Scottish Court of Session Decisions

The only possible solution of the problem is that the sum awarded must be a substantial acknowledgment of the trouble and inconvenience in the one case and of the pain and grief in the other case, which the defender's action has caused, but must be strictly confined within a moderate range. The pursuer did not challenge the propriety of the conclusion to which the Court came in M'Kiernan's case to the effect that an award of £250, as solatium alone, for the death of a child six months old was, in the circumstances of that case, about twice as large as could reasonably be regarded as an adequate acknowledgment of the pain and grief which the accident caused to the child's parents. Moreover, it must be kept in view that the decision of the Court in that case constituted no new departure. In Horn v. North British Railway Company ( (1878), 5 R. 1055) the jury's award had to distinguish between solatium and damages in respect of the death of a young man of twenty-five who was assisting his father in business, and the award for solatium alone was £150. In Wallace v. West Calder Co-operative Society ( (1888) 15 R. 307) the jury awarded solatium and damages separately in respect of the death of a husband who was in trade as a builder in a small way; the award for solatium alone was £100. In Middlemas v. North British Railway Company ( (1893) 1 S.L.T. 12) the jury awarded £500 as solatium alone in respect of the death of a daughter six years of age, and the Court reduced it to £250 on the ground of excess. Stating the matter very generally I think the usual award for solatium only—both according to the verdicts of juries and according to the course of decisions in which verdicts have been upset as excessive—runs in the neighbourhood of one or two hundred pounds according to the circumstances, whatever be the age or position in life of the victim of the accident. I am not laying down any taxative limit for all awards in respect of solatium only, for each case must depend on its own circumstances, and the award made in one case cannot be used to fix an unsurpassable limit or to help in forming a proportional scale or standard by which the amount of a reasonable award can be artificially determined in another case. Uniformity and standardisation are alike impossible counsels of perfection in such a department as this. But awards for solatium only which are excessive in relation to the measure—rough and flexible as it is—which I have indicated above may easily be held to exceed what could be reasonably regarded as an adequate acknowledgment of the pain and grief which have been caused to the surviving relative who stands pursuer.

In the present case the child was about two years of age, and I think this by itself constitutes an important differentiation in the circumstances of the case from those in M'Kiernan's case. Nevertheless the verdict for £300 in this case is certainly excessive, and our attention was not called to any specialty which justified it. Having regard, however, to the working rule suggested by Lord President Inglis in Young v. Glasgow Tramway Company ( 10 R. 242), by which a verdict ought not to be interfered with unless it appears to be at least twice as large as can be regarded as a reasonable award, I think it is just possible in the circumstances of this case to allow this verdict to stand, and the pursuer is entitled to the benefit of the doubt in this matter. My opinion therefore is that a new trial ought not to be granted. But it is desirable that juries who are called on to award for solatium, especially when the claim is for solatium only, should be made aware of the limited character of the claim, and of the considerations which require them to regard strict moderation in fixing their award in respect of it.

Lord Skerrington—I agree with your Lordship. I may add that the application for a new trial comes with a bad grace from a party whose counsel, as we are informed, told the jury that he had nothing to say to them on the subject of damages, but that he left the matter entirely in their hands. It is, no doubt, difficult for a counsel who denies that his clients are in fault to argue as to the amount of the damages in the event of an adverse verdict, but the thing can be done tactfully, and in the circumstances of the present case the jury was entitled to such assistance as the defenders' counsel could afford them.

Lord Cullen—I think the award of the jury in this case was distinctly too high, but I accept the considerations referred to by your Lordship as justifying us in thinking that this verdict may be allowed to stand. I desire to agree with the general observations on the subject which your Lordship has made.

The Lord President intimated that Lord Ashmore concurred.

Lord Mackenzie was absent.