiently explained. However, we would stress that no criticism whatsoever was made of the way in which the trial judge framed his direction in the present case. The jury followed his direction. True, their award of £5000 did not fall with the “spectrum” identified by the trial judge with the assistance of counsel, but the judge had explained to them that it was open to them to go outside that range. Where then is the “gross mistake exercising their functions” referred to in Landell? There is also the subordinate point that while the trial judge emphasised that quantification of solatium was a matter for the jury, with the agreement of counsel he had endorsed the “ranging figures” of £40,000 on the one hand and £10,000 on the other. If the so‑called working rule has role to play, it can be said that £5000 is not less than one-half of a figure which had the endorsement of the trial judge.
[33] We refuse the motion for a new trial. We continue the case on all questions of expenses.