Scottish Court of Session Decisions

Lord M'Laren—When this case was originally before your Lordships on a motion for a new trial on the grounds that the verdict was contrary to evidence, and that the damages awarded were excessive—and both questions were fully argued—your Lordships considered that the verdict should not be set aside on the first of these grounds, but granted a rule on the pursuer to show cause why a new trial should not be granted on the ground that the damages awarded were excessive. I need hardly say that in dealing with such a question this Court does not sit as a Court of review; the remedy of setting aside the verdict of a jury was introduced in order to avert a miscarriage of justice, and is only given in cases where the damages are so large that the jury must be held to have taken into account elements which they had no right to consider, or given a large sum without the consideration of the proper elements. The question is, whether the sum of £800 is objectionable on this ground; and if after consideration of the evidence and of the grounds on which the pursuer was entitled to decree, it can be held that the sum of £800 could be arrived at by argument and consideration, then the verdict should stand.

There are three elements to be considered in arriving at the amount of compensation which should be given in a case of this kind—firstly, compensation must be given for the expense the pursuer has been put to for medical attendance and lodging; secondly, compensation for suffering, whether temporary or permanent; and thirdly, compensation for loss of business, so far as this can be proved. I think that £100 is not an unreasonable sum to award as compensation for expenses incurred by the pursuer, looking to the fact that this lady was confined to her room for a period of six months, and was attended by doctors during the whole of that time, and that for half of that time she was lying motionless, requiring almost constant medical attendance. Then as to compensation for suffering, which no doubt was serious and painful—for there was a fracture of the thigh bone immediately below the hip joint, which is a most dangerous injury—we have evidence that for twelve months she suffered very much. There is, moreover, a prospect of permanent lameness, and that she will not be able to walk without the assistance of crutches or a stick. Now, even if the pursuer were independent and possessed of private means apart from her business, she would be entitled to damages for her present and prospective suffering, and in the circumstances of the case I should say £200 or £300—say £250. Lastly, as compensation for loss of business—the pursuer is the keeper of a retail shop, which it was stated had been carried on for thirty years, so that it was an established business which she might look on as giving her an income for life, and she puts the profits derived from the shop at £100 a-year, or £2 a-week, which could be laid by after deducting expenditure, which consisted in the cost of keeping herself and her mother, and which may be estimated at £1 per week in addition. If three years’ profits are allowed for loss of business, which would make this element amount to £450, that would make up the total amount to £800. This is a possible way of assessing the various elements which the jury were bound and entitled to consider, and thus they might arrive at the sum of £800 without looking at anything which they should not have regarded. I do not say that if I had been one of the jury I would have given so much, but I cannot say that, looking to the evidence and the various claims which have been made, the amount is so extravagant as to render it necessary to set aside the verdict. I therefore humbly state it to be my opinion that the motion for a new trial should be refused and the rule discharged.

Lord Mure—The damages which have been awarded in this case are certainly high, looking to the facts and to the position of the pursuer; but, as far as I can understand, it is proved by the evidence that the pursuer will be lame for life, and—which is a very strong circumstance in the case—the jury were unanimous in thinking that £800 was a proper sum to give. If I had been one of the jury perhaps I would not have given so much, but having regard to all that Lord M'Laren has said as to the various elements which must be taken into consideration in fixing the amount of damages, I am of opinion that although the damages are high they are not excessive, and therefore I concur in your Lordship's opinion that the verdict should not be altered.

Lord Shand—As your Lordships are agreed that this verdict should not be disturbed, it is perhaps of little consequence what view I take of the subject. However, I must say that I cannot agree with the opinion that the verdict should stand, and that because I think the amount of damages is plainly extravagant and excessive. The pursuer, who is about 45 years of age, is a person of humble circumstances having a small grocer's shop in the village of Neilston which is said to yield about £100 a-year. The injury which she has sustained is a fracture of the right thigh bone. This action was raised six months after the occurrence of the accident, and on the one side it is proved, not only that she has suffered great pain in the meantime, but that there is also undoubtedly a permanent injury to the right leg, which will always be shorter than the other, necessitating some addition to the boot. On the other hand, it is clear that, according to the medical evidence, it is expected that in eighteen months from the time of the accident she will have recovered sufficiently to resume business, and that in two years she will have recovered entirely. Now, while I quite agree that a verdict should not be disturbed unless the excess of damages is of a distinctly marked character—excessive

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