26 May 2016
Civil jury update - Caroline Bridges v Alpha Insurance A/S. In the early hours of a Sunday morning, Caroline Bridges crossed the road in order to hail a taxi on the other side. In so doing she walked into the path of a private hire taxi without looking where she was going. She was under the influence of alcohol at the time, although she contended that the driver of the taxi was travelling at excessive speed. Her claim was disputed and ended up proceeding as a civil Jury Trial at the Court of Session. There are a couple of aspects of the trial and outcome that are worthy of comment.
Firstly, on the issue of liability, the jury found primary liability established against the insurer of the private hire taxi driver in respect of his collision with the Pursuer pedestrian. However they made a deduction of 85% for contributory negligence. This is a significant discount and a “red flag” to Pursuers that juries can be unsympathetic to those who have accidents whilst inebriated.
Also worthy of comment is the jury's apparent decision to award solatium right in the middle of the range provided to them by the judge. At the conclusion of evidence, the court heard submissions from counsel on the appropriate level of award for solatium. The judge then advised the jury that the range for solatium could be considered as being between £25,000 and £40,000. The remaining heads of damage had been agreed between parties at £6,900.
The exact reasons for the verdict will never be known but ultimately, taking contributory negligence into account, the pursuer was left with less than £6,000 in her hand and this must have been within the jury’s contemplation when reaching their decision. It should act as a reminder to insurers that the opinion of "the ordinary man or woman on the street" is the best assessment for the likely outcome of a jury trial and not the more legalistic approach which might be taken by a judge.
On a more technical, procedural point, following the charge by the judge to the jury in a trial, any party dissatisfied with the terms of the charge requires to formulate, immediately and in writing, the exception taken. This is essential in order to preserve that party's position should they wish to seek a new trial at a later stage on that basis.
The pursuer’s legal team did seek to tender a note of exception to the charge but did not do so immediately after the jury was charged. By the time it was tendered, the jury had been deliberating in private for over an hour. The judge held that the note was incompetent because (i) it had not been tendered immediately as required by court rules and (ii) the guidance on solatium to which exception was taken was not a "direction in law". That latter part of the judge’s decision would seem to accord with the Scottish appeal court's view that the guidance on solatium to be provided by the judge to the jury is just that - guidance. The jury is not bound by it, as they would be by directions on matters of law.
The issues arising in this case will serve as helpful guidance given the widening availability of jury trials in the new sheriff court system. It will also be interesting to see whether the pursuer goes to the appeal court in order to seek a new trial and what that court might make of the whole matter.
BTO’s personal injury teams have particular expertise in advising on the issues which can arise in civil jury trials.
If you require further information about this update, please do not hesitate to contact: insurance@bto.co.uk
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Calum Sweeney |