Ward v. James (No. 2)
 1 Q. B. 273;  2 W. L. R. 455;  1 All E. R. 563;
[1962 W. No. 197. ]
[The full text of this report is reproduced here for the purpose of academic and political debate, particularly regarding the future of the jury in the American and Canadian constitutional law, inasmuch as the transcription of the court proceeding is essential in understanding the judgment as handed down. United States users see 17 U.S.C §107; Canadian users see Copyright Act 50-year duration and fair dealing exceptions]
SOLICITORS:: Wm. Charles Crocker;
JUDGES: Lord Denning M. R. , Sellers, Pearson, Davies and Diplock L. JJ.
DATES: 1964 Dec. 7, 8, 9. 1965 Jan. 25.
SUBSEQUENT HISTORY: Administration of Justice (Miscellaneous Provisions) Act, 1933 (23 & 24 Geo. 5, c. 36), s. 6 — R. S. C. , Ord. 36, r. 1 (3) repealed by Supreme Court Act 1981, s. 152(4), Sch. 7.
Sellers and Russell L. JJ.
1964 Nov. 10.
[FN1] In the spring of 1962 the plaintiff, a passenger in a motor car, sustained such grave injuries when the car overturned that he became a permanent quadriplegic. He brought an action for damages for personal injuries against the defendant, the driver of the car, alleging that the accident was caused by his negligence. The defendant denied negligence and did not admit the damage. On a summons for directions, the master, on the application of the plaintiff, ordered trial by jury and on July 30, 1963, the judge in chambers, exercising his discretion under R. S. C. , Ord. 36, r. 1 (3) [FN2] [*274] (made pursuant to section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933) [FN3] affirmed the masters order and dismissed the defendants appeal. The defendant acquiesced in the judges order for some 12 months. He then applied for leave to appeal but the judge on October 26, 1964, refused leave.
FN1 R. S. C. , Ord. 3, r. 5: (1) The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings . . . (4) In this rule references to the court shall be construed as including references to the Court of Appeal.
FN2 Ord. 36, r. 1: (1) In every action commenced by writ of summons, an order made on the summons for directions shall deter mine the place and mode of the trial, and, where the trial is to be before a judge, shall determine whether the trial is to be with or without a jury; but any such order may be varied by a subsequent order of the court or a judge made at or before the trial (3) Save as provided by rule 2 of this Order, and rule 13 of Order 77, the discretion of the court or judge in making or varying any order under this rule is an absolute one. R. 2: (1) The discretion referred to in paragraph (3) of rule 1 of this Order is, as respects actions to be tried in the Queens Bench Division, subject to the provisions of section 6 of the Administration of Justice Act, 1933, but applications for juries under that section . . . must be made before the place and mode of the trial is fixed under the said rule 1.
FN3 Administration of Justice (Miscellaneous Provisions) Act, 1933, s. 6: (1) Subject as hereinafter provided, if, on the application of any party to an action to be tried in the [Queens] Bench Division of the High Court made not later than such time before the trial as may be limited by rules of court, the court or a judge is satisfied that (a) a charge of fraud against that party; or (b) a claim in respect of libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, is in issue, the action shall be ordered to be tried with a jury unless the court or judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any scientific or local investment which cannot conveniently be made with a jury; but, save as aforesaid, any action to be tried in that Division may, in the discretion of the court or a judge, be ordered to be tried either with or without a jury;
The defendant by motion sought (1) an extension of time for leave to appeal (2) leave to appeal and (3) a reversal of the judges order. He justified the delay on the ground, inter alia, that the appeal could not have succeeded as the law stood at the date of the judges order, but that since that date subsequent decisions of the Court of Appeal, in particular, Sims v. William Howard & Son Ltd.  2 Q. B. 409;  2 W. L. R. 794;  1 All E. R. 918, had decided that personal injuries cases should now be tried by a judge alone, save in exceptional circumstances, and that the gravity of the injuries sustained by a plaintiff did not amount to exceptional circumstances warranting trial by jury. The court enlarged the time for appealing and have leave to appeal (post, p. 279C) but, having regard to the decisions in Hope v. Great Western Railway Co.  2 K. B. 130; 53 T. L. R. 399;  1 All E. R. 625, C. A. and Sims v. William Howard & Son Ltd. (supra) adjourned the hearing of the appeal to a full court in order to obtain the views of that court on the question of trial by jury in personal injuries cases.
Held, that, in the present case, the judge had exercised his discretion in the light of the considerations then current and had not the assistance given in the subsequent case of Sims v. William Howard & Son Ltd. (supra) and, further, that the defendant had acquiesced in the mode of trial for many months and had not sought [*275] to change it until just before the case was to come for trial. In these circumstances the court would not interfere with the judges order, particularly as, for the reasons given (post, p. 303F-G), the court would not feel the same hesitation as it formerly did in upsetting the jurys award if they should go seriously wrong.On the general question:–
(1) That whenever a statute conferred a discretion on the court or a judge, the Court of Appeal had jurisdiction to review the exercise of that discretion (save only as to costs) and to intervene if the judge was wrong, and no rule could diminish the jurisdiction of the Court of Appeal so given by statute; that, therefore, although under section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933, the mode of trial was in the discretion of the court or a judge, the discretion of the judge in chambers was neither absolute nor incapable of review by the Court of Appeal; and that, in so far as R. S. C. , Ord. 36, r. 1, had added to and thereby altered section 6 by the use of the word absolute which did not appear in the section, it was ultra vires (post, pp. 292D 293A).
Hope v. Great Western Railway Co.  2 K. B. 130; 53 T. L. R. 399;  1 All E. R. 625, C. A. explained. Ormerod v. Todmorden Joint Stock Mill Co. Ltd. (1882) 8 Q. B. D. 664, C. A. and Charles Osenton & Co. Ltd. v. Johnson  A. C. 130; 57 T. L. R. 515;  2 All E. R. 245, H. L. (E. ) applied.
(2) That although the courts must not fetter a discretion given by statute by rigid rules from which a judge was never at liberty to depart, in order to ensure that similar decisions were given in similar cases (including the mode of trial), they could give guidance by laying down the considerations to be borne in mind in exercising that discretion and by pointing out the considerations which should be ignored (post, pp. 293G 294A, 295D-E).Sims v. William Howard & Son Ltd.  2 Q. B. 409;  2 W. L. R. 794;  1 All E. R. 918, C. A. ; Rex v. Wilkes (1770) 4 Burrow 2527, H. L. ; Sharpe v. Wakefield  A. C. 173, H. L. ; Evans v. Bartlam  A. C. 473; 53 T. L. R. 689;  2 All E. R. 646, H. L. and Blunt v. Blunt  A. C. 517; 59 T. L. R. 315;  2 All E. R. 76, H. L. (E. ) applied.
(3) That in cases of personal injuries it was a most material consideration for the judge to bear in mind when ordering trial by jury that an award of damages in such cases was basically a conventional figure derived from experience and from awards in comparable cases which the judge was allowed to know but the jury was not, with the result that it was not possible in jury trials to achieve uniformity in like cases (post, p. 303D-E); that the court could not sanction any departure from the present practice in jury trials (post, p. 303C); and that therefore, even when the issue of liability was one fit to be tried by a jury, the judge might think fit to order that damages be assessed by a judge alone (post, p. 303).
Hennell v. Ranaboldo  1 W. L. R. 1391;  3 All E. R. 684, C. A. ; Bird v. Cocking & Son Ltd.  2 T. L. R. 1260;  W. N. 5, C. A. [*276]; Every v. Miles, unreported, 1964 E. No. 261, C. A. ; Benham v. Gambling  A. C. 157; 57 T. L. R. 177;  1 All E. R. 7, H. L. (E. ); Morey v. Woodfield (No. 2)  1 W. L. R. 16;  3 All E. R. 533, C. A. and Warren v. King  1 W. L. R. 1;  3 All E. R. 521, C. A. considered. (4) That in future cases the Court of Appeal would set aside an award of damages by a jury if it was out of all proportion to the circumstances of the case (either much too high or much too low); moreover, there being no longer a right to trial by jury in personal injury cases, the mode of trial being a matter of discretion, the court, on setting an award aside, would either, in the exercise of its power under R. S. C. , Ord. 58, r. 9 (3), [FN4] on granting a retrial, order that it be held before a judge alone, or, with consent, substitute its own award for that of the jury under R. S. C. , Ord. 58, r. 10 (4) (post, p. 301D-E).
FN4 Ord. 58, r. 9: (3) The Court of Appeal shall have power to give inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require. R. 10: (4) In any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate, the court may, in lieu of ordering a new trial, (A) With the Consent of All Parties Concerned, Substitute for the Sum Awarded by the Jury Such Sum As Appears to the Court to be Proper.
Decision of Roskill J. affirmed.
Applications for extension of time for appeal and for leave to appeal.
Interlocutory appeal from Roskill J. in chambers.
On May 20, 1962, the plaintiff, Warrant Officer Thomas Robertson Duguid Ward, a passenger in a motor car driven by the defendant, Sergeant Brynley John James, while travelling from Lüneburg to Drogeniendorf, was seriously injured when the car overturned. As a result he was now a permanent quadriplegic. He issued a writ claiming damages against the defendant, alleging that the accident was due to the defendants negligent driving. The defendant denied negligence and did not admit the damage. On a summons for directions, an application was made on the plaintiffs behalf that the trial should be with a jury. That was opposed by the defendant, but on July 23, 1963, Master Lawrence ordered that the trial of the action should be before a judge and jury. The defendant appealed to the judge in chambers, asking that the order of the master be set aside and the action transferred to the non-jury list. On July 30, 1963, Roskill J. , in the exercise of his discretion under R. S. C. , Ord. 36, r. 1, affirmed the masters order and dismissed the appeal. The defendant did not apply to the judge for leave to appeal at the time that the [*277] order was affirmed or within the time provided by the rules. He applied to the judge for leave some 12 months later, but the matter did not come before the judge until October 26, 1964, on which date leave was refused. The defendant by motion asked the Court of Appeal (1) to enlarge the time for appealing against the order, (2) for leave to appeal, and (3) for a reversal of the order. He justified the delay in applying for leave to appeal on the grounds (1) that on July 30, 1963, when the judge affirmed the masters order, it would have been unlikely that the defendant would have succeeded in an appeal as the law then stood, but that since that date three decisions of the Court of Appeal had been reported between December, 1963, and May, 1964, namely, Hennell v. Ranaboldo, [FN5] Sims v. William Howard & Son Ltd. [FN6] and Watts v. Manning, [FN7] which had effected a change in the law; and that the effect of those decisions was that now personal injuries actions should be tried by a judge alone save in exceptional cases, and that the gravity of a plaintiffs injuries did not amount to an exceptional circumstance warranting trial by judge and jury. (2) That since March, 1964, negotiations had taken place between the parties and (3) that although they had applied to the judge for leave to appeal immediately after the action was set down in July, 1964, they had not been able to appear before Roskill J. until October 26, 1964.
FN5  1 W. L. B. 1391;  3 All E. R. 684, C. A.
FN6  2 Q. B. 409;  2 W. L. R. 794;  1 All E. R. 918, C. A.
FN7  1 W. L. R. 623;  2 All E. R. 267, C. A.
The following cases, in addition to those referred to in the judgment, were cited in argument: Morey v. Woodfield (No. 2) [FN8]; Warren v. King. [FN9]
FN8  1 W. L. R. 16;  3 All E. R. 533, C. A.
FN9  1 W. L. R. 1;  3 All E. R. 521, C. A.
SELLERS L. J.
FN10  1 W. L. R. 1391;  3 All E. R. 684, C. A.
Then on February 17, 1964, there was Sims v. William Howard & Son Ltd. [FN11] That came into the reports on April 10, 1964. That is again a case of personal injuries arising out of a road accident, where the injuries were very severe. It was held there by a Division of this Court that it is not now a correct exercise of discretion to award a jury because the injuries are very grave: the severity of injuries does not amount to an exceptional circumstance which had been stated in the Hennell case [FN12] to be a requirement before a jury should be ordered.
FN11  2 Q. B. 409;  2 W. L. R. 794;  1 All E. R. 918, C. A.
FN12  1 W. L. R. 1391.The third case, on March 17 of this year, Watts v. Manning, [FN13] came into the reports in May, 1964. That carried the matter still further.
FN13  1 W. L. B. 623;  2 All E. R. 267, C. A.
I do not propose to review those authorities now, but it is said that they are in conflict with a decision of this court in Hope v. Great Western Railway Co. , [FN14] going back a number of years. That case was a decision of a full court, and this particular problem has not been reconsidered by a full court since that date. In those circumstances the defendant has asked that the order of the judge should be reviewed and reversed by this court.
FN14  2 K. B. 130; 53 T. L. R. 399;  1 All E. R. 625, C. A.
The first question is whether he is so out of time and that in such circumstances this court should not accede to that request. It appears that there are explanations as to why the very long delay has ensued. It might be said that not until March or April, after the decision of Sims v. William Howard & Son Ltd. , [FN15] would there have been much prospect of succeeding on an appeal and that the defendant was justified in doing nothing. I recognise that a mere alteration in the law may not be sufficient ground for extending the time. But the authorities cited to us were all cases of a final judgment and are not so apt and not so applicable to an interlocutory appeal of this character, particularly when the form of the trial is in issue and the action is still some way from reaching trial. But after March or April, when perhaps the delay could be explained by little hope of success on an appeal, there was a situation when negotiations were taking place between the parties, the action had not been set down, and in those circumstances [*279] I think there is some excuse for the defendant not taking any further step. By July last the plaintiff had set down the action, and thereupon, it appears, the defendant wished to take the view of this court as to whether a jury was an appropriate tribunal. He had not, as it happened, asked Roskill J. in July, 1963, for leave to appeal and so application had to be made to him for his acceptance or refusal. Apparently, although there seemed in the circumstances a not inadequate explanation for the delay, the defendant did not get before Roskill J. until October 26 of this year, when the judge refused leave. After that, the present motion was pursued with despatch.
FN15  2 Q. B. 409.
In all the circumstances, we have come to the conclusion that the time should be enlarged for appealing and, having regard to the issue, and the situation with regard to the conflicting decisions in this court, there should be leave to appeal. With regard to the last and major matter, that the order of the judge should be reversed, we have come to the conclusion that the appeal should be considered by a full court. I have consulted Lord Denning M. R. and he has approved of such a course; and there is every indication that the Master of the Rolls will be able to assemble a full court for the hearing of this matter within the next few weeks. In those circumstances this court will adjourn to that full court the application for the final hearing of the appeal on the question whether the judge was right or wrong in awarding a jury in this case.
The costs of this application will, of course, be adjourned to the full hearing.
Before the court came to this conclusion, having regard to the gravity of the injuries to the plaintiff and the position in which he is, it received an undertaking from counsel on behalf of the defendant that the defendant would be satisfied with any decision to which the full court comes on the hearing of this appeal and would not proceed further to the House of Lords. We regard that as imperative, I think, in the interests of the plaintiff, and it is on that basis that we have arrived at the conclusion which we have.
Costs adjourned to full hearing.
The appeal was heard by the full court on December 7, 8 and 9, 1964.
H. Tudor Evans Q. C. and Roy Beldam for the defendant. The question is whether this is a suitable case to be tried by a [*280] jury. Roskill J. , in deciding that it was, was moved primarily by the gravity of the injuries suffered by the plaintiff. It is not a proper exercise of the judges discretion within R. S. C. , Ord. 36, r. 1, to order trial by Jury in a case of personal injuries unless there are exceptional circumstances, and the gravity of the injuries suffered is not such an exceptional circumstance: see Hennell v. Ranaboldo [FN16]; Sims v. William Howard & Son Ltd. [FN17] and Watts v. Manning. [FN18] The reasons for the unsuitability of jury trial in these cases are as follows: (1) a jury has no experience of assessing damages in serious cases. (2) It is not possible, owing to the mode of trial, to obtain uniformity in awards of damages. (3) Uniformity of awards is desirable in order that justice may be done as between plaintiff and plaintiff and defendant and defendant. (4) In jury trials no reference can be made to awards in like cases. (5) Difficulty arises on appeal in opposing an award of a jury. (6) Jury trials are expensive because if an appeal succeeds the appellate court cannot alter the jurys award but must order a new trial. (7) The practice in respect of a large number of these cases has changed since this question was last considered by a full court in Hope v. Great Western Railway Co. [FN19] in 1937. There has been a vast increase in the number of personal injuries cases which come before the court. In such cases jury trial has fallen substantially into disuse. The great majority are now tried by a judge alone. The three recent decisions show the modern practice as to the appropriate method of trial in cases of this kind.
FN16  1 W. L. R. 1391;  3 All E. R. 684, C. A.
FN17  2 Q. B. 409;  2 W. L. R. 794;  1 All E. R. 918, C. A.
FN18  1 W. L. R. 623;  2 All E. R. 267, C. A.
FN19  2 K. B. 130; 53 T. L. R. 399;  1 All E. R. 625, C. A.
In Hennell v. Ranaboldo, [FN20] which was an ordinary case of personal injury in a running down action where a judge had ordered trial by jury, this court, although stating that the judges discretion in ordering the mode of trial under R. S. C. , Ord. 36, r. 1, was absolute, substituted its own discretion and reversed the judges order for trial by jury on the ground that there had been a misdirection. Reliance is placed on the observations of Lord Denning M. R. [FN21] and Diplock L. J. [FN22] that in order to achieve uniformity in these cases they should be tried by a judge alone except in very exceptional circumstances. Sims v. William Howard & Son Ltd. [FN23] extended the obiter in Hennells case [FN24] and [*281] decided that the gravity of the injuries was no longer a special circumstance justifying a jury and that where a jury had been ordered on that ground, this court could substitute its discretion for that of the judge. Watts v. Manning [FN25] expressly applied the principle laid down in Sims case. [FN26]
FN20  1 W. L. R. 1391.
FN21 Ibid. 1392.
FN22 Ibid. 1393-1394.
FN23  2 Q. B. 409.
FN24  1 W. L. R. 1391.
FN25  1 W. L. R. 623.
FN26  2 Q. B. 409.
[SELLERS L. J. The observation of Pearson L. J. in Sims v. William Howard & Son Ltd. [FN27] is directly contrary to the decision in Hopes case. [FN28] ]
FN27 Ibid. 419.
FN28  2 K. B. 130.
It is submitted that if there is a conflict between the two authorities, the later case should be preferred.
As to uniformity, the purpose of the rule of law is to achieve uniformity. Uniformity does not mean standardisation, but compliance with a general pattern based on comparable cases That can only be achieved by citation of authorities showing awards in comparable cases. Juries cannot be referred to authorities. Formerly authorities on damages could not be cited to the court and were not available, but since 1947 such awards have been published in Current Law and collected and published in Kemp and Kemp on Damages, 1st ed. (1954). Since 1951, when Singleton L. J. based his judgment in Bird v. Cocking & Son Ltd. [FN29] on two similar cases cited to him; the practice of citing authorities to this court has grown: see Rushton v. National Coal Board [FN30] and Wilson v. Pilley. [FN31] In Jag Singh v. Toong Fong Omnibus Co. Ltd. [FN32] the Privy Council reduced an award of £15,000 because it was so much out of accord with the discernable pattern of awards. That is exactly the principle which this court has recognised in Hennell v. Ranaboldo [FN33]; Sims v. William Howard & Son Ltd. [FN34] and Watts v. Manning. [FN35]
FN29  2 T. L. R. 1260;  W. N. 5, C. A.
FN30  1 Q. B. 495;  1 W. L. R. 292;  1 All E. R. 314, C. A.
FN31  1 W. L. R. 1138;  3 All E. R. 525, C. A.
FN32  1 W. L. R. 1382;  3 All E. R. 925, P. C.
FN33  1 W. L. R. 1391.
FN34  2 Q. B. 409.
FN35  1 W. L. R. 623.
[LORD DENNING M. R. Is there any authority which decides that authorities on damages cannot be cited to a jury?]
[Reference was made to Waldon v. War Office. [FN36] ] It is submitted that on the issue of general damages, when they are entirely at large, the practice of not mentioning sums of damages is bound up with the constitutional position of the jury.
FN36  1 W. L. R. 51;  1 All E. R. 108, C. A.
The cases show that it is very difficult for this court to set [*282] aside an award of damages by a jury: see Every v. Miles [FN37]; Morey v. Woodfield (No. 2) [FN38]; Bocock v. Enfield Rolling Mills Ltd. [FN39] and Scott v. Musial. [FN40] In all those cases this court held that it could not interfere with awards of juries although it clearly wished to do so. In Warren v. King [FN41] this court was able to interfere because there had been a misdirection. This court can only interfere with a jurys award if it is out of all proportion to the circumstances of the case or the jury has come to a decision at which no reasonable jury could have arrived: see Mechanical General Inventions v. Austin, [FN42] per Lord Wright. [FN43] Out of all proportion to the circumstances of the case means in effect a miscarriage of justice: Davies v. Powell Duffryn Associated Collieries Ltd. [FN44] In that case Lord Wright contrasted the attitude of this court to appeals from decisions of judges alone and appeals from judge and jury. The function of the Court of Appeal is quite different in relation to an appeal from judge and jury to that in relation to an appeal from a judge alone. In the former case, the appeal is not a rehearing. All the appellate court does is to exercise a supervisory function. If it does set aside a jurys award it cannot substitute its own award. It must order a retrial. It is possible that it can alter the mode of trial in the exercise of its discretion under R. S. C. , Ord. 36, r. 1, but under that order it must exercise its discretion on a judicial basis. It might not be a judicial exercise of discretion for the court to say to a successful appellant: You were unfortunate in your jury; we will see what a judge alone can do. It is submitted that the purpose of that part of Ord. 36, r. 1, is to make it possible for the order as to mode of trial to be varied if facts emerge between the summons for directions and the trial which make jury trial unsuitable.
FN37 Unreported. 1964, E, No. 261, C. A.
FN38  1 W. L. R. 16;  3 All E. R. 516, C. A.
FN39  1 W. L. R. 1303;  3 All E. R. 94, C. A.
FN40  2 Q. B. 429;  3 W. L. R. 437;  3 All E. R. 193, C. A.
FN41  1 W. L. R. 1;  3 All E. R. 521, C. A.
FN42  A. C. 346, H. L. (E. ).
FN43 Ibid. 377.
FN44  A. C. 601; 58 T. L. R. 240;  1 All E. R. 657, H. L. (E. ).
[DIPLOCK L. J. Can this court not order a new trial without a jury under R. S. C. , Ord. 58, r. 9, sub-rules (6) and (10); Gipps v. Gipps and Hume. [FN45] ]
FN45 (1864) 11 H. L. C. 1 H. L.
Whether the court can do so or not, there must be trial, either by a judge and jury or by a judge alone.
[*283] Decisions in other legal systems where a jury in these cases is obligatory, for example, New South Wales, show the difficulties which arise from the jurys lack of experience. In Hateley v. Allport [FN46] the New South Wales Court of Appeal considered the principles on which damages should be assessed. In Krycki v. Nominal Defendant [FN47] the Court of Appeal considered whether it was proper for a judge to suggest a specific sum by way of damages to a jury. There was a division of opinion there. There appears to be no authority which gives a reasoned judgment why that practice should not be followed.
FN46  S. R. , N. S. W. 17.
FN47  S. R. , N. S. W. 552.
As to the suitability of jury trials, these cases are quite different from criminal trials where a jury is compulsory except where otherwise provided by statute. In criminal trials, the only question is the innocence or guilt of the accused. The function of the judges summing up is quite different because questions of the onus of proof arise. In a trial of an action for damages for personal injuries, the amount of the award is constitutionally entirely a matter for the jury. [Reference was made to Bushells case. [FN48] ] It it well established that a judge may not influence the decision of a jury because so to do would be to trespass on their function and to usurp their authority and by indicating a specific sum or even a bracket within which damages should be awarded the judge would be expressing his own view on the value of the claim before the jury. If such an expression of view were expected to be acted upon, it would have the effect of influencing the mind of the jury, and if it were not expected to be acted upon it would be otiose.
FN48 (1670) 6 St. Tr. 999.
[SELLERS L. J. All this arises because you are seeking uniformity, but the test for the jury has always been: what is reasonable?]
Uniformity only means conformity with a reasonable standard of damages. The purpose of citing authorities is merely a guide to achieve that end: see Bird v. Cocking & Son Ltd. , per Birkett L. J. [FN49] The need for conformity with a pattern has increased since 1937 when Hopes case [FN50] was decided. There has been a great increase in these cases since the Factories Act, 1937, and the abolition of the Workmens Compensation Acts in 1948. The abolition of the doctrine of common employment helped to open the floodgates of personal injuries actions. So too did the development of the law of negligence by Wilson and Clyde Coal Co. v. [*284] English. [FN51] There has been a vast increase of motor traffic on the roads since 1937. In those circumstances, jury trial is no longer a suitable mode of trial to deal with these cases.
FN49  2 T. L. R. 1260, 1263.
FN50  2 K. B. 130.
FN51  A. C. 57; 53 T. L. R. 944;  3 All E. R. 628, H. L.
[PEARSON L. J. To say that a jury trial is not a suitable mode of trial in a large class of cases where it has hitherto been available is a matter of great constitutional importance. Could the position not be met by altering the rule and giving the Court of Appeal power to put things right?]
Even if the rule be changed to give the Court of Appeal the same power on appeal from a jury as it has on appeal from a judge alone, that would still not remove the difficulties inherent in the system. Juries will still make erratic awards and parties will still appeal. It is very difficult both in law and practice to devise a method by which trial by jury can be made suitable in these cases. If a mode of trial is unsuitable it ought not to exist.
As to Hopes case, [FN52] it is submitted that there is no real conflict between that case and the three recent cases, but if there is, the court may choose which authority it is to follow: Young v. Bristol Aeroplane Co. [FN53] This court should prefer the recent cases, because the great change in social conditions since Hopes case [FN54] justifies a reconsideration of the whole principle. If the court feels itself bound by Hopes case [FN55] to hold that the discretion of the judge is unfettered and absolute it can still lay down maxims for the guidance of judges in the exercise of their discretion: Evans v. Bartlam. [FN56] As to the exceptional cases of personal injuries which are suitable for jury trial, those are difficult to define, but they can only be cases which, in their true essence, depend on a preference for the testimony of one witness as opposed to that of another, and which are not trammelled by this difficulty as to damages. The principles in Hennell v. Ranaboldo, [FN57] Sims v. William Howard & Son Ltd. [FN58] and Watts v. Manning [FN59] should be applied in this case which is not in any way exceptional. Cases of quadriplegia are not uncommon. This court is entitled to say that the judge, with all the relevant material before him, exercised his discretion wrongly in awarding a jury on the ground of gravity of the injuries.
FN52  2 K. B. 130.
FN53  K. B. 718; 60 T. L. R. 536;  2 All E. R. 293, C. A.
FN54  2 K. B. 130.
FN55  2 K. B. 130.
FN56  A. C. 473; 53 T. L. R. 689;  2 All E. R. 646, H. L. (E. ).
FN57  1 W. L. R. 1391.
FN58  2 Q. B. 409.
FN59  1 W. L. R. 623.
Martin Jukes Q. C. and Mrs. Margaret Puxon for the plaintiff. This is a question of construction of a statute and a statutory [*285] order, namely, section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933, and R. S. C. , Ord. 36, r. 1. Under the statute Parliament has decided that a jury is the proper tribunal for trial of cases where damages are at large and upon which there may be a wide diversity of opinion, such as libel and slander. In all other cases, the mode of trial is left to the discretion of the judge. The statute does not limit the judges discretion unless it can be shown that the judge has applied some wrong principle of law or taken into account some fact or facts which are plainly irrelevant. Under R. S. C. , Ord. 36, r. 1, the judges discretion is described as absolute. The word absolute does not appear in the statute and it may or may not make any difference. It is admitted that Ord. 36, r. 1, is the only place in the rules in which the word absolute appears.
It is submitted that where Parliament has given by statute a discretion to a judge to award a jury trial this court cannot fetter that discretion. It cannot interfere whether it approves or disapproves of jury trial provided that the judge has exercised his discretion properly: Hope v. Great Western Railway Co. [FN60] Here the judge exercised his discretion properly in the light of the authorities in force at the time he made his decision. He could not take into account the three authorities relied on by the defendant because they had not then been decided. It is difficult to speculate what he would have done had he had those three cases before him, but it is to be observed that even after they had been decided, Lyell J. awarded a jury in a personal injuries case where a plaintiff had been injured by the loss of his genital organs. In any event, Hennell v. Ranaboldo [FN61] and Watts v. Manning [FN62] are distinguishable from the present case because in both those cases this court held that there had been a wrong exercise of discretion so that the court was entitled to interfere.
FN60  2 K. B. 130.
FN61  1 W. L. R. 1391.
FN62  1 W. L. R. 623.
Where discretion is given to a judge, it is reviewable by an appellate court only where there has been a miscarriage of justice. Any appellate court is entitled to indicate the way in which it thinks discretion should be exercised, but it is not entitled to control the judge by laying down rules for him, because that would be to destroy his discretion. The authorities show how difficult it is to interfere with a judges discretion even when some rules are laid down: see Hyman v. Rose [FN63] and also Donald [*286] Campbell & Co. v. Pollak, [FN64] which related to discretion as to costs, in particular the opinion of Viscount Cave L. C. , [FN65] in Evans v. Bartlam, [FN66] where the House of Lords was considering the general discretion of the judge in interlocutory matters and Blunt v. Blunt [FN67] where Lord Simon laid down maxims to guide the judges in the exercise of discretion in divorce cases. The position is the same at common law as it is in divorce. Here the Act and rules confer on the judge an unfettered discretion to order a jury in personal injuries cases if he thinks fit. It may be that judges will exercise their discretion differently now from the way they did in 1937 when Hopes case [FN68] was decided but that discretion remains unfettered until Parliament sees fit to change it. It is not for an appellate court to do so. Its duty is simply to construe a and apply the statute: per Salmon L. J. in Watts v. Manning. [FN69]
FN63  A. C. 623; 28 T. L. R. 432, H. L.
FN64  A. C. 732, H. L. (E. ).
FN65 Ibid. 809-812.
FN66  A. C. 473.
FN67  A. C. 517, 525; 59 T. L. R. 315;  2 All E. R. 76, H. L. (E. ).
FN68  2 K. B. 130.
FN69  1 W. L. R. 623.
On the general question of the suitability of trial by jury for personal injuries cases, the defendants criticisms amount to an attack on the whole system of trial by jury. But for 500 years the normal method of trial in all civil cases was by jury, which is the foundation of our liberties and is a common law right which is highly valued. The mode of trial was not altered until the Common Law Procedure Act, 1854. Such a highly valued common law right cannot be taken away except by clear words in a statute. It was largely taken away during the 1914 to 1918 war but largely restored by the Act of 1933. Some cases, such as those relating to sale of goods, are not now heard by juries, but they do not touch the life or reputation of the ordinary citizen. In cases which do, such as personal injuries actions and defamation actions, the right to trial by jury is important. Jury trial in personal injuries cases has declined in recent years, not because of any defect in the system, but because they are not asked for: see per Lord Devlin in the >Hamlyn Lectures, 8th series, Trial by Jury, Chap. 6, p. 143. Nevertheless the right to trial by jury remains. Juries have tried personal injuries actions ever since the eighteenth century and there has been no real dissatisfaction with their awards until the last few years: see Morey v. Woodfield (No. 2) [FN70]; Warren v. King [FN71] and Every v. Miles. [FN72] Lack of uniformity of awards may give ground for criticism. In some cases a jury may go badly wrong, but so [*287] might a judge alone. Defects in a system are not a ground for abolishing the whole system. Criticism has developed since the publication of awards of damages by Current Law since 1947 and by Kemp and Kemp on Damages since 1954. It would be startling to think that those publications were to have the effect of abolishing trial by jury in personal injuries actions. There is a considerable body of judicial opinion since Bird v. Cocking & Son Ltd. [FN73] that a jury is a proper tribunal for the trial of these cases: see, for example, Rushton v. National Coal Board [FN74]; Waldon v. War Office [FN75]; Dolbey v. Goodwin, [FN76] per Lord Goddard C. J. [FN77]; Bocock v. Enfield Rollings Mills Ltd. , [FN78] per Singleton L. J. [FN79] and Scott v. Musial, [FN80] where Morris L. J. [FN81] quoted the views of other judges to the effect that a jury was the proper tribunal to try serious personal injuries cases. In Pease v. George [FN82] all three members of this court said the same. Those cases show that judges have taken the view that juries, unaided as they are, are good tribunals, perhaps the best for deciding these cases. There may be certain categories of cases, such as loss of a limb or an eye, where knowledge of the scale of awards given in other cases might assist a jury in coming to a decision, but there can be no scale for cases such as nervous illness, life-long headaches resulting from injury, or a brain injury turning a boy into a criminal psychotic. In such cases there is no reason why a jury should not be able to assess the damages as well as a judge, to whom awards in comparable cases are rarely cited.
FN70  1 W. L. R. 16.
FN71  1 W. L. R. 1.
FN72 Unreported. 1964, E, No. 261, C. A.
FN73  2 T. L. R. 1260.
FN74  1 Q. B. 45.
FN75  1 W. L. R. 51.
FN76  1 W. L. R. 553;  2 All E. R. 166, C. A.
FN77  1 W. L. R. 553, 555.
FN78  1 W. L. R. 1303.
FN79 Ibid. 1306.
FN80  2 Q. B. 429.
FN81 Ibid. 438.
FN82  1 W. L. R. 427;  1 All E. R. 709, C. A.
As to the guidance that can be given to a jury, it may be that in appropriate cases it would be proper for a judge to indicate the scale of awards, but precise figures cannot be suggested, because so to do would be to usurp the functions of the jury. It would be undesirable for counsel to be permitted to address the jury on quantum or to quote precise figures. Reliance is placed on the practice in the New South Wales Court, which was considered by the New South Wales Court of Appeal in Robinson v. Reilly. [FN83] In that case, [FN84] where a scale had been mentioned to a jury, no judge in the Court of Appeal held it to be improper, but in Fairbairn v. Cummings [FN85] the Court of Appeal in Victoria held that it was wrong for the judge to suggest a figure and the court [*288] set aside an award of £12,000 on the ground that the figure of £15,000 mentioned by the judge might have misled the jury. In Krycki v. Nominal Defendant, [FN86] Evatt C. J. and Wallace J. said, in a joint judgment in the New South Wales Court of Appeal, [FN87] that it was undesirable for a judge to mention the limits of damages to the jury but Ferguson J. said [FN88] he was entitled to express his views in relation to amounts which he thought would be appealable. It is submitted that it would be undesirable for counsel to be permitted to mention figures to the jury and in the majority of cases it is wholly unnecessary in view of the experience of the judge. If the judge does need assistance there is no real reason why counsel should not address him in the absence of the jury.
FN83 (1958) S. R. , N. S. W. 214.
FN84 (1958) S. R. , N. S. W. 214.
FN85  V. R. 105.
FN86  S. R. , N. S. W. 552.
FN87 Ibid. 556.
FN88 Ibid. 562.
As to the problems of expense and delay arising out of jury trial, they do not justify abolition of the system: see The Hamlyn Lectures, 8th series, Trial by Jury, Chap. 6, p. 143, where Lord Devlin, having considered these questions, did not conclude that the system was unsuitable. Whatever the criticisms made of the jury system, the court should apply the law laid down by Hope v. Great Western Railway Co. [FN89] which was upheld in Pease v. George. [FN90] It should not change the existing law with regard to jury trial simply because in two cases (Morey v. Woodfield (No. 2) [FN91] and Warren v. King [FN92] very large sums had been awarded by a jury and in one case (Every v. Miles [FN93] ) a very small sum was awarded. In the present case, there was no reason why Roskill J. should not have awarded a jury. He exercised his discretion properly in so doing and the appeal should be dismissed.
FN89  2 K. B. 130.
FN90  1 W. L. R. 427.
FN91  1 W. L. R. 16.
FN92  1 W. L. R. 1.
FN93 Unreported. 1964, E, No. 261.
Mrs. Margaret Puxon following. There is no reason to assume that the judge would have exercised his discretion in a different way had the three recent decisions on which the defendant now relies been decided at the time this case was before him. Whipps v. Powell Duffryn Engineering Co. Ltd. , [FN94] which was cited to him contained substantially all the arguments subsequently put forward to this court in Sims v. William Howard & Son Ltd. [FN95] In Whipps case, [FN96] this court refused to interfere with the discretion of a judge who had refused a jury in a fatal accident case. With [*289] that case and all the other relevant material before him, the judge nevertheless exercised his discretion in favour of a jury. In so doing he properly took into account all the relevant considerations which might affect his discretion as laid down in Blunt v. Blunt. [FN97] That case, which developed from Wilkinson v. Wilkinson, [FN98] sets out the principles which are still the basis for interfering with the exercise of a judges discretion. The judge having exercised his discretion correctly, this court should not interfere no matter how much it would have preferred him to exercise it in a different way.
FN94 Unreported. 1963, W, No. 178, C. A.
FN95  2 Q. B. 409.
FN96 Unreported. 1963, W, No. 178, C. A.
FN97  A. C. 517.
FN98 (1921) 37 T. L. R. 835n.
If this court is minded to say that juries are undesirable tribunals for assessing damages in personal injuries cases, it is faced with two unpleasant alternatives, either to say that the functions of the jury are to be usurped by the judge, or to fetter the discretion of the judge as given by statute in such a way that the discretion will go. There is a third alternative, that is, until such time as Parliament amends the Act of 1933, to indicate the undesirability of jury trials in these cases and lay down maxims for the guidance of the judges as was done in Blunt v. Blunt. [FN99] But that is very different from interfering with the decision of this judge, who exercised his discretion perfectly properly.
FN99  A. C. 517.
H. Tudor Evans Q. C. and Roy Beldam replied.
Cur. adv. vult.
January 25. LORD DENNING M. R.
On December 14, 1962, an action was brought on his behalf against the driver of the car for negligence. The driver denied [*290] negligence and did not admit the damage. It is unlikely that there will be any serious contest on liability. The substantial question is: what damages should be awarded?>/p>
On July 23, 1963, on the summons for directions, the plaintiff asked for trial by jury. Master Lawrence so ordered. The defendant appealed. On July 30, 1963, Roskill J. dismissed th appeal. So the case was to be tried by jury. It was set down for trial in the jury list and was about to come on for hearing Then on November 2, 1964 (15 months after trial by jury was ordered) the defendant sought to have the mode of trial altered He wanted trial by judge alone. He applied for leave to appeal out of time. On November 10, 1964, Sellers and Russell L. JJ. enlarged the time for appealing, gave leave to appeal from the order of Roskill J. and ordered that the appeal be heard by a full court. Both parties have agreed to accept the decision of the full court and not to appeal to the House of Lords. The reason why leave was given was so that the views of the full court might be obtained on the question of trial by jury in personal injury cases.
Up to the year 1854 all civil cases in the courts of common law were tried by juries. There was no other mode of trial available. Since 1854 trial by jury in civil cases has gradually lessened until it is now only some 2 per cent. of the whole. I will not now go through the history of the enactments from 1854 onwards; it can be found in the judgment of the court in Ford v. Blurton. [FN100] I will go straight to the governing enactment today, which is section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933. It gives a right to trial by jury to a party in the Queens Bench Division where fraud is charged against that party, or a claim is made for libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage. Then for all the remaining cases (which include personal injury cases) it says: But, save as aforesaid, any action to be tried in that Division may, in the discretion of the court or a judge, be ordered to be tried either with or without a jury.
FN100 (1922) 38 T. L. R. 801, C. A.
Hopes Case. Four years later, section 6 of the Act of 1933 was considered by the full Court of Appeal in Hope v. Great Western Railway Co. [FN101] That case has commonly been supposed to decide that, once a judge in chambers has exercised his discretion as to trial by jury or not, the Court of Appeal will not [*291] interfere with it, for his discretion is absolute. I do not think that the case decided any such thing.
FN101  2 K. B. 130; 53 T. L. R. 399;  1 All E. R. 625, C. A.
It is well to recall the issues in the case. A young woman was a season ticket holder on the railway. One winter morning she was waiting on the platform. She fell and was dragged underneath a train. Her leg had to be amputated. The pleadings disclosed a serious issue of fact: how did she come to fall? She said that the platform was icy and she slipped on it. The company said that she fainted or became giddy and over-balanced. That issue depended on the credibility of the witnesses. The pleadings also disclosed this difficult point of law: what duty did the company owe to her? She said that the company was under a contractual duty to see that their station was as safe as reasonable care and skill could make it (the test proposed by McCardie J. in McLenan v. Segar [FN102] but the company denied it and said that their duty was only to use reasonable care themselves (a test afterwards upheld in Bell v. Travco Hotels Ltd. [FN103]. That issue depended on an examination of the authorities. The master ordered trial by jury. His order was affirmed by the judge in chambers. The company appealed to the Court of Appeal.
FN102  2 K. B. 325, 332, 333; 33 T. L. R. 351.
FN103  1 Q. B. 473;  2 W. L. R. 556;  1 All E. R. 638, C. A.
On the issues thus disclosed by the pleadings, it was a very even thing, so much so that, if the mode of trial really was, as the section said, in the discretion of the judge, then, whether the judge ordered a jury or not, the Court of Appeal would be, as the section said, loth to interfere with his discretion. Mr. Saunders, for the company, realised this and trimmed his sails accordingly. He raised a point of law. He said that the onus was on the party asking for a jury to show some special reason for it. He referred to the Rules of Court then in force (a very complex set of rules) and suggested that they modified the words of the section. He submitted that on the true construction of the Act and the Rules relating to trial by jury as they now stand, the party applying for a jury has to show some special reason why a jury should be ordered. The full court rejected this construction. Lord Wright M. R. said [FN104]: neither as a matter of history nor of what is to be found in the rules existing in 1933 can I find any justification at all for putting any limitation on the clear words, as I regard them, of the section which leaves the matter completely in the discretion of the court or a judge.
FN104  2 K. B. 130, 139.
[*292] In my opinion Hopes case [FN105] was a decision simply on the construction of the Act and the rules then in force. It decided that the mode of trial was in the discretion of the court or a judge, without his being fettered by any presumption of law in favour of or against a jury. It did not decide that the discretion of the judge in chambers was absolute, or incapable of review by the Court of Appeal. That point was never discussed at all.
FN105  2 K. B. 130.
Absolute Discretion. The decision in Hopes case [FN106] has, however, been constantly misunderstood, probably because of a phrase used by Lord Wright at one point that the discretion of the judge was completely untrammelled. [FN107] The editors of the Annual Practice stated thereafter that the discretion of the judge is absolute. They did so, year after year, in the notes to R. S. C. Ord. 36, rr. 1 and 2, as then in force. This was so much taken for granted that in 1958, when the Rules Committee came to revise the rules, they amended R. S. C. Ord. 36, r. 1, sub-r. (3), so as to say: the discretion of a court or a judge in making or varying any order under this rule [as to mode of trial] is an absolute one.
FN106  2 K. B. 130.
FN107 Ibid. 138.
What does the word absolute mean here? Does it add anything to the word discretion? In Whipps v. Powell Duffryn Engineering Co. Ltd. [FN108] Harman L. J. said [FN109]: Every discretion is absolute if you do not confine it, and for myself I do not think the word absolute adds to the matter at all, and in Hennell v. Ranaboldo [FN110] Diplock L. J. said the same. [FN111] But I rather think that the word absolute was used here in the sense in which we speak of an absolute monarch. It means that the discretion is unfettered and unrestrained, not subject to review by any court. If that be the sense in which the word absolute is used in this rule, then in my opinion the rule is ultra vires. Section 6 of the Act of 1933 speaks of discretion simply. The rule adds the word absolute to the statute, and, in adding, alters it. That it has no right to do. Whenever a statute confers a discretion on the court or a judge, the Court of Appeal has jurisdiction to review the exercise of that discretion; see Ormerod v. Todmorden Joint Stock Mill Co. Ltd. by Brett L. J. [FN112] save only as to costs, for then the judge has the last word; see [*293] section 31 (1) (h) and (i) of the Supreme Court of Judicature (Consolidation) Act, 1925. No rule can diminish the jurisdiction of this court so given by statute. In my opinion, therefore, the word absolute either adds nothing, or, if it adds something, it is ultra vires. It can be ignored.
FN108 Unreported. 1963, W. , No. 178, C. A.
FN110  1 W. L. R. 1391;  3 All E. R. 684, C. A.
FN111  1 W. L. R. 1391, 1393.
FN112 (1882) 8 Q. B. D. 664, 679, C. A.
Reviewing Discretion. This brings me to the question: in what circumstances will the Court of Appeal interfere with the discretion of the judge? At one time it was said that it would interfere only if he had gone wrong in principle. But since Evans v. Bartlam, [FN113] that idea has been exploded. The true proposition was stated by Lord Wright in Charles Osenton & Co. v. Johnson. [FN114] This court can and will, interfere if it is satisfied that the judge was wrong. Thus it will interfere if it can see that the judge has given no weight (or no sufficient weight) to those considerations which ought to have weighed with him. A good example is Charles Osenton & Co. v. Johnson [FN115] itself, where Tucker J. in his discretion ordered trial by an official referee, and the House of Lords reversed it because he had not given due weight to the fact that the professional reputation of surveyors was at stake. Conversely it will interfere if it can see that he has been influenced by other considerations which ought not to have weighed with him, or not weighed so much with him, as in Hennell v. Ranaboldo. [FN116] It sometime happens that the judge has given reasons which enable this court to know the considerations which have weighed with him; but even if he has given no reasons, the court may infer, simply from the way he has decided, that the judge must have gone wrong in one respect or the other, and will thereupon reverse his decision: see Grimshaw v. Dunbar. [FN117]
FN113  A. C. 473; 53 T. L. R. 689;  2 All E. R. 646, H. L. (E. ).
FN114  A. C. 130, 148; 57 T. L. R. 515;  2 All E. R. 245, H. L. (E. ).
FN115  A. C. 130, 148; 57 T. L. R. 515;  2 All E. R. 245, H. L. (E. ).
FN116  1 W. L. R. 1391.
FN117  1 Q. B. 408;  2 W. L. R. 332;  1 All E. R. 350, C. A.
Rules to Guide Discretion. In Sims v. William Howard & Son Ltd. [FN118] this court laid down a rule for the guidance of the judges. It said that in personal injury cases a jury should not be ordered except in special circumstances. This rule has been challenged. It is said to be an unwarranted fetter on the discretion of the judges. Yet it is of the first importance that some guidance should be given else you would find one judge ordering a jury, the next refusing it, and no one would know where he stood. It might make all the difference to the ultimate result of the case. This would give rise to much dissatisfaction. It is [*294] an essential attribute of justice in a community that similar decisions should be given in similar cases, and this applies as much to mode of trial as anything else. The only way of achieving this is for the courts to set out the considerations which should guide the judges in the normal exercise of their discretion. and that is what has been done in scores of cases where a discretion has been entrusted to the judges.
FN118  2 Q. B. 409;  2 W. L. R. 794;  1 All E. R. 918, C. A.
Let me start with the celebrated case in 1770 of John Wilkes. [FN119] He was in custody as an outlaw. He applied for bail, which was in the discretion of the court. Lord Mansfield then made this well-known pronouncement [FN120]: It is, indeed, in the discretion of the court, to bail a person so circumstanced. But discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular. These words were adopted by Lord Halsbury L. C. in Sharpe v. Wakefield. [FN121] Then Lord Mansfield went on to refuse bail to John Wilkes because the practice at the time was not to grant bail if the prosecutor did not consent. He said [FN122]: We cannot therefore do it, if the Attorney-General does not consent. For, we must act alike in all cases of like nature: and what we do now, ought to be agreeable to former precedents, and will become a precedent in future cases of a like kind.
FN119 Rex v. John Wilkes (1770) 4 Burrow 2527.
FN120 Ibid. 2539.
FN121  A. C. 173, 179, H,L (E. ).
FN122 4 Burrow 2527, 2543.
Modern illustrations abound. Thus when a judgment by default is obtained regularly, the court or a judge has a discretion to set it aside upon such terms as it may think fit. The discretion is in terms unconditional. Yet the courts have laid it down as an almost inflexible rule that there must be an affidavit showing a defence upon the merits (see Farden v. Richter [FN123]; and this rule received the approval of Lord Atkin in Evans v. Bartlam. [FN124] Again, when a lessor is proceeding to enforce a right of forfeiture, the court is empowered to grant relief on such terms as the court thinks fit. Yet we all know that, as a general rule, the lessee must remedy the breach as a condition precedent to relief (see Rose v. Hyman, [FN125] by Cozens-Hardy M. R. [FN126] and this was approved as a useful maxim by Earl Loreburn L. C. in Hyman v. Rose. [FN127] The best instance of all is, however, the [*295] discretion of the court to refuse a divorce if the petitioner has been guilty of adultery. This discretion is unfettered by the statute. Yet the courts have laid down considerations to guide judges in the exercise of their discretion, and these considerations have been changed from time to time as the years go by. They change as public policy demands. In 1869 Lord Penzance [FN128] declared that the discretion was not to be exercised in favour of a petitioner unless there were some special circumstances excusing it. For years the discretion was very rarely exercised. Gradually it became easier. Finally, in 1943, Viscount Simon L. C. said that the court must bear in mind the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down: see Blunt v. Blunt. [FN129] This opened the floodgates. Since that time discretion has been rarely refused.
FN123 (1889) 23 Q. B. 124, D. C.
FN124  A. C. 473, 480.
FN125  2 K. B. 234, C. A.
FN126 Ibid. 241.
FN127  A. C. 623; 28 T. L. R. 432, H. L.
FN128 Morgan v. Morgan & Porter (1869) L. R. 1 P. & D. 644, 646.
FN129  A. C. 517, 525; 59 T. L. R. 315;  2 All E. R. 76, H. L. (E. ).
The cases all show that, when a statute gives discretion, the courts must not fetter it by rigid rules from which a judge is never at liberty to depart. Nevertheless the courts can lay down the considerations which should be borne in mind in exercising the discretion, and point out those considerations which should be ignored. This will normally determine the way in which the discretion is exercised, and thus ensure some measure of uniformity of decision. From time to time the considerations may change as public policy changes, and so the pattern of decision may change: this is all part of the evolutionary process. We have seen it in the way that discretion is exercised in divorce cases. So also in the mode of trial. Whereas it was common to order trial by jury, now it is rare.
Relevant Considerations Today. Let it not be supposed that this court is in any way opposed to trial by jury. It has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime, or when in a civil case a mans honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by jury has no equal. But in personal injury cases trial by jury has given place of late to trial by judge alone, the reason being simply this, that in these cases trial by a judge alone is more acceptable to the great majority of people. Rarely does a party ask in these cases for a jury. When a solicitor gives advice, it runs in this way: If I were you, I should not ask for a jury. I should have a judge alone. You do know where you stand with a judge, and if [*296] he goes wrong, you can always go to the Court of Appeal. But as for a jury, you never know what they will do, and if they do go wrong, there is no putting them right. The Court of Appeal hardly ever interferes with the verdict of a jury. So the client decides on judge alone. That is why jury trials have declined. It is because they are not asked for. Lord Devlin shows this in his book [The Hamlyn Lectures, eighth series, Trial by Jury, ch. 6] , p. 133.
This important consequence follows: the judges alone, and not juries, in the great majority of cases, decide whether there is negligence or not. They set the standard of care to be expected of the reasonable man. They also assess the damages. They see, so far as they can, that like sums are given for like injuries. They set the standard for awards. Hence there is uniformity of decision. This has its impact on decisions as to the mode of trial. If a party asks for a jury in an ordinary personal injury case, the court naturally asks: Why do you want a jury when nearly everyone else is content with judge alone? I am afraid it is often because he has a weak case, or desires to appeal to sympathy. If no good reason is given, then the court orders trial by judge alone. Hence we find that nowadays the discretion in the ordinary run of personal injury cases is in favour of judge alone. It is no sufficient reason for departing from it simply to provide a guinea-pig case: see Hennell v. Ranaboldo. [FN130]
FN130  1 W. L. R. 1391.
Serious Injuries. For many years, however, it has been said that serious injuries afford a good reason for ordering trial by jury. At any rate, it is a consideration which should be given great weight: see Dolbey v. Goodwin, [FN131] Burrows v. Metal Box Co. [FN132] in 1956, and Pease v. George. [FN133] Recent experience has led to some doubts being held on this score. It begins to look as if a jury is an unsuitable tribunal to assess damages for grave injuries, at any rate in those cases where a man is greatly reduced in his activities. He is deprived of much that makes life worthwhile. No money can compensate for the loss. Yet compensation has to be given in money. The problem is insoluble. To meet it, the judges have evolved a conventional measure. They go by their experience in comparable cases. But the juries have nothing to go by. Let me illustrate this from the cases:
FN131  1 W. L. R. 553;  2 All E. R. 166, C. A.
FN132 Kemp & Kemp on Damages, 1961, 2nd ed. , 296.
FN133  1 W. L. B. 427;  1 All E. R. 709, C. A.
[*297] (i) Loss of a limb. Very frequently cases come up for decision when a man has lost a leg, or a hand, or an arm. Most judges know by experience the conventional figures for these cases, so much so that at one time they did not allow awards in previous cases to be cited to them. But the practice was changed by Bird v. Cocking & Sons Ltd. [FN134] (right hand amputated, left hand of little use); Rushton v. National Coal Board [FN135] (right arm torn off), and Waldon v. War Office [FN136] (lower half of body paralysed). In each case this court allowed counsel to refer to earlier awards in comparable cases and upset the award of the trial judge on the ground that it was out of line with the general pattern. Very recently the Privy Council has taken the same course: see Jag Singh v. Toong Fong Omnibus Co. Ltd. [FN137] (amputation of leg below the hip joint). This practice has not led to any excessive citations by counsel. In most cases the judges know the pattern of awards and do not need to be reminded of them. But juries do not know the pattern, and according to current practice are not allowed to know. This ignorance led recently to a grave injustice. In Every v. Miles [FN138] a young married woman lost her right leg below the knee. The defendants (who, no doubt, knew the pattern) paid into court £5,000. The jury (who did not know the pattern) awarded her only £2,000. The three members of this court all thought that £2,000 was substantially less than anything they would have considered proper, but the majority thought they could not interfere. If the judge had been able to tell the jury that the usual pattern of awards for loss of a leg was from £4,000 to £6,000 they would have had something to go by, and would have arrived ab a much higher figure than £2,000.
FN134  2 T. L. R. 1260;  W. N. 5, C. A.
FN135  1 Q. B. 495;  1 W. L. R. 292;  1 All E. R. 314, C. A.
FN136  1 W. L. R. 51;  1 All E. R. 108, C. A.
FN137  1 W. L. B. 1382, P. C.
FN138 Unreported. 1964, E, No. 261, C. A.
(ii) Loss of expectation of life. In many grave injuries, such as to the brain or to the back, the man, at the date of the trial, can be expected to survive only a few years. He will have been deprived by the accident of 30 or 40 years of his life. He has lost for these lost years his future earnings and his future happiness and usefulness. What compensation is to be given him for this most grievous loss? It is incalculable. It cannot be translated in terms of money. No one of us would suffer it for all the gold in the Bank of England. At one time judges and juries [*298] were left without any guidance. Some thought in hundreds of pounds, others in thousands. The result was chaos. No one knew what to award. In the end the House of Lords resolved it by holding that, if a man is cut off in the prime of life, then no matter how bright his prospects only a conventional sum of £200 or so should be awarded in respect of his lost years: see Benham v. Gambling. [FN139] Owing to the fall in the value of money, this figure has been increased now to £500 or so: see West (H. ) & Son Ltd. v. Shephard, [FN140] by Lord Reid. [FN141] That is all he can get for his lost years. If such a case were tried by a jury, the judge would, I should think, be bound to tell them that for these lost years the House of Lords had set a standard of measurement which they ought to follow.
FN139  A. C. 157; 57 T. L. R. 177;  1 All E. R. 7, H. L. (E. ).
FN140  A. C. 326;  2 W. L. R. 1359;  2 All E. R. 625, H. L. (E. ).
FN141  A. C. 326, 343.
(iii) Loss during his shortened span. Although you cannot give a man so gravely injured much for his lost years, you can, however, compensate him for his loss during his shortened span, that is, during his expected years of survival. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worth while. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money. But juries are ignorant of it. The cases following reveal the difficulties.
(iv) The unconscious cases. Each of the cases on unconsciousness was tried by a judge alone. In the first case a young woman of 20 suffered severe brain injuries. She never regained consciousness (Wise v. Kaye [FN142] The judges differed greatly. The judge who tried the case, Finnemore J. , thought that the figure should be £15,000, and in the higher courts this was not disturbed. But Diplock L. J. [FN143] (with the [*299] subsequent approval of Lord Devlin [FN144] and, I believe, Lord Reid [FN145] thought it should be one-tenth of that sum, namely, £1,500. In the second case a married woman aged 41 was rendered nearly unconscious for the rest of her days. The judge who tried the case referred to the £15,000 which was awarded in the first case, and used it as a starting-point for his own award of £17,500, and this was not disturbed by the higher courts: see West (H. ) & Son Ltd. v. Shephard. [FN146] Thus in these cases of total (or nearly total) unconsciousness, a pattern or scale has emerged. If any such case should arise again, and be tried by a judge alone, he would have regard to this pattern or scale. But if a like case is to be tried by a jury, they cannot be told about the pattern; they are left to grope in the dark without any guidance.
FN142  1 Q. B. 638;  2 W. L. R. 96;  1 All E. R. 257, C. A.
FN143  1 Q. B. 638, 672.
FN144 West (H. ) & Son Ltd. v. Shephard  A. C. 326, 356.
FN145 Ibid. 341.
FN146  A. C. 326.
(v) The quadriplegic cases. In Morey v. Woodfield (No. 2) [FN147] (February, 1962) a girl of 12 was paralysed in all four limbs. Yet owing to modern science she might live for some few years. The jury awarded her £50,000 damages. This court would not have awarded her more than £30,000 or £35,000 (see Lord Pearce [FN148]. Yet the court thought that it could not interfere. In Warren v. King [FN149] a girl of 17 was likewise paralysed in all four limbs. The jury awarded her £50,000 damages. This court found a misdirection. On this account they set aside the award and ordered a new trial, but Sellers L. J. said that he thought the award should have been £30,000 or £35,000. [FN150] Later the parties settled it for £35,000. [FN151] If those cases had been tried by a judge alone, he would have had before him the comparable cases of people paralysed in two limbs (paraplegics) where the general run of awards is £15,000 or £20,000 (see the cases collected in Kemp & Kemp on Damages, 2nd ed. , pp. 347 to 369), and he might well have arrived for a quadriplegic at a figure of £30,000 to £35,000, which is the very figure that this court thought proper in each case. But the jury had no guidance at all.
FN147  1 W. L. R. 16;  3 All E. R. 533, C. A.
FN148  1 W. L. R. 16, 20.
FN149  1 W. L. B. 1;  3 All E. R. 521, C. A.
FN150  1 W. L. R. 1, 3.
FN151 Note. Warren v. King  1 W. L. R. 122, 123;  3 All E. R. 993n.
Lessons of Recent Cases. These recent cases show the desirability of three things: First, assessability: In cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived [*300] from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions are given in similar cases; otherwise there will be great dissatisfaction in the community, and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good. None of these three is achieved when the damages are left ab large to the jury. Under the present practice the judge does not give them any help at all to assess the figure. The result is that awards may vary greatly, from being much too high to much too low. There is no uniformity and no predictability.
I would add this. The assessment of damages is almost as difficult as the sentencing of offenders. In each it is important that similar decisions should be given in similar cases. Some measure of uniformity is achieved in criminal cases by leaving the sentence always to the judge, with an appeal to the Court of Criminal Appeal. We can hardly put damages on a like footing. But cannot we do more than at present to secure some measure of uniformity?
Can Awards of Juries be Corrected?One remedy that has been suggested is that the Court of Appeal should be more ready to correct the verdict of a jury. This court should correct it in much the same way as it corrects the decision of a judge. After all, the test which it applies is very much the same. This court can interfere with the figure awarded by a jury if it is out of all proportion to the circumstances of the case. It can interfere with the figure awarded by a judge if it is a wholly erroneous estimate of the damage suffered. In each case excess implies some standard which has been exceeded: see Mechanical and General Inventions v. Austin, [FN152] by Lord Wright, [FN153] and the only standard which this court can apply is to take the conventional figure awarded in comparable cases and see how far the award is above or below it.
FN152  A. C. 346, H. L. (E. ).
FN153 Ibid. 377.
Although the test is so similar, nevertheless in practice the result is very different. In case after case this court has held that it cannot interfere with a jury as readily as with a judge: see Bocock v. Enfield Rolling Mills Ltd. [FN154]; Scott v. Musial [FN155]; [*301] Morey v. Woodfield (No. 2), [FN156] and Every v. Miles. [FN157] One reason for this difference is the difficulty of showing the basis of the jurys award. They give no reasons. They find no facts. Their verdict is as inscrutable as the sphinx. So you cannot pick holes in it. Another reason is the very great hesitation which this court feels before it interferes with the verdict of a jury. This hesitation is right enough when the jury have all the relevant materials before them, but not when they are ignorant of them. In cases of personal injury the jury are ignorant. The award is basically a conventional figure, but the jury are not told what that figure is. No wonder they go wrong sometimes! When they do, they would be the first to wish it to be put right. Take Every v. Miles [FN158]: If the jury knew that the conventional figure for loss of a leg was between £4,000 and £6,000, they would wish their figure of £2,000 to be corrected.
FN154  1 W. L. R. 1303;  3 All E. R. 94, C. A.
FN155  2 Q. B. 429;  3 W. L. R. 437;  3 All E. R. 193, C. A.
FN156  1 W. L. R. 16.
FN157 Unreported. 1964. E. No. 261.
FN158 Unreported. 1964. E. No. 261.
We cannot change the principle on which those cases were decided, but we can, I think, alter the emphasis. In. future this court will not feel the same hesitation as it formerly did in upsetting an award of damages by a jury. If it is out of all proportion to the circumstances of the case (that is, if it is far too high or far too low), this court will set it aside. On setting it aside this court has power, I think, to order the fresh assessment to be made by a judge alone. This could not be done in the old days when there was a right to trial by jury. But now that the mode of trial is a matter of discretion, this court can, on granting a new trial, order that it be held by a judge alone. This power is, I think, contained within the words of R. S. C. , Ord. 58, r. 9, sub-rr. (3) and (6). In lieu of ordering a new trial, this court can substitute its own figure, but only where the necessary consent is forthcoming under R. S. C. , Ord. 58, r. 10, sub-r. (4).
Can the Jury be Given More Guidance?The other remedy that has been suggested is that the jury should be given more guidance. Two possible ways are put forward: (i) By referring them to awards in comparable cases; (ii) By telling them the conventional figure. I will take them in order.
(i) Comparable cases. Before 1951 it was not the practice for counsel to refer the court or the jury to awards in comparable cases. It is obvious that counsel could not call witnesses to give the figures in other cases. Nor could counsel give figures himself from his own experience or from the books. If counsel sought to refer to any comparable case, it would be rejected out of hand on [*302] the ground that it was res inter alios acta. Since Bird v. Cocking & Sons Ltd. [FN159] in 1951 a change has set in. When the case is tried by a judge alone, or heard on appeal by the Court of Appeal, counsel is allowed to refer to awards in comparable cases. This is because we now recognise that the award is basically a conventional figure, and in order to arrive at it, it is relevant to refer to comparable cases. If this be so before a judge alone, or the Court of Appeal, why should it not also be so in trial by jury? Why should the jury not receive the same guidance as a judge?
FN159  2 T. L. R. 1260;  W. N. 5, C. A.
This sounds well in theory, but in practice it is open to strong objection. During the argument before us both counsel agreed that it would not do. See what would happen! Each counsel would refer the jury to cases which he believed were comparable but which were not really so. Speeches would be taken up with the one counsel citing analogies and the other destroying them. Then the judge would have to review them all again in his summing-up. The inevitable result would be that the minds of the jury would be distracted from the instant case and left in confusion.
If counsel cannot refer the jury to comparable cases, neither can the judge. He cannot, on his own initiative, drag out from the books, or from his own experience, other awards (and tell the jury of them) when counsel have not had any opportunity of commenting on them, or distinguishing them. All in all, I am quite satisfied that the present practice should be maintained where the jury are not told of awards in comparable cases.
(ii) Conventional figures. Another suggestion is that the jury should be told of the conventional figures in this way, that the judge should be at liberty in his discretion to indicate to the jury the upper and lower limits of the sum which in his view it would be reasonable to award. Thus in the case of the loss of a leg, he might indicate that the conventional figure is between £4,000 and £6,000. This proposal has many attractions. It would give the jury the guidance which they at present lack. But here again we come up against a serious objection. If the judge can mention figures to the jury, then counsel must also be able to mention figures to them. Once that happened, we get into the same trouble again. Each counsel would, in duty bound, pitch the figures as high or as low as he dared. Then the judge would give his views on the rival figures. The proceedings would be in danger of developing into an auction. The objections are so great that [*303] both counsel before us agreed that counsel ought not to be at liberty to mention figures to the jury. If this be so, I think that the judge should not do so either.
Apart from this, it seems to me that if the judge were at liberty to mention the upper and lower limits, then in order to be of any real guidance, they would have to be somewhat narrow limits. It would be no use his telling the jury (as judges have done in the past) for the loss of a leg: Do be reasonable. Dont give as much as £100,000, or as little as £100. The judge would have to come nearer home and say: The conventional figure in such a case as this is between £4,000 and £6,000. But if he can give them narrow limits of that kind, there is little point in having a jury at all. You might as well let the judge assess the figure himself.
I come to the conclusion, therefore, that we must follow the existing practice, and we cannot sanction any departure from it.
Conclusion. The result of it all is this: We have come in recent years to realise that the award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Yet the jury are not allowed to know what that conventional figure is. The judge knows it, but the jury do not. This is a most material consideration which a judge must bear in mind when deciding whether or not to order trial by jury. So important is it that the judge ought not, in a personal injury case, to order trial by jury save in exceptional circumstances. Even when the issue of liability is one fit to be tried by a jury, nevertheless he might think it fit to order that the damages be assessed by a judge alone.
The Present Case. At long last I come to the present case. On July 30, 1963, when it was before Roskill J. , he exercised his discretion in the light of the considerations then current. He had not the benefit of the three decisions since then, particularly that in Sims case. [FN160] Nor, of course, had he the guidance which I hope is to be found in the present judgment. The defendants acquiesced in the order for trial by jury for months and months. It was not until the case was just about to come for trial before a jury that they sought to change the mode of trial to judge alone. It seems to me that they come too late. I am not disposed in these circumstances to interfere with the order made by the judge, and all the more so when I think that, if the jury should go [*304] seriously wrong, this court will not feel the same hesitation as it formerly did in upsetting them.
FN160  2 Q. B. 409.
I would therefore dismiss this appeal.
SELLERS L. J.
PEARSON L. J.
DAVIES L. J.
LORD DENNING M. R.
DIPLOCK L. J. cannot be here this morning, but he authorises me to say that he agrees.
Appeal dismissed with costs.