Some of the people I occasionally eat dinner with turn out to be Daily Mail readers. I know this because when it emerges that I am a personal injury lawyer, the bolder spirits amongst them cease to ask how it is that I can act for someone whom I know is guilty, and instead demand to know how I can be complicit in a Scroungers’ Charter which gives the undeserving million pound payouts and has put their insurance premiums through the roof.
My current after dinner stratagem is to ask them how much they would award someone who had suffered loss of sight in both eyes, and required to go through life in the condition of total blindness. Estimates tend to range between £1 million to £10 million, but never less than seven figures. Yet the current Judicial College Guidelines of £240,000 for total blindness tends to shut them up about a something-for-nothing society.
I thought of this recently when reading the Note of Lord Tyre in the case of Caroline Bridges v Alpha Insurance A/S  CSOH 114. The pursuer was injured in a car accident. After four days of evidence, counsel for both sides were required to address the judge (outwith the presence of the jury) on the range of damages which should be awarded.
The purser’s counsel suggested that the range should be double the Judicial College Guidelines for the injury suffered, bringing out a total figure in submission of £120,000. Defender’s counsel suggested that the top end of the range should be £28,000.
Lord Tyre declined to follow the advice that the award should be double the Judicial College range, and also refused to inform parties of his views on damages prior to the judicial address to the jury.
In his directions to the jury, there was the familiar formula that “damages are for you”, but that looking at previous judge and jury awards, the range should be between £25,000 to £40,000.
No Exception was taken to these directions at the time. The jury had then deliberated for an hour before pursuer’s counsel indicated that he wished to take a Note of Exception to the judicial charge on the level of damages. The Lord Ordinary refused to entertain a Note of Exception at this stage. It came too late. The jury had begun its deliberations. An interruption would be bound to be highly prejudicial.
On one view, this is simply a procedural decision and a reminder that the decision to take a Note of Exception must be made instantly. But it also illustrates the profound tension between the injection of the wisdom of the people (the jury) into the assessment of damages and, on the other hand, a political desire to keep damages within the kind of range which society and the insurance industry might think is manageable.
G. K. Chesterton, in his essay on trial by jury, puts it best. Some things are too important to be left to the legal professionals, inured as we are by years of exposure to the human misery which is our stock in trade:
“When it [society] wants a library catalogued or a solar system discovered or any trifle of that kind, it uses up its specialists. But when it wishes something done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity”.
- K. Chesterton, Twelve Men (1909)
It has long been recognised that judicial awards tend to become out of touch with the value of money. What we have at present in the Court of Session and the All-Scotland Personal Injury Court by way of jury trial is a bit of a muddle. Yet I know from my APIL experience that the jury system for damages, muddle or not, is the envy of our English colleagues. The judiciary will ensure that damages will not be allowed to let rip, USA-style, whereby juries are allowed to award what they really think. But at least in Scotland we have some infusion of the collective wisdom of the people, which will push awards to the top end of the spectrum, as opposed to being stuck with judge-made awards.
There are also practical considerations. Counsel are now expected at the end of each trial to address the judge in the absence of the jury, not simply on recent judicial awards, easily available through Westlaw, but also on recent jury awards. Such knowledge tends to be freely circulated in the Faculty of Advocates. If the claimant solicitor and solicitor/advocate bar is to be truly effective, we should be looking to find a way whereby all jury awards in the Court of Session and All-Scotland Personal Injury Court are widely promulgated.