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Judges change rules on jury damages trials

13 June 2012

Better guidance as to the appropriate level of damages should in future be given to juries in civil damages cases, appeal judges in the Court of Session have ruled.

A five judge bench under the retiring Lord President, Lord Hamilton, made the ruling in allowing two appeals by defenders who claimed that jury awards of compensation for the death of a relative were excessive.

In one case, Kirsty Hamilton, an only child, was awarded £120,000 for the death of her mother in a road accident when Ms Hamilton was 17 and her mother, with whom she was said to have had a close relationship, 50. In the other, Dennis Thomson was awarded £90,000 for the death of his son James, then aged 26, in an accident on a building site. Mr Thomson senior was then 57.

Arguments in the case centred on the continuing disparity between jury awards and awards by judges, which was said to be disproportionately wide, giving rise to a risk of injustice between similar cases depending on the form of procedure.

Delivering the leading judgment, Lord Hamilton repeated a view he had expressed in an earlier case that the absence of directions about sums awarded in comparable cases was a "less than satisfactory aspect of civil jury trials", and it was time "to set a framework for civil juries against which they can address levels of damages".

He added that it was potentially misleading to set out in a statement for the jury the sum claimed, without guidance on the possible range of awards, when this was simply a ceiling on what the court might award.

Lord Hamilton said that "The objective must now be to seek to narrow that disparity [between jury and judicial awards] and to eliminate, in so far as practical, that lack of consistency. That can be done by three measures: first, by judges, sitting alone or in the Inner House, having significantly more regard to available jury awards (particularly where they demonstrate a pattern); secondly, by juries being given by the presiding judge fuller guidance than hitherto as to the level of damages which, consistently with other cases, might reasonably be awarded by them; and, thirdly, by appellate courts continuing to intervene, where necessary, on comparative justice grounds as envisaged under statute since 1815. This is a process which will take time and experience to mature."

He added that weight should be given to both types of awards in previous cases if sufficiently similar, and there were two recent judicial decisions that markedly undervalued the relative claims.

Ultimately as a matter of impression, he said, the awards in the present cases were excessive, even allowing a wide latitude.

Setting out what should take place in future, he commented: "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.

"These suggestions appear to me to be sensible."

The other judges, Lords Eassie, Clarke, Emslie and Brodie, delivered brief supporting opinions, though Lord Eassie suggested that there was "much to be said for allowing the details of the new practice to be fashioned by experience".

Click here to view the opinions.

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