Scottish Court of Session Decisions

William Lawson Thoms, farmer, Benvie, near Dundee, pursuer, brought an action against the Caledonian Railway Company, defenders, in which he sued for the sum of £5000 as damages for injuries received while travelling on the defenders' railway.

An issue having been allowed, the case was tried before the Lord President and a jury on 10th December 1912, when a verdict was returned for the pursuer awarding him £4000 damages.

On the motion of the defenders the Court on 28th January 1913 granted a rule to show cause why the verdict should not be set aside and a new trial granted in respect that the damages awarded were excessive, and on 7th March 1913 the case was heard on the rule.

The following narrative of the facts is taken from the opinion of Lord Johnston:—“The pursuer in this case met with an accident due to careless shunting at Invergowrie station of a couple of horse-boxes, in one of which he was seated in attendance on valuable horses belonging to him which were being conveyed to a show at Perth. The pursuer is a man of thirty-six, and when a boy he suffered from

Page: 499↓

tuberculous disease of the spine, which occasioned curvature of the spine in the lower dorsal region and the consequent ossification of three of the vertebrae, but from which he had completely recovered and become an exceptionally athletic, active, and hard-working man in his vocation of farming. unfortunately the blow which he received by being thrown back in his seat involved the spot in the spine where the stiffening from the old ailment existed, and re-started the tubercular condition, and in the course of a very few days it became manifest that his condition was serious. The Railway Company candidly admit liability, and the only question in dispute is the measure of damages. A jury has brought in a verdict for £4000 damages, and we are asked to set aside this verdict and order a new trial solely on the ground of excess of damages. The case presents features which are too. seldom met with in questions of compensation. On the unanimous and unqualified testimony of the very eminent surgeons examined on both sides the pursuer has presented his case without exaggeration in regard to his injuries, his suffering, or his present condition. It must be added that, as was to be expected from the character and position of the professional witnesses, there is no trace of exaggeration in the scientific evidence on either side. If I may respectfully say so, the perusal of the medical evidence leaves one with the satisfaction of feeling that the aim of the medical witnesses was not to advocate a cause but genuinely to assist the Court with the best opinion they could individually give. Moreover, in the matter of pecuniary loss sustained the evidence of the pursuer himself and of the accountants engaged on both sides is conspicuously fair and honest. But while it is eminently satisfactory to have a case so presented, it does not make it any the easier for the Court to determine whether a jury has been swayed beyond reason by their natural sympathies. The date of the accident was 5th August 1911. From 12th August 1911 to January 1912 the pursuer was kept in a recumbent position and did not leave his bed. From January to March 1912, as there was apparent improvement, he was allowed to be up for a time each day, and from March to May 1912 he was sent to Crieff Hydropathic for change. He was under the charge of Dr Dalgetty of Liff, his family doctor, in consultation with Professor M'Ewan of Dundee. But the apparent improvement of the early part of 1912 did not continue. He was accordingly in June 1912, on the advice of Professor M'Ewan and of Dr Chalmers Watson of Edinburgh, again obliged to resume the recumbent position. In November, satisfactory progress not being made, he was brought over to Edinburgh and placed in a nursing home, to be more immediately under Dr Chalmers Watson. The trial took place on 30th December 1912, and I need hardly say that the pursuer was not present. There is a consensus of the doctors on both sides that he must on returning home after a couple of months under Dr Chalmers Watson in Edinburgh, remain on his back for the whole of the current year 1913 if he is to be restored to health. The crucial question is, What are the prospects of such restoration? Dr Chalmers Watson thus describes the nature and result of the pursuer's former affection of the spine, and its relation to his present condition. The affection had presumably been of a tubercular nature—“When tubercular disease attacks the periosteum, which is the sheath round about the bone, two processes take place side by side, one breaking down and the other making up. The process of breaking down, which is the attacking of the tubercle, and the process of making up, go on side by side, and the whole question is which is to get the better in the long run? When you recover, however, and when nature has got the better, you do not get back your spine just entirely as you had it before, because nature cannot replace the original structure of the spine, but fills in a kind of cement or material which takes the place of the original vertebras, and takes the place of it, unfortunately, in a rigid form. Accordingly, the pursuer had a certain amount of displacement involving two or three of the vertebrae of his spine. When the blow took place on his back the effect of that was to lower the vitality at the point of impact of the blow, and the result was to give the tubercle its chance again. In a popular way, that is a recrudescence of a disease; it was the same thing which had broken out again, and got its chance just in consequence of the blow. That accurately describes the beginning of the trouble.” Sir Hector Cameron, who saw the pursuer at Crieff in the spring of 1912 and again in Edinburgh shortly before the trial, says that at the first examination he had a little difficulty “in determining what the exact state of matters was. The first idea that occurred to one was what one has seen before, and what one knows very well, namely, that a recrudescence had occurred. The disease is a disease due to germs, and these germs often go to sleep for a great many years, and the disease becomes rearoused, sometimes without any gross injury or without any knowledge of accident on the part of the individual; very readily, from a severe injury.… I think there is evidence now that tuberculons disease has been re-aroused, but at that time I did not feel sure of it.” The points of agreement between the doctors examined were—that the pursuer was an excellent subject and an excellent patient—a man in good general health, which was well maintained throughout the long confinement to bed, and of equable temper, who bore that confinement with exemplary patience; that there was no symptom of the spinal cord being affected; that what was affected was the bony matter of the vertebrae and the adjoining tissues, in which there was inflammation, causing pressure on, or otherwise affecting, the sensory and not

Page: 500↓

the motor nerves; and that absolute quiescence and open-air treatment for a long continuance, not less than a year, were essential to recovery. The points of difference between the doctors were that the pursuer's advisers found marked extension of the pain both downward and upward from the seat of the old affection, and from this and other symptoms deduced the conclusion that more vertebræ had been attacked, and consequently, though taking a hopeful, took a more doubtful view of ultimate recovery. While the doctors examined by the defenders were of opinion that the tubercular disease had not spread, accounting for a wide area of the pain in other ways, they took a decidedly hopeful view of recovery. I have read the medical evidence with great care, and I am glad to say that it has left on my mind the impression that the pursuer's prospect of recovery is very hopeful. But its certainty no one can predict. And that is, I think, the situation which the jury had to regard. I think that the position is well illustrated by the evidence of Sir Hector Cameron. Asked, near the beginning of his examination in-chief—“Were there any other features of the case from which, when you examined the pursuer in December, you could have been hopeful?” he replied, “Well, there are no symptoms that made me take a very hopeless view of his case.” Whereas at the end of his examination in chief, asked—“Accordingly, from your examination of the case do you think with good reasonable treatment and proper rest the case is one which ought to make a good and satisfactory recovery?” he replied, “That is consistent with all my experience. I don't think that there will be any such complications as have been suggested.” Now, I do not attribute to Sir Hector Cameron that, having given a very guarded opinion at first, he was led by the course taken by the examining counsel to throw off his guard and to commit himself to a broad and positive statement. As I read his evidence he will not commit himself at once to a general affirmance of recovery. But having given the data of his diagnosis, he concludes with a favourable prognosis. But it is a guarded opinion after all, and I think the jury were bound to regard the case as one the final result of which no reliable surgeon would predicate. And I think that they were bound to keep in view the unquestioned statement of Dr Chalmers Watson—“Even assuming that we take a hopeful view, and that the pursuer does make a recovery, he will never in my opinion be the same man that he was; the chances of a vigorous recovery are extremely remote.” The state of the evidence therefore leaves to the jury recovery to a satisfactory extent, hopeful but not assured, and the degree of recovery unlikely in the best event to amount to restoration. In performing their duty of assessing damages the jury had these data before them. The pursuer was tenant of the farm of Benvie on the estate of Gray, with the small additional farm in the neighbourhood called Graystanes. The area was 300 acres, and the rent, under a lease having still twelve years to run, £565. The land was good, and less than six miles from the centre of the town of Dundee. It was worked mainly as a dairy farm of forty cows, but otherwise for general cropping. This farm the pursuer personally carried on, superintending everything, and doing most of the important work himself. He was also a successful breeder and skilful breaker of Clydesdales. His average profit on this farm was put at £300, or even £350 a-year, and though we may not accept either figure, must, in any view, be admitted to he substantial. There was, then, in the first place an accepted expenditure in connection with medical treatment, from the date of the accident to the end of 1913, when that treatment was assumed to cease, of £420. There was also a realised loss during same period arising from the necessity of employing others to carry on the farm, which was reckoned at £597. I think that I should myself have estimated it at probably £100 less. But there was evidence, which it was quite open to the jury to accept, for the larger figure. These two sums together make £1017.”

Argued for the pursuer—The damages awarded were not excessive. To justify the Court in saying they were excessive it was necessary to show not merely that the sum awarded was in excess of what the Court would have awarded, but that it was in excess of what any set of reasonable men would have given— Landell v. Landell, March 6, 1841, 3 D, 819; Young v. Glasgow Tramway and Omnibus Company, Limited,November 29, 1882, 10 R. 242, 20 S.L.R. 169. In other words, the defenders must satisfy the Court that the verdict was perverse— Reid v. Morton, January 18, 1902, 4 F. 438, per Lord Kinnear at p. 441, 39 S.L.R. 313; Kinnear at p. 441, 39 S.L.R. 313; Casey v. United Collieries, Limited, 1907 S.C. 690, per Lord President at 692, Lord Pearson at 694, 44 S.L.R. 522. According to the medical evidence for both sides the pursuer would be laid up for another year. In that view the expenses of medical treatment already incurred, and which would be incurred in the future, would amount to about £420, while the loss, past and prospective, in carrying on the farm would amount to about £600, making in all about £1020. From the medical evidence the jury could reasonably take the view that the pursuer would never work again, and might reasonably estimate the damage under this head at £1500. As reparation for the pursuer's sufferings, especially looking to the possibility of future sufferings, the jury might reasonably allow £1000. The balance, amounting to about £300, was a reasonable sum to give as solatium. Assuming total disablement for life, the damages were on a lower scale than in M'Kechnie v. Henderson, February 12, 1858, 20 D. 551, where the Court awarded fifteen times the total yearly earnings. In Duthie v. Caledonian Railway Company, June 3, 1898, 25 R. 934, 35 S.L.R. 726, the Court awarded ten times

Page: 501↓

the total yearly earnings. In the present case £350 did not represent the pursuer's total income, as that amount was arrived at after paying insurance premiums amounting to £40, and after meeting the expenses of the house, which might reasonably be taken at £200 a-year. The pursuer's true income would therefore be about £600. Six times that sum with the addition of the £420 would exceed the sum awarded. It was not for the pursuer to justify the result at which the jury had arrived, but for the defenders to show that no reasonable jury could have given the sum awarded. It was impossible for the defenders to do this, looking to the fact that the jury had not only to estimate losses, but had to forecast the future course of the pursuer's illness. Reference was also made to Shields v. North British Railway Company, November 24, 1874, 2 R. 126, 12 S.L.R. 120.

Argued for the defenders—Evaluation of damages was no doubt a jury question, but the Court retained control. The question always was whether there was a reasonable proportion between the amount awarded and the loss sustained— Taff Vale Railway v. Jenkins, 1913 AC 1, per Lord Atkinson atp. 7. In Wallaces. West-Calder Co-operative Society, Limited, January 13, 1888, 15 R. 307, 25 S.L.R. 458, the Court held that £800 was about twice what should have been awarded for the death of a husband whose income was£150. The defenders admitted £420 for past and future medical treatment. The other heads of damage were (1) the depreciation of the pursuer's life as a business man, and (2) his sufferings. In regard to (1) the Court would not put the pursuer permanently in the position he occupied prior to the accident. For £3600 the pursuer could buy an annuity of £220 for life, which was better than a business income of £350. There was no case in which £3500 had been given where the pursuer's income was only £350.

At advising—