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Fatal accident: damages awarded to relatives

Currie & Ors v Esure Services Ltd
21.2.14
Court of Session, Outer House

Background

The claimants were the father, mother and older brother of a young man in his twenties who died in December 2011 after being struck by a car. Liability was admitted and there was no question of contributory negligence.

In Scotland, various relatives of a deceased may be entitled to claim damages, commonly referred to as an award for “loss of society”. This covers a number of aspects such as the relative’s grief and sorrow as a result of the death and the loss of the deceased’s company and guidance. In this case, the valuation of the loss of society claims was in dispute. The court heard evidence from all three claimants about their relationship with the deceased.

By reference to a number of recent cases in which the awards made by juries were compared to those made by judges sitting alone, the claimants sought payments of £65,000 for each of the deceased’s parents and £35,000 for his elder brother. 

The defenders argued, however, that the deceased’s parents should receive £27,000 each and his brother should receive £18,000. The defenders also referred to awards in previous cases in support of their valuation.

There was no dispute that the deceased had enjoyed a happy and settled family life and that the family relationship had been a close one. The deceased had a promising career as an electrician and had begun working away from home regularly. The dispute between the parties about the valuation of the awards stemmed from a long standing concern about the inconsistency between awards made by juries and those made by judges sitting alone.

Decision

The judge decided to award £42,000 to each of the deceased’s parents with interest on 50% of that sum at 4% a year from the date of the accident and to award £22,500 to the deceased’s brother with interest on the same basis.

The judge had to determine what could be regarded as “just compensation”, for the loss of society, in this case principally the grief and sorrow, which the deceased’s relatives had suffered. It was agreed that there was no basis for distinguishing between the deceased’s parents in this regard and that his brother’s award should be lower than that made to his parents. This was in line with a reasonably well established hierarchy of awards accepted by the courts over a long period.

In reaching her decision, the judge acknowledged that it had been made clear in the case of Hamilton v Ferguson Transport (Spean Bridge) Limited (2012) SC 486 that “previous jury awards must be treated with great caution, just as previous judicial decisions are to be seen as having made awards that ‘markedly undervalue’ loss of society claims”. As there were no recent comparable jury awards, the judge’s starting point was a comparable judicial award. Although it was accepted that there was a very close family relationship in this case, in the years before the accident the deceased had started to become more independent. He had been working away from home and had formed a serious relationship so it seemed likely that, eventually, he would have left the family home and started his own family.  However, the claimants had lost the years of the deceased’s companionship and the close relationship that was likely to have continued if the accident had not occurred.

Comment

Claimants in personal injury actions raised in the Court of Session can choose to have their claim heard by a jury, rather than by a judge sitting alone.

There has been a long standing issue over the significant difference in the level of awards of damages made by juries compared to those made by a judge sitting alone as jury awards have tended to be much higher. Traditionally, juries were given very little guidance on how to determine an appropriate level of award. In Hamilton v Ferguson Transport (Spean Bridge) Limited (2012) SC 486 the Inner House of the Court of Session set out guidance with a view to narrowing the gap between the two types of awards and reducing the lack of consistency so far as possible. The Inner House directed that judges should have significantly more regard to the level of jury awards, especially when those awards established a pattern, and juries should be given more detailed guidance by the presiding judge on the level of damages that might reasonably be awarded.

The awards made by the judge in this case are significantly higher than previous awards made by judges sitting alone to the siblings and parents of adult children. The Inner House acknowledged in Hamilton that it would take some time for established practice to alter in line with the new guidance and the decision in this case is a further step in that process, which will undoubtedly see an increase in the level of loss of society awards.

Contact

For further information please contact Catherine Hart, Associate on 0141 228 8000

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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