Traditionally, damages awards made by juries have tended to be significantly larger than those made by a Judge. Over the last 18 months, there has been a series of very large jury awards in fatal injury cases which widened that gap even further.
In two of those cases, Hamilton v Ferguson Transport (Spean Bridge) Ltd and Thomson v Dennis Thomson Builders Ltd, applications were made to the Court by the Defenders for a retrial on the basis that the awards made by the juries were excessive.
The circumstances of the Hamilton case were that a heavily-laden trailer overturned on top of a car as it passed in the opposite direction, killing the female driver. Claims were raised by the woman’s husband and daughter, and they were awarded £80,000 and £120,000 respectively for distress and loss of society. Both of those awards, it was argued, were significantly higher than would have been expected had a Judge sitting alone been making the award.
Following consideration of the parties’ cases, a bench of 5 judges, led by the Lord President, opined that the time had come for juries to receive judicial guidance on the level of damages that should be awarded. It was unanimously agreed by all 5 judges that the most satisfactory way of doing so would be:-
- Both parties briefly should address the trial judge, in the absence of the jury, with their submissions on the appropriate level of damages.
- The trial judge should consider these submissions and thereafter suggests to the jury a range within which an award might lie.
The advantage of this approach is that it should bring a level of consistency to jury awards. With it brings forseeability to both parties which further assists in pre-litigation negotiations.
This is a significant judgement regarding the conduct of civil damages actions in Scotland. However, quite how this will affect the awards juries will make in claims remains to be seen. The re-trial of both the Hamilton and Thomson cases are awaited with interest, as are the first substantive decisions made following this decision.