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Significant damages awarded to three grandchildren following death of grandfather

At the end of July, the decision was issued in the case of Stuart and others v Reid and the National Insurance and Guarantee Corporation Limited, in which awards were made to three grandchildren following the death of their grandfather in a road accident.

Background

The Claimants’ grandfather suffered fatal injuries in an accident in May 2011.  He was struck by a car driven by the First Defender and died three days later at the age of 60. The claims for damages on behalf of the deceased’s widow and his three adult children were settled, but the parties could not agree on the value of the claims for his three grandchildren.  At the time of the accident, the deceased had two granddaughters aged five and three. His grandson was not born until five months later.

In assessing the value of their claims, the Claimants referred to the awards made in McGee v RJK Building Services Limited 2013 SLT 428, in which the judge had awarded £20,000 to a nine year old granddaughter and £25,000 to a 17 year old grandson, to mark the closeness of the relationship each had enjoyed with their grandfather. The Claimants in the present case argued that each grandchild should receive £25,000 as the deceased had been exceptionally close to his granddaughters, and there should be no distinction in the award made to his grandson, as he had been deprived of the opportunity to get to know his grandfather at all.

In contrast, the Defenders argued that the decision in McGee was not compatible with previous awards and suggested that each granddaughter should receive £4,000 and the grandson should receive £2,000.  

Decision Following Proof (Trial)

The Judge noted that the deceased and his wife ran a guesthouse business. Both were devoted to their family and were closely involved in their granddaughters’ upbringing. They spent six days a week with them, picking them up from their home and taking them back to the guesthouse or to nursery, playgroup or school. They went on holiday with their children and their families. The evidence established that the deceased had had a close and loving relationship with his granddaughters and that he had been “over the moon” at the prospect of becoming a grandfather for the third time. The parties had agreed that, if the accident had not occurred, the deceased would have had a life expectancy of 15 years and that he had suffered from various medical problems. He did, however, have an active lifestyle, running the guesthouse with his wife. Both granddaughters had been badly affected by the death of their grandfather.

The Judge made reference to the legal framework under which the Court could make an award to relatives of a deceased person in terms of the Damages (Scotland) Act 2011.  Under section 4(3)(b), there were three heads to consider:

  • an award to reflect the distress and anxiety endured in contemplation of the deceased’s suffering before death;

  • an award in respect of grief and sorrow caused by the death; and

  • an award for loss of the non-patrimonial benefit that the relatives might have expected to derive from the deceased’s society and guidance. 

In this case, the third head of claim was most relevant. The Judge noted that there was no definitive guidance on the application of the 2011 Act, although a number of judicial authorities provided assistance. Reference was made to the decision in Hamilton v Ferguson Transport (Spean Bridge) Limited 2012 SC 486 in which the Inner House of the Court of Session commented on the disparity in the level of awards made by judges in comparison with those made by juries – traditionally, jury awards tended to be higher than those made by judges. In addition, the court indicated that, in future, juries should be given guidance on the range of awards that would be reasonable to assist them in reaching a decision on the level of awards to make.

The Judge in the present case also considered information available about jury awards in fatal cases, including the case of Kelly v Upper Clyde Ship Builders 29 July 2012 in which a jury made a number of awards following the death of an 82 year old former shipyard worker from mesothelioma 10 weeks after diagnosis. If he had not contracted the disease, the deceased would have had a life expectancy of 4 years. The jury awarded £8,000 to each of two grandchildren aged 14; £4,000 to a grandchild aged seven and £1,500 to a grandchild aged two. This was the first jury award made after the Inner House issued its decision in Hamilton.

In reaching his decision, the Judge in the present case took into account a number of factors:

  • the very close bonds of love and affection that existed between the deceased and his granddaughters;

  • his material involvement in their upbringing;

  • his conclusion that the deceased would have enjoyed a similar relationship with his grandson; and

  • if the accident had not occurred, the deceased would have been expected to live for a further 15 years

He also bore in mind a number of other points made on behalf of the Defenders:

  • it was difficult to gauge precisely how much time the deceased had spent with his granddaughters given that he was also engaged in running his guesthouse business;

  • his health may have deteriorated and that would have affected his quality of life;

  • very young children have a degree of resilience.

The Judge indicated that he was hesitant to place too much reliance on the decision in Kelly because, as yet, there was no pattern of jury awards following the Inner House’s decision in Hamilton. On the other hand, the decision in McGee had been argued in detail and the Judge considered that he should adopt a similar approach.

On that basis, he made an award of £18,000 to the deceased’s elder granddaughter. She had known her grandfather for the whole of her young life; was significantly affected by his death and was more conscious of being deprived of his company. £16,000 was awarded to the younger granddaughter, who was very young at the date of death and not affected by it at that time in the same way. £14,000 was awarded to the deceased’s grandson as it was accepted that he had been deprived of his grandfather’s society and guidance for 15 years. A third of the awards to both granddaughters were allocated to the past, but, as the grandson was still very young, there was no basis for allocating any part of his award to the past.  

Comment

The awards in this case will be of significant interest in a number of respects. There are few reported Scottish decisions on awards to young grandchildren following the death of a grandparent. In addition, the level of the awards and those in other recent fatal cases suggests that an effort is being made to close the gap between judicial and jury awards which was highlighted in Hamilton.

As the Judge in the present case pointed out, it is not possible to conduct a “mechanistic” exercise in determining how much to award under the Damages (Scotland) Act 2011 – each case has to be evaluated on its own particular circumstances, but it is useful to have an indication of the factors which the court considers significant in assessing damages in fatal claims and the weight attached to these.   

While it may still be too early to suggest that there is a pattern in awards following the decision in Hamilton, the level of awards to grandchildren made over the last couple of years can be seen to have increased significantly.

Link to decision.

Contact

For further information please contact David Stevenson, Partner at david.stevenson@dwf.co.uk or +44 (0) 141 228 8124

By Catherine Hart

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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