Girvan v Inverness Farmers Dairy and Another

A Scottish court may set aside a jury’s award of solatium as excessive only where it exceeds the broad latitude available to reasonable jurors and produces gross injustice or a palpably wrong result. The court may first assess the judicial range suggested by comparable awards. It must then allow for the jury’s distinct function when valuing pain, suffering and loss of amenity.

The former working rule of 100 per cent permissible error is only a rule of thumb. It may check the breadth of the permissible range, but is neither a formula nor applicable to arithmetically ascertainable patrimonial loss. When a third trial is sought on substantially the same evidence, earlier jury awards may inform whether another jury could reasonably repeat the challenged award.

The respondent, a sheep farmer and internationally successful clay-target shot, suffered a severely disabling elbow injury in a road accident. Liability was admitted, leaving only damages for determination. A first jury awarded £120,000 as solatium. The Second Division set that award aside as excessive and ordered a new trial: 1995 S.L.T. 735.

A second jury awarded £95,000 as solatium. The appellants sought another new trial under section 29(1) of the Court of Session Act 1988. The Extra Division, by a majority, refused that motion: 1996 S.L.T. 631. The central issue before the House was the proper standard for deciding whether a Scottish jury’s award of solatium was excessive and whether the second award satisfied that standard.

1. Appeal dismissed unanimously. Lord Hope of Craighead delivered the leading speech. Lords Browne-Wilkinson, Mackay of Clashfern and Slynn of Hadley expressly agreed with his reasons. Lord Clyde agreed with the outcome and the governing standard. The majority of the Extra Division had correctly refused a further new trial.
2. Per Lord Hope, the authoritative standard remained that stated in Landell v Landell (1841) 3 D 819. An award is excessive for the purposes of section 29 of the Court of Session Act 1988 only when it exceeds the latitude which reasonable jurors may exercise and produces gross injustice or a palpably wrong result. A court must take a broad approach because it cannot substitute its own assessment; its statutory remedy is another jury trial.
3. The court may use a two-stage method. It may first identify the relatively narrow range which a judge could properly award, taking account of comparable judicial and reliable jury awards. It must then compare that assessment with the jury’s award while recognising the wider permissible variation inherent in valuing pain, suffering and loss of amenity. The narrow second-stage margin used by the majority in McGregor v Webster’s Executors 1976 S.L.T. 29 should not be followed.
4. Per Lord Hope, the 100 per cent permissible-error rule remained available for solatium only as a rule of thumb illustrating the breadth of the Landell standard. It was not a mathematical formula. It had no application to patrimonial loss capable of reasonably precise calculation. If used, its starting point should be the judicial assessment or the upper end of the judicial range.
5. At the first stage, a jury award already set aside or still under challenge should be disregarded as a comparator. At the second stage, when considering whether a case should go to a third jury, the court may consider what the earlier juries awarded on substantially the same evidence. Those awards bear directly on whether another reasonable jury might repeat the challenged figure, although they are only one factor.
6. The loss of a sporting activity pursued successfully at international level was peculiarly suitable for jury valuation. Given that special loss and the two jury assessments, Lord Hope could not conclude that no other jury would award £95,000. Lord Clyde likewise found no reasonable basis for disturbing the Extra Division’s decision.

1. House of Lords: Dismissed the defenders’ appeal from 1996 S.L.T. 631 and upheld the refusal of a further new trial.
2. Extra Division of the Court of Session: By a majority, Lord Abernethy dissenting, refused the defenders’ motion for a new trial following the second jury’s award: 1996 S.L.T. 631.
3. Second jury trial: Awarded total damages of £165,530, including £95,000 as solatium.
4. Second Division of the Court of Session: Set aside the first jury’s verdict because the £120,000 solatium award was excessive and ordered a new trial: 1995 S.L.T. 735.
5. First jury trial: Awarded total damages of £193,080, including £120,000 as solatium.