Scottish Court of Session Decisions

[1] On 4 January 1996 the pursuer, then in his early 40s, was driving his motor car on the A9 road north of Inverness. As he approached the junction with a minor road a motor car driven by the defender emerged from that road and collided with the pursuer's vehicle. The defender subsequently pled guilty in respect of this incident to a contravention of section 3 of the Road Traffic Act 1988.

[2] In this action the pursuer seeks damages for loss, injury and damage allegedly sustained by him as a result of the defender's conduct. On 3 February 1999 the court, on the unopposed motion of the pursuer, granted summary decree to the effect of sustaining the pursuer's plea on liability and repelling the defender's pleas on that aspect of the case. The only matter remaining at issue is accordingly the amount of damages payable by the defender to the pursuer in respect of the consequences of this incident.

[3] The pursuer sustained, he avers, multiple injuries. He was, according to his averments, detained in hospital until 23 February 1996 and continued thereafter to suffer and still suffers from painful and disabling conditions as a result of the accident. He seeks reparation from the defender in respect of (1) solatium, (2) financial loss by reason of his inability or restricted ability to continue the building and construction business which he carried on in partnership with his wife, (3) services rendered to him by his wife and by his mother-in-law and (4) damage to items of property. The total sum sued for is £500,000.

[4] The defender's response to the pursuer's averments of loss, injury and damage is "The nature, extent and consequences of any loss, injury and damage sustained by the pursuer are not known and not admitted", followed by a general denial and by certain particular averments in support of the proposition that the sum sued for is excessive. These latter averments are mainly related to the pursuer's claim for financial loss but include averments that the pursuer had prior to the accident long-standing degenerative arthritic changes in his lower back and that certain injuries sustained by him are now in a stable condition - matters which may bear upon the assessment of his claim for solatium.

[5] The defender has, following amendment, a plea in the following terms:

At Procedure Roll the defender's counsel moved me to sustain that plea. Despite its formulation and the appearance on the face of the record of a general plea to the relevancy of the pursuer's averments, no issue of relevancy was raised before me and I understood the defender's counsel to be seeking an order for proof simpliciter. The pursuer's counsel moved me to allow issues.

[6] As will appear, the matter debated before me potentially has significant implications for the procedure of trial by jury in the Court of Session of claims for personal injuries, including personal injuries resulting in death. Although not so stated expressly, the present case can fairly be regarded as seeking to test the effect of the Human Rights Act 1998 ("the 1998 Act") on the continued availability of civil jury trial as a mode of inquiry in relation to any action which involves a disputed claim for solatium for personal injuries (or for loss of society for the death of a relative). The test character of this case is illustrated by the circumstance that the defender's submission that the case be withheld from jury trial was founded solely on the existence of the disputed claim for solatium, no reliance being put on the existence or features of any of the other claims.

[7] The defender's submission, which was presented by Miss Milligan and developed by Mr Jones, was that to send this case to trial by jury would be incompatible with the defender's right to a fair hearing as guaranteed under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It would be unlawful, it was argued, for this court, as a public authority within the meaning of section 6 of the 1998 Act, to send, incompatibly with the defender's right, this case to jury trial unless the court could not, as a result of primary legislation interpreted in the manner prescribed by section 3(1) of the Act, act in any other way. There were accordingly two questions to be addressed - (1) whether trial by jury would violate the defender's right and (2) if it would, whether the court was bound by primary legislation, in this case section 11 (as read with section 9(b)) of the Court of Session Act 1988 ("the 1988 Act"), to send the case to trial by jury.

[8] In support of an affirmative answer to question (1), six factors were urged. First, a defender approached a proof before a judge sitting alone with the legitimate expectation that the court's award of solatium would fall within parameters established by comparable awards. On the basis of that expectation a defender could protect himself in expenses by lodging a tender informed by advice on such parameters. By contrast, a jury under present practice was allowed to receive no guidance from the parties or from the presiding judge as to any comparable awards (whether by judges or by other juries). Thus, the defender and her advisers could not on any rational basis calculate an appropriate figure to tender. Second, because a defender was at a jury trial (in contrast to a proof) denied the opportunity of laying before the tribunal comparable cases and arguing that any award should be in line with them, the defender would, as a matter of comparative justice with other defenders, not receive a fair hearing. Third, a jury, in contrast to a judge, had no prior experience of determining the amount of solatium claims. In the present "liability" culture, a jury was likely to be informed by extraneous matters, such as awards in high profile defamation actions. Any guidance given to them by reference to the purchasing power of familiar items would be of no assistance. Fourth, a judge would give reasons for his award, a jury would give none. Fifth, a jury award could itself be grossly unfair. The now leading authority, Girvan v Inverness Farmers Dairy 1998 SC (HL) 1, had followed and applied Landell v Landell (1841) 3 D. 819 where it had been held that a jury award could not be regarded as excessive unless a reviewing court had the moral conviction that the jury had committed a "gross injustice". Even the "working rule" (of 100% divergence) referred to by Lord President Inglis in Young v Glasgow Tramway and Omnibus Co (Limited) (1882) 10 R. 242 was no longer a definitive check. The approach followed by Lord President Emslie in McGregor v Webster's Executors 1976 S.L.T. 29 had been disapproved in Girvan v Inverness Farmers Dairy. Reference was also made to McGinley v Pacitti 1950 S.C. 364. Sixth, the unfairness inherent in a jury trial was not capable of being remedied under the statutory provision for review (section 29 of the 1988 Act, as that statute and its statutory predecessor had been judicially and authoritatively interpreted). The circumstances in which a jury award could be set aside as being excessive were very limited and the only power available to the Inner House on such review was to order a new trial. Given these factors, it was manifest, it was argued, that the appointment to jury trial of the present action (which included a claim for solatium) would inevitably give rise to an infringement of the defender's guaranteed right to a fair hearing. In respect of European jurisprudence, especially on the requirement to give reasons, reference was made to Hadjianastassiou v Greece (1992) 16 E.H.R.R. 219, Hiro Balani v Spain (1994) 19 E.H.R.R. 566, Helle v Finland (1997) 26 E.H.R.R. 159, Bryan v United Kingdom (1995) 21 E.H.R.R. 342, Van de Hurk v The Netherlands (1994) 18 EHRR 481 and X v Federal Republic of Germany (1981) 8769/79 (a Commission decision). Stefan v General Medical Council [1999] 1 WLR 1293 was also of assistance. In England the Court of Appeal had, long since and having regard to the disadvantages in modern circumstances of civil jury trials in personal injury cases, held it to be not a proper exercise of discretion to appoint such a case to that mode of inquiry (Sims v William Howard & Son Ltd [1964] 2 Q.B. 409).

[9] In support of a negative answer to question (2) counsel for the defender submitted that, in approaching the construction of section 9(b) of the 1988 Act after the coming into force on 2 October 2000 of the 1998 Act, it was proper to disregard earlier judicial interpretations of that section or its statutory predecessor. It was accepted that there was an established body of authority to the effect that "special cause" must be a cause special to the particular circumstances (see, for example, Walker v Pitlochry Motor Co 1930 S.C. 565, per Lord President Clyde at p.575 and per Lord Blackburn at p.576). But such authority was not now binding since section 3 of the 1998 Act required as from 2 October 2000 the court, so far as possible, to read and to give effect to section 9 in a way which was compatible with Convention rights. "Special" cause (or reason) was capable of meaning one "exceptional in character, quality or degree" (Oxford English Dictionary (2^nd Ed.) sub.nom. "special"). It could mean "some real ground of substance making the case unsuitable for jury trial" (Graham v Paterson & Son 1938 S.C. 119, per LJC Aitchison at p.127). Untrammelled by authority and following the statutory injunction in section 3(1) of the 1998 Act, the court should have no difficulty in construing "special cause" in section 9 of the 1988 Act as meaning "substantial reason". By doing so it would be able to give effect to section 9 in a manner which was compatible with the defender's Convention right to a fair hearing, namely, by allowing a proof. It did not matter that in the vast majority of actions for personal injuries the same result would follow.

[10] If need be, the defender would press the court for a declaration of incompatibility under section 4 of the 1998 Act; but such a course was unnecessary if the court answered the two questions posed in the way urged by the defender.

[11] Mr Ivey for the pursuer submitted that it was impossible to read "special" in section 9 in the way contended for by the defender. That section had to be seen in the context of section 11 which enjoined that the listed classes of action (which included an action of damages for personal injuries) should be tried by jury. There was no logic in reading "special" in section 9 in a sense which would have the effect of inverting the statutory scheme by making jury trial the exception rather than the rule. However one read section 9 in the light of section 3 of the 1998 Act, "special cause" could not be constituted by any general consideration such as the alleged denial of a fair hearing by remitting a claim for solatium to trial by jury.

In any event, civil jury trial of such a claim was compatible with Convention rights. The defender's complaint was in substance that a jury award would be likely to be higher than that of a judge and that the review process did not allow the award to be brought back to a judicial level. But, in the field of assessment of solatium, which was a head of damages incapable of precision or of arithmetical calculation and which was entirely associated with the particular circumstances of the individual case, there was no reason why judicial awards should be accorded a higher status than jury awards. A jury would be directed by the presiding judge to make such an award as it thought moderate and reasonable but adequate having in view the particular circumstances of the case before it (Traynor's Executrix v Bairds & Scottish Steel 1957 S.C. 311, Lord Guthrie's charge at p.314). It would also be directed that an award of solatium was compensation for the pursuer's pain and suffering, not a form of punishment of the defender. A jury, although not having the resource of reference to comparable cases, had its numerical strength and its varied experience to allow it to provide a direct reflection of what would, in the eyes of an ordinary individual, be considered reasonable (Girvan v Inverness Farmers Dairy, per Lord Clyde at pps.24-5). There was a risk that, by adhering to the relatively narrow band within which judges operated, judges would become increasingly out of touch with awards made by juries in the proper exercise of their function (Currie v Kilmarnock and Loudoun District Council 1996 S.C. 55, per Lord President Hope at p.67). The jury was subject to its oath to try the issue according to the evidence and would be asked to consider the value of money with reference to the cost of purchasing familiar items, such as a house or a motor car. While the jury was not provided with information as to comparable awards, comparative justice was, within the scope of the broad discretion properly allowed to juries, provided by review under section 29 of excessive (and inadequate) awards. The obligation under European jurisprudence on courts to give reasons did not require a detailed answer to every point in issue (Ruiz Torija v Spain (1994) 19 E.H.R.R. 553). The jury's award had to be seen as its response to the evidence before it viewed in the context of the judge's charge. The test for reviewing a judge's award of solatium was whether it was or was not wholly unreasonable (Inglis v London Midland & Scottish Railway Co 1941 SC 551), a test not materially different from that for review of a jury award. Issues arising out of a civil jury trial had been considered by the Court of Human Rights in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442; there was no suggestion there that there was anything fundamentally wrong with jury awards. It was impossible to say, at least in advance, that a jury award of solatium in this case would constitute an infringement of the defender's rights under Article 6.

[12] The issue immediately before me is whether I should appoint this case for inquiry by proof or by jury trial. That turns on the statutory provisions presently regulating the mode by which certain classes of action fall to be tried. These provisions are contained in sections 9 and 11 of the 1988 Act. These, so far as material for present purposes, are as follows:

[13] These provisions have a statutory ancestry. After a long desuetude trial by jury in civil causes was reintroduced in Scotland by the Jury Trial (Scotland) Act 1815. A specific enumeration of actions directed to be tried by jury was first made by the Court of Session Act 1825. A qualification to that requirement was introduced by section 4 of the Evidence (Scotland) Act 1866 which provided that - "If both parties consent thereto, or if special cause be shown, it shall be competent" to allow a proof in place of a jury trial. These provisions were, with certain amendments, consolidated in the 1988 Act. The amendments included removal from the statutory list of a number of actions previously directed to be tried by jury. An action "of damages for personal injuries" remains a listed action. That description has been held, consistently with earlier law, to include an action of damages by a relative, within the meaning of the Damages (Scotland) Act 1976 (as amended), in respect of a death caused by personal injuries (Morris v Drysdale 1992 S.L.T. 186). In such an action a member of the deceased's immediate family may now claim a "loss of society" award under section 1 of the 1976 Act. That non-patrimonial award is different from but in some respect equivalent to an award of solatium in an action brought by or on behalf of an individual in respect of his own injuries.

[14] It has repeatedly been stated that "special cause" in this context means a cause special to the particular case, not some general consideration (Walker v Pitlochry Motor Co; Taylor v Dumbarton Tramways Co 1918 S.C. (H.L.) 96). Mr Jones accepted that, had the factors urged by him been presented to a Lord Ordinary prior to 2 October 2000, that Lord Ordinary would have been bound by authority then binding on him to reject any argument to the effect that they constituted "special cause" within the meaning of section 9 of the 1988 Act. He argued, however, that the coming into force of section 3 of the 1998 Act required the court to address section 9 untrammelled by prior judicial interpretation. The substance of his argument on this matter has earlier been narrated.

[15] I accept that the legal effect of Parliament's requirement that primary legislation (including pre-existing and previously interpreted primary legislation) be read and given effect to in a way which is compatible with Convention rights may in appropriate circumstances involve the need to adopt a completely fresh approach to such legislation. The requirement in section 3 is, moreover, a powerful one - as the conjunction of the expression "So far as it is possible to do so" and the word "must" indicate. On the other hand, a statutory provision cannot, by a purported exercise of interpretation, be deprived of all meaning and content. If the only tenable meaning of a provision of primary legislation is such that its operation in accordance with that meaning would give rise to an incompatibility with Convention rights, a situation may arise where the court is empowered to make a declaration of that incompatibility. But a true exercise in interpretation must first be undertaken.

[16] Section 11 of the 1988 Act is in mandatory terms - "the following actions if remitted to probation shall be tried by jury". That requirement is subject to the qualification contained in section 9 which empowers the court to allow a proof in a listed action if, but only if, the parties consent or special cause is shown. It is unnecessary to decide whether the existence of "special cause" (or of consent) should be regarded as a pre-condition to the exercise of the statutory discretion or as a limitation to that discretion. On either view content requires to be given to the concept of "special cause". This situation may be contrasted with that in England where the power to direct the mode of trial was not, at least latterly, circumscribed in this way (see Sims v William Howard & Son Ltd).

[17] It is possible to identify in general terms some types or classes of factor which, if applicable in the particular case, may constitute special cause. "Doubtful relevancy" and "difficult and delicate questions of mixed fact and law" are commonly recognised such types. But a factor which applies in every or in virtually every instance of the relative listed action cannot, in my view, constitute special cause. McFadyen v Crudens Ltd 1972 S.L.T. (N) 62 is illustrative of the application of this proposition. McAvoy v Young's Paraffin Co (Ltd) (1881) 9 R. 100, especially per Lord Young at p.102, is illustrative of it in a death case. "Special" must in some sense be the antithesis of what is usual or is common or is ordinary. Something cannot be exceptional (the key concept in the dictionary sense of "special" which Mr Jones urged on me) unless there is something to which it is an exception. In short, a universal characteristic cannot, without the total abuse of language, be special.

[18] Assuming for present purposes that the remit of this action to jury trial would and would inevitably, by reason of the factors urged by the defender, involve an infringement of her Convention right, that reason would, if a live issue, effectively exist in every case of an action of damages for personal injuries. Unless the amount of solatium is agreed or, exceptionally, no such head of damages is claimed, every action for personal injuries brought by or on behalf of an injured person will, on the assumption made, involve such an infringement. If the amount of solatium is agreed or no such claim is made, no question of infringement of the Convention right can arise. The same applies mutatis mutandis in loss of society claims in death cases. Though an action of damages for personal injuries might be figured where there was no issue about the quantum of solatium (or of loss of society) but an issue on some other aspect of the case (say, agreement on damages but a simple dispute on liability), such a situation is in practice so rare that it may properly be discounted.

[19] Accordingly, the ground advanced by the defender cannot, in my view, be special cause even when one strains the language of the 1988 Act to the extent required by section 3 of the 1998 Act. It follows that this court would not be acting unlawfully under section 6 of the 1998 Act by allowing issues since, no special cause having been shown and there being no consent to proof, it could not, by reason of the mandatory provision of section 11 of the 1988 Act, act differently.

[20] In these circumstances it is unnecessary for the purposes of the disposal of the defender's plea to reach a decision on whether such a remit would infringe the defender's Convention right. Mr Jones urged me, as part of my disposal of that plea, to reach and express a view on that issue. But I decline at this stage to do so. That issue raises difficult questions, close to the boundary between law and public policy, the answers to which may have wide implications. It is undesirable, in my view, that I should express obiter views on them.

[21] This may not, however, be the last word on the matter. Counsel for the defender indicated that, if I were not with them to the extent of sustaining the defender's plea that a proof be allowed, the defender would be minded to seek from the court a declaration of incompatibility under section 4 of the 1998 Act. The precise terms of any such proposed declaration were not framed in the course of the discussion. The indications were that it would be directed against section 9 of the 1988 Act, though I suspect that it is the compatibility of section 11 (at least in part) which might truly be in issue. If the defender is to seek in this process a declaration of incompatibility, the terms of the proposed declaration will require first to be framed with precision. I shall therefore appoint the defender within a specified time to lodge, if so advised, a minute setting out the terms of any declaration which she seeks. The case will also be put out By Order for discussion of further procedure.

[22] The question also arises of participation by relevant governmental authorities in this case. Under section 5(1) of the 1998 Act "Where a court is considering whether to make a declaration of incompatibility" the Crown is entitled to notice in accordance with rules of court. Rule 82.3(1) of the Rules of the Court of Session (as amended by the Act of Sederunt (Rules of the Court of Session Amendment No.6) (Human Rights Act 1998) 2000) made under, among other powers, section 5 of the 1998 Act provides that notice shall be given in the prescribed form "to such persons as the Lord President may from time to time direct". I understand that no specific direction has as yet been made under that rule. Mr Jones suggested that any intervention by the Crown (or other public authority) would be appropriate only if and when the court was satisfied that the provision of primary legislation in question was incompatible with Convention rights. But, at least in a matter involving such wide public interest considerations, it would, in my view, be highly undesirable that I should reach a concluded view on such a matter (far less that I should publicly express it) without first affording to the Crown an opportunity to make representations. If the defender proposes to pursue in this process a specific declaration of incompatibility, she having raised in argument considerations which cannot be dismissed as wholly without substance, the court will then be "considering whether to make a declaration of incompatibility" within the meaning of section 5(1) and notice to the Crown will be requisite.

[23] Any declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; nor is it binding on the parties to the proceedings in which it is made (1998 Act section 4(6)). This raises the question whether, even if the defender is to seek a declaration of incompatibility, the pursuer is nonetheless entitled to an immediate order for issues. This matter will also require to be addressed at the By Order hearing. Pending such discussion, I shall make no order in respect of the defender's plea.