The above scene, taken some years ago in Edinburgh’s Court of Session, portrays a normality that has been sadly lost to us in the legal world over the last month or so. It’s very unlikely that our two Advocates (the English equivalent would be Barristers) will be having face to face discussions for the foreseeable future.
Yes, we’re back to the ramifications of the Coronavirus (again) and lawyers, like so many other professionals, are now having to learn to rely on technology in order to deliver services to the public.
It should not have come as a great surprise, therefore, to see that Scotland’s most senior civil court has decided to proceed with a virtual appeal hearing in respect of a high profile defamation claim.
Last year, the well known Scottish independence (not to say controversial) blogger, Stuart Campbell was unhappy with the decision of a Sheriff in his defamation claim against Kezia Dugdale, the former Scottish Labour Party Leader (Campbell v Dugdale  SC EDIN 32).
Mr Campbell sought leave to appeal to the Inner House of the Court of Session – which was granted – but this was before the virus outbreak and life as we know it changing in ways that we could not have foreseen.
The old adage about justice delayed means justice denied is extremely appropriate to the times we are living in. Due to the viral outbreak, both civil and criminal proceedings in Scotland (as in so many other countries) have practically ground to a halt.
How do we deal with this?
Necessity is the mother of invention and a virtual Inner House has been created by the Scottish Courts and Tribunals Service (SCTS). Eric McQueen, SCTS Chief Executive, is confident that the three appeal judges, court staff and lawyers for both litigants will be able to work with these arrangements. Currently, this is a temporary arrangement and jury is still out as to whether virtual court hearings will become a permanent feature of the Scottish, legal landscape. The answer to this question will surely depend on how matters progress in this particular appeal.
Even our legislators in the Scottish and Westminster Parliaments are having to grapple with the opportunities (and disadvantages) that remote working represents. Yesterday, the first virtual session of the House of Commons took place at Westminster.
Strange times indeed, but needs must when the devil drives …
A link to the BBC News website about the virtual Inner House can be found below:
Recently, one of my students asked how judges determine the level of damages that the victim in a personal injury would receive. Was there a formula or did judges make a subjective decision?
I responded that it was the former answer and that there had to be a level of consistency and transparency displayed by judges when making these types of decisions.
The Damages (Scotland) Act 2011; the latest version of the Ogden Tables; judicial precedent; awards made by civil juries; and other relevant legislation will form a framework in which judges will operate to come to their decision in the matter of compensation.
The Ogden Tables deserve a special mention: these are compiled by actuaries using statistical calculations which assist lawyers and courts throughout the UK to assess the monetary value of personal injury and fatal accident claims.
A link to resources about the background to the Ogden Tables can be found below:
A case which I mentioned in one of my most recent blogs involved medical negligence. In George Andrews v Greater Glasgow Health Board  CSOH 31, Lord Pentland very helpfully lays out in great detail the levels of compensation awarded to the pursuer and the rationale for these. In that case, the pursuer raised an action because his partner had died as a result of a failure by a junior doctor to admit her to hospital when she was chronically ill and had a history of very serious health issues.
It’s quite instructive to see how a judge arrives at deciding the level of compensation to be awarded to successful pursuers.
In George Andrews v Greater Glasgow Health Board , Lord Pentland awarded a sum of approximately £187,614 to the pursuer. This can be broken down as follows:
In the first instance, £2,922.44 was awarded for the pain and suffering (solatium) caused to the deceased partner of the pursuer due to the failure to admit her to hospital.
Lord Pentland made the following observations:
“A number of cases were cited to me; they included: Gallagher v SC Cheadle Hume Limited  CSOH 103, Bellingham v Todd 2011 SLT 1124, McGhee v RJK Building Services Limited 2013 SLT 428 and Manson and others v Henry Robb Limited 2017 SLT 1173. As well as these judicial awards, reference was made to some jury awards. [my emphasis] Having regard to the guidance provided by these cases, to the deceased’s life expectancy of 7.5 years, and to the pursuer’s evidence, I consider that an appropriate figure for damages under section 4(3)(b) of the 2011 Act is £75,000.”
Section 4(3)(b) of the Damages (Scotland) Act 2011 provides that the damages payable to the relative of a deceased person (“A”) should be:
b) such sum, if any, as the court thinks just by way of compensation for all or any of the following –
(i) distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death, (ii) grief and sorrow of the relative caused by A’s death, (iii) the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.”
Lord Pentland also awarded the pursuer damages for loss of support. In the case under discussion, the pursuer had lost his partner (whom he had lived with for 20 years before her death) as a result of medical negligence.
Section 4(3)(a) of the 2011 Act addresses this issue:
such sum as will compensate for any loss of support which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of A’s death together with any reasonable expenses incurred by the relative in connection with A’s funeral,
This figure took into consideration the following matters:
“He has no family or children to console him. The pursuer misses the deceased greatly and has had substantial difficulty in adjusting to her death. He has had to sell the house they lived in and can no longer enjoy Christmas and going on holiday. Subparagraph (iii) covers matters such as the inability to share holidays, to pursue mutual interests and to go out socially together. …
… On the basis of a life expectancy of 7.5 years for the deceased, damages for loss of support in terms of section 4(3)(a) of the 2011 Act were agreed in the sum of £65,620, exclusive of interest. I shall allow interest on £55,000 at 4 per cent per annum from 8 January 2013 until the date of decree.”
In terms of Section 9 of the Administration of Justice Act 1982 , a successful pursuer can claim for ‘services’. As Lord Pentland identified in his judgement this might a monetary calculation to include the value of the following matters:
“… the deceased [the pursuer’s partner] did all the ironing and the dusting; the parties shared the cooking. It seems reasonable to proceed on the footing that the deceased would have prepared around half of the parties’ evening meals and that she would have spent several hours a week ironing and dusting. On that basis, I shall allow 3 hours per week at £7.00 per hour for the personal services rendered by the deceased to the pursuer at the time of her death. This brings out a multiplicand of £1,092 per year.”
It is usual practice for the calculation of the value of services to include the pursuer’s past and future losses.
Interest (usually at the statutory rate of 8%) normally accrues on an award of damages, but parts of the award (as in the present case) may have different rates applied.
A breakdown of Lord Pentland’s calculations in respect of damages plus interest (over and above the element for solatium) can be found below:
A link to Lord Pentland’s Opinion can be found below (paragraphs 170 to 185 of the judgement are particularly relevant):
I have been thinking about the duty of care today – partly because I’m now teaching the Law of Delict (or Tort) to several groups of students and, partly, because of a story which has just been reported in the British media.
The story in question involved the tragic death of 15 year old Nora Anne Quoirin at a holiday resort in Malaysia in 2019. Nora, who had learning difficulties, wandered away from her parents’ accommodation at the resort and her body was found 10 days later in the jungle.
Nora’s parents are now suing the resort for breach of its duty of care to their daughter. They are alleging that the resort owners were negligent in that they failed to take basic safety measures which contributed to their daughter’s death.
Normally, 15 year olds would be expected to appreciate that certain behaviours or conduct on their part could put themselves in harm’s way, but Nora’s parents are arguing that she was particularly vulnerable because of health issues that she had suffered from early childhood. In other words, Nora may not have appreciated the full extent of the risk that she was undertaking when she left her room on that fateful evening.
A link to the story as reported in The Guardian can be found below:
Negligence is harm caused unintentionally and is, by far and away, the most likely type of delictual action that the Scottish courts will have to deal with.
Negligence claims arise because the defender owes what is known as a duty of care to the pursuer and, unfortunately, a breach of this duty occurs and, as a result, the defender suffers loss, injury or damage.
The leading case for negligence claims is Donoghue v Stevenson  UKHL 100 – or the snail in the opaque ginger beer bottle as many generations of law students remember it.
Delicts which are committed unintentionally by the defender resulting in loss, injury or damage to the pursuer are the most common type of civil wrong. In these situations, the defender is said to have been negligent or careless. The law, therefore, imposes a duty on each of us not to cause harm to others. Each of us has interests which the law protects, for example, the right to personal security and the right to enjoy a good reputation.
Donoghue v Stevenson  was not the first case of its kind to be brought before the Scottish courts. That particular honour must go to Mullen v A G Barr & Co Ltd SC 461 where the pursuer attempted to bring a compensation claim in a situation where dead mice were found in ginger beer bottles by the Mullen siblings. Unfortunately, for the Mullen children, the Court of Session dismissed their claim that there was no legal relationship i.e. between them and the ginger beer manufacturer. The importance of the Donoghue decision was that it would overrule the limitations imposed by Mullen and it would establish that a duty of care could arise between the manufacturer (Stevenson) and the ultimate consumer (Mrs Donoghue).
In order to succeed when bringing a negligence claim before the courts, the pursuer must show that the defender owes a duty of care, that the defender was in a position to cause harm and that the defender failed to prevent this foreseeable kind of harm from occurring. Additionally, the pursuer must show that the defender’s breach of duty was the effective (or proximate) cause of the loss or harm suffered by her.
Lord Atkin who gave the leading speech in Donoghue v Stevenson  went to great pains to stress a concept which has since become known as the neighbourhood principle:
The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply, ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.
The defender does not owe a duty of care to the whole wide world, but only to those individuals whom the defender, if he were a reasonable person, would realise that his actions might cause them to suffer loss, injury or damage. Basically, the defender should have realised that his actions or failure to act will result in certain negative consequences being suffered by the pursuer.
This was a point forcefully driven home in the famous decision of Bourhill v Young AC 92, where it was held that a deceased motorcyclist (John Young) owed absolutely no duty of care to a bystander (Mrs Bourhill) who came up Edinburgh’s Colinton Road to view the aftermath of the accident which had been caused by the motorcyclist’s dangerous behaviour. The bystander was not within the contemplation of the motorcyclist. Put simply, she was not someone whom he should have realised might be endangered by his dangerous and negligent actions. In fact, she was in no danger at all from John Young’s actions (until she placed herself in danger by going up the road to gaze upon the aftermath of the accident).
Similarly, this was a point also raised in the more recent case of Weddle v Glasgow City Council  SC EDIN 42 where the pursuer’s claim for damages for psychiatric injuries was dismissed by the All Scotland Sheriff Personal Injury Court. Danielle Weddle was not someone that the driver of the vehicle (which caused death and destruction in Glasgow City Centre in December 2014) should have contemplated might be harmed by his breach of duty i.e. driving the City Council’s bin lorry whilst medically unfit to do so.
In Donoghue v Stevenson , Lord Atkin deliberately drew upon the Christian parable of the Good Samaritan when he formulated the neighbourhood principle. For those unfamiliar with the parable, the Jewish man (who had been attacked and robbed by brigands and left for dead on the road to Jericho) was rescued by a Samaritan (an individual who belonged to a group detested by the Jews for their failure to adhere to the more rigorous rules of Judaism). Before the Samaritan came down the road, a Priest and a Levite stumbled upon the aftermath of the robbery, both decided not to intervene and passed by on the other side of the road.
Lord Diplock, sitting in the House of Lords, famously stated in Dorset Yacht Co. Ltd v Home Office  UKHL 2 that despite the questionable morality of their decision not to help the injured man, the Priest and the Levite would have incurred absolutely no civil liability in English law for their actions and, indeed, in Scotland the position would have been exactly the same.
Lord Atkin’s statement is initially misleading in that he deliberately subverted the language of the Christian Gospels by referring to your neighbour. When Jesus Christ was asked the question by the lawyer (in Luke’s Gospel where the Parable of the Good Samaritan is to be found): ‘Lord, who is my neighbour?’ the fairly daunting reply that the lawyer received is that ‘Everyone is your neighbour’.
To lawyers, however, the above question receives a much more restricted answer. The defender does not owe a duty of care to the whole wide world, but only to those individuals whom the defender, if s/he were a reasonable person, would realise that their actions might cause others to suffer loss, injury or damage. Basically, the defender should have realised that their actions or failure to act will result in certain negative consequences being suffered by the victim.
It will be interesting to see how the legal action brought by Nora Quoirin’s parents against the owners of the Malaysian holiday resort progresses.
What if criminal law lets down victims (and by extension their families)? Over the past year, several of my Blogs have looked at situations where the Crown Office and Procurator Fiscal Service have either not succeeded in prosecuting a suspect in a criminal case or have declined to do so.
In Scotland, the ability to bring a private prosecution is heavily restricted making it almost an impossible task to obtain the necessary authorisation from the High Court of Justiciary (via a Bill of Criminal Letters).
Victims (or their families) will often then have little choice but to turn civil law for some sort of resolution – usually an action for compensation.
I often emphasise to students that criminal and civil law have very different objectives: criminal law is used by the State to punish those individuals who would threaten the safety or security of the community by their actions; civil law, in this context, is primarily concerned with compensating the victims of a wrongful act.
Admittedly, certain types of conduct can be both criminal and civil in nature e.g. assault, dangerous driving, fraud and theft. This means that an individual could face the prospect of two trials. The outcome of each trial is independent of each other.
It is also worth remembering that criminal and civil law have different standards of proof. In a criminal trial, the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime; in civil law, the claimant (or pursuer) must show on the balance of probabilities that the respondent (defender) was responsible for the harm caused. The civil standard of proof is therefore a lower standard of proof.
So, it was of some interest that, in the last week, two stories were widely reported in the media which highlighted the difference between the two systems.
In the first story, it was established that John Downey, a former member of the Irish Republican Army, bore responsibility for the deaths of four members of the Household Cavalry (two British Army regiments) in July 1982. An IRA active service unit had planted a car bomb in London which had caused these fatalities. Downey was a member of that unit, but he had immunity from criminal prosecution under the terms of the Belfast (or Good Friday) Agreement 1998. The families of the victims had no alternative but to raise a civil legal action in the English High Court in order to establish that Downey was an active participant in the planning and execution of the bombing. The success of this action means that the families can now pursue Downey for damages (see Sarah Jane Young v John Anthony Downey  EWHC 3508 (QB)).
It is important to stress that this judgement establishes Downey’s civil liability for the deaths of the four serving members of the British armed forces; it does not establish criminal liability.
A link to the judgement of the English High Court can be found below:
The second story is from further afield and involves a female, Japanese journalist (Shiori Ito) who successfully sued a male TV journalist (Noriyuki Yamaguchi) who had raped her. This case broke many taboos in Japan because victims of rape tend not to publicise their ordeal. Again, the decision of Tokyo’s District Court establishes Yamaguchi’s civil liability for rape – not criminal liability.
In Scotland, of course, we have had two recent civil actions whereby victims of rape have successfully pursued their attackers for the right to receive compensation. It might not be the ideal solution, but in the absence of any action on the part of the State prosecution authorities, it may be the only recourse to justice that the victims have.
Links to media articles about the two cases can be found below: