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Family values

20 October 14

Judges' awards for the loss of a close relative have increased markedly over the past year or two, with certain factors emerging as of weight

by Laura McCallum

Over the last year, there have been significant increases in judge made awards for relatives suffering from grief and distress following the death of a loved one.

Under s 4 of the Damages (Scotland) Act 2011, each qualifying relative is able to make individual claims for the “grief and sorrow caused by” the deceased’s death, and “the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased’s society and guidance if the deceased had not died”.

The 2011 Act saw an extension of the categories of relatives who qualify to make a claim under the Act, to include step-parents, adopted siblings and step-siblings, adopted and step-children, grandparents and grandchildren.

The increase from previous judge made awards has arisen partly following Lord Hamilton’s comments in Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486, regarding Bellingham v Todd [2011] CSOH 74 and Wolff v John Moulds (Kilmarnock) Ltd 2012 SLT 231, that both cases “markedly undervalue” s 1(4) claims. Further, recent jury awards, including the “Nimrod” cases (Young v Advocate General for Scotland, 27 October 2010; Dicketts v Advocate General for Scotland, 3 November 2010; Swarbrick v Advocate General for Scotland, 19 January 2011: see 2011 Rep LR at pp 39-40), showed that there was a significant difference in awards being made by juries and those by judges. Jury awards were evidently more generous towards the pursuer. Given those and Lord Hamilton’s comments, judges have had to rethink their own valuations of cases.

Judges' awards

The first of the increases came in the case of McGee v RJK Building Services Ltd 2013 SLT 428, in which the widow of the deceased was awarded £80,000; his children’s awards ranged between £27,500 to £35,000 (depending on the nature of relationship), grandchildren who had proved a special relationship were awarded £25,000, and all other grandchildren were awarded £12,000.

In February 2014, in Currie v Esure Services [2014] CSOH 34, the parents and brother of a 24-year-old man, who died in a road traffic accident, were awarded £42,000 each and £22,500, respectively.

In August 2014 in Gallagher v SC Cheadle Hulme [2014] CSOH 103, the family of an engineer who had died of mesothelioma were awarded a total sum of £311,000 for s 4 awards. Lord Uist recognised that Mr Gallagher was a family man who was greatly respected, admired and adored by his family. As a consequence, they were devastated by his unexpected illness and death, his widow describing the loss as absolutely devastating. Following evidence being heard of the close relationship, Mr Gallagher’s widow was awarded £80,000, his four children £35,000, two grandchildren who had proved a special relationship, £25,000 and his remaining grandchildren’s awards ranged between £12,000 and £2,500, depending on their age at the time of death.

In McCarn v Secretary of State for Business, Innovation & Skills [2014] CSOH 121, a case brought by five adult children following the death of their father, an ex-shipbuilder, from mesothelioma, Lord Bannatyne made s 4 awards of £35,000.

Young v MacVean [2014] CSOH 133 (under appeal) again considered in detail the nature and closeness of the relationship between the pursuer and the deceased. Lady Rae stated in her judgment that, when considering quantum for the loss of a child, she was entitled to take into account the particular closeness of the relationship between mother and son and to recognise the resultant significant loss which the pursuer must now be feeling. Lady Rae also expressly included the Nimrod cases in assessing the s 4 awards, representing a welcome recognition of their significance and relevance. She awarded £80,000 to Mrs Young for the loss of her son. That of course is on par with the loss of a husband or wife, as per the cases of Gallagher and McGee, and is the only award of its kind, thus far.

In the recent cases, judges have been increasingly focusing on and considering individual circumstances, the significance of relationships and also the life expectancy of the deceased.

Relationships

It is clearly a difficult task for a judge to make an assessment of a loss of society award given the nature of the loss. It is a financial recompense for a non-financial loss, but ultimately it must always be what is fair and reasonable in the circumstances.

In Gallagher, Lord Uist commented that it is open to a pursuer to highlight the positive aspects of a relationship and to a defender to highlight the negative aspects. As discussed above, Lord Uist’s decision was greatly influenced by the evidence led by the pursuer that confirmed the closeness of the relatives to the deceased and the significant effect that the loss had had on them.

In Ryder v Highland Council 2013 SLT 847, the pursuer’s relationship with the deceased (son and mother) was unusual as there had been periods of estrangement. At the time of death, however, those difficulties had resolved at least one year prior to death and Lord Tyre accepted that there was a close relationship by that time. The case failed on the basis of liability, but had liability been established Lord Tyre commented that he would have regarded £40,000 as an appropriate award under s 4(3)(b).

Life expectancy

There have been notable discussions regarding life expectancy as of late, and most recently in the case of McCarn. The defender attempted to rely on awards made in the jury case of Kelly v Upper Clyde Shipbuilders, 29 July 2012, unreported, in which damages of £25,000 were awarded to adult children of an 82-year-old man who died from mesothelioma. The pursuer accepted that McCarn and Kelly were similar in nature apart from the issue of life expectancy. The deceased in McCarn could have expected to live for a further 18 years had he not contracted mesothelioma, whereas in Kelly the deceased could have expected to live for a further four years. Lord Bannatyne accepted Kelly as a starting point to consider awards of damages, but was persuaded by the pursuer that life expectancy was a significant factor when determining damages for loss of society. It was generally accepted that where the relationship between the pursuer and the deceased would have continued for a longer period, the award of damages should be greater to reflect that. The children of the deceased were subsequently awarded £35,000 each for the loss of their father.

Whilst awards of relatives’ damages have improved considerably over the last two years, there is still room for improvement, particularly in sibling awards. Whilst a parent does not expect a child to predecease them, is a sibling in a different position? Can they not reasonably expect a brother or sister to survive throughout their life and to provide moral support and assistance, particularly as parents age? Is their loss any less traumatic, and does it not perhaps have longer term consequences? Something to think about!

Laura McCallum is a solicitor with Irwin Mitchell Scotland LLP 

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