Scottish Court of Session Decisions

By the accident which occurred on the defenders' railway he had both his ankles dislocated, and was for a time in the Infirmary, where he underwent an operation on one of his feet, and though it was anticipated that he would recover he died not directly from the effects of the accident, but according to the best medical opinion in consequence of having had chloroform administered to him to enable him to undergo the operation. It appears that the injuries he sustained and which made the operation necessary were directly the cause of considerable suffering, and were indirectly the cause of the pursuer's death. He died seven months after the accident, and his father as his executor thereupon became pursuer of the action which had been raised by the deceased a month before he died.

The case, then, is that of a lad in humble circumstances, earning small wages, and the jury had before them the fact that his injuries caused considerable suffering and a certain amount of outlay for maintenance and medical attendance, and that he died seven mouths after the accident. These were the circumstances before them which afforded the whole elements for enabling them to assess the damages.

The case is singular in respect of the action having been raised by the deceased, of his death during its dependence, and of its being taken up by an executor, and a full argument was submitted from the bar as to the principles to which a jury should give effect in such a case. I do not think that any general rule or principle can be safely laid down. All that I think can be said is that a jury in trying such questions—in assessing damages, which was the only duty they had here to perform—must have regard in each case to the special circumstances as these are proved in the evidence. In this case one of the special circumstances, and a material one, was the death of the young man, for it is obvious that this occurrence made it quite improper that they should resort to the means of measuring or estimating damages usual in such cases by considering how far the injuries complained of would be permanent, and so would diminish the power of the injured person to earn wages for it might be a period of years. To adopt such a mode of assessing damages in the case of a young man who had died shortly after raising the action would be absurd.

In cases of injuries from an accident the jury ought unquestionably in the ordinary case to take into consideration everything that can be ascertained as to the state of the injured person down to the day of the trial, so as to enable them to the best of their ability to estimate the prospects of recovery, whether a complete recovery may be expected, and at what time more or less remote. The light so obtained may seriously affect the amount to be assessed as damages either favourably or unfavourably to the defenders in such actions. If the facts proved as to the history of the case down to the last show that the recovery must be very tedious, and that even graver consequences may develop themselves than any that have yet appeared, so that the injured person may be for many years unable or be only partially able to earn the income which he might otherwise expect, the amount to be allowed will be all the larger. If the evidence be to an opposite effect the amount to be allowed will be so much the less.

In the present case the idea of years of future life and the necessity of providing for this is inapplicable to the circumstances. What was left for the jury to deal with? The expenses of medical attendance and maintenance of the lad for seven months, some compensation for suffering to the moment of death, and for solatium—a ground of damage for which it is very difficult, if indeed possible, to provide any measure or means of assessment. £50 or £70 would fully cover the item of expenses, and having regard to the age and position in life of the deceased, if £130 were added in respect of the suffering and solatium I should say a full measure of damages—being in all £200—would be allowed. The jury gave double that sum to the deceased's executor, and that I think extravagant and excessive in the circumstances of the case. I should therefore, had the decision rested with me, have given a new trial unless the pursuer agreed to restrict the verdict to £200.

It may be said that the deceased would never have accepted £130 for the suffering he had and for solatium, and that is true, but the same observation may be made with truth of ten times that sum, and therefore all that can be given by way of direction to a jury is that they must judge fairly and reasonably between the parties, knowing that money can never afford compensation for serious injuries and much suffering, and that they must show moderation and good sense in giving some compensation for what cannot be otherwise repaired.

It was maintained for the pursuer that if the deceased had not died, but had a prospect of the average length of life, the jury would have properly taken into view that for many years he would be lame to a certain extent, and in that case might fairly have allowed £400 to compensate him, amongst other matters, for the loss of income which might thereby be caused, and, if so, that a less sum ought not to be allowed because of his death within a short time of the accident. Even in that view I should have thought the damages excessive, and that £250 or £300 should have been the maximum. But I cannot assent to the argument that in the actual circumstances, and having regard to the death of the original pursuer, the sum may not properly be estimated at a smaller amount than it would have been in different circumstances, i.e., in the case of the deceased having survived, but lame to some extent for life. I think the only sound rule must be that the jury should look at the circumstances which are actually before them, and give effect to these, even if that effect be to reduce the amount for which a verdict is to be given below what it would have been had the deceased survived. It is to be noted that in this case the young man injured had no one dependent on him. Had the case been that of a husband and father with a wife and children wholly dependent on his exertions in business for the means of support, and assuming that the claim made originally by the husband would be exclusive of separate claims by his wife and children on account of his death, I should think that the fact of the resulting death being proved might greatly increase the amount of damage beyond what that would have been had the deceased husband and father survived and been able to earn an income.

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