18 August 2015
Margaret Ferguson v Ian Ferguson, [2015] CSIH 15. The Opinion in this case, issued on Friday 14 August 2015, is the most recent example of the approach taken by the Inner House (Appeal Court) on the circumstances in which the Court will set aside the verdict of a Jury.
Please click here to view the full Opinion.
The Pursuer advanced a strict liability case against the dog’s keeper (her brother-in-law), under s.1 of the Animals (Scotland) Act 1987. He maintained that the injuries were wholly, if not partially caused by the Pursuer’s own negligence by putting her face close to the dogs, who had just woken up and grabbing his cheeks/whiskers. This startled the dog, who then bit her. The case was heard by a Jury. Both liability and quantum were in dispute. The Jury found that the owner of the dog was strictly liable but they also found that the Pursuer was 85% to blame.
On the question of quantum, the jury were only asked to determine solatium. The range put to them was £10,000 - £40,000. The Judge’s direction was that the level of damages was for them to determine. The range was simply that, a range. It was not binding. The Jury awarded £4,000 for past and £1,000 for future solatium. The net award once contributory negligence was applied, was £907.50.
The Pursuer sought to set aside the Jury’s verdict and fix a new Trial on the basis that:
1. The Jury’s verdict on contributory negligence was not open to it on the facts and,
2. The award of £5,000 represented an inadequacy of damages.
The Court refused the motion on both grounds. The Court held that the Jury was entitled to find the Pursuer 85% to blame given the evidence that the Pursuer had behaved in a provocative manner. In determining the level of contributory negligence, the Jury was entitled to consider the Pursuer’s “moral blameworthiness or culpability”, even if such considerations were irrelevant to the finding of strict liability on the Defender. The Court’s finding highlights the wide latitude given to a Jury’s interpretation of the evidence and demonstrates that the Appeal Court will be slow to interfere with a Jury’s verdict. The case also highlights the unpredictability of Juries and may serve as a reminder of the potential pitfalls for a Pursuer when electing to have his/her case heard by Jury.
In refusing the second ground, the Court held that the working rule remains that the Appeal Court will only interfere with a Jury’s award as being excessive/inadequate where the Jury has awarded less than half, or more than double, what the Court would have awarded. The rule is not prescriptive however, and the Court recognised that a very wide margin is given to a Jury’s award before the Inner House would interfere. The Court held that a Judge may have awarded in excess of £10,000 and whilst the sum awarded by the Jury fell slightly out with the so called “working rule”, this was not sufficient for the Court to set aside the verdict. The key point was whether there had been a gross injustice. In the Court’s view, there had not.
The difficulty practitioners and the Court face is that precisely what and how judicial directions are to be given to a Jury remain unclear. The guidance has not been developed or refined in any other reported case and no Practice Note has been issued by the Court. It seems that the Courts are attempting to put into practice the Lord President’s guidance, set out by the Inner House in Hamilton v Ferguson Transport (Spean Bridge) Ltd, 2012, SC 486. In Ferguson, the Judge acknowledged this when he said that the Court and Counsel were ‘feeling their way’. The Inner House dealt with the narrow issue of whether the so called “working rule” had been breached. It did not go onto develop any guidance on directions that ought to be given to a Jury, what form these should take, procedurally how this should be done or what guidance on the range of awards should be given. The Inner House could have used the opportunity provided to it in Ferguson to clarify these issues. Regrettably it did not do so and the only comment offered was that further thought may have to be given as to how best to give a direction of the sort envisaged by the Lord President in Hamilton.
In our view, the issue of how best to direct a Jury post-Hamilton remains a work in progress and it may take further reported cases or directions from the Lord President in the form of a Practice Note before the Court establishes clear guidance on this point. Otherwise, there is a risk that practitioners and the Court continue to engage in an exercise of, as Counsel for the Pursuer put it in Ferguson, “making it up as we go along” – which is hardly a satisfactory state of affairs when litigating in the highest Court in the land in 2015.
If you require further information about this update, please do not hesitate to contact:
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Mark Hastings |