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Predictably unpredictable: Fatal claims in Scotland remain inconsistent and uncertain

Young v MacVean
Inner House, Court of Session
29 September 2015

It had been thought that Currie v Esure (2014) might operate as benchmark for awards in fatal cases in Scotland. That hope for clarity has however been set back by yet another fatal award which has introduced further uncertainty. The recent Inner House (appeal court) decision of Young v MacVean (2015), on almost identical facts, upheld an award nearly double that in Currie.

Background

We discussed Currie in a previous update that reviewed recent fatal awards in Scotland. In Currie the parents of a 25 year old man were each awarded £42,000, and their appeal against that award failed. In Young, the award to the mother of a 26 year old man was £80,000 was upheld on appeal. Clearly the two positions appear inconsistent. 

Comment

The themes of an upward spiral of awards and increasing unpredictability are highly unsatisfactory, but they continue to be part of the landscape in Scotland. However the judges’ comments in Young should lead to the decision being treated with some caution.

The judges in Young noted that courts are expected to decide similar cases in similar ways so "that it becomes possible for parties’ representatives to advise parties as to what would be a likely award, thereby facilitating settlement and thus avoiding unnecessary litigation." Their decision, on the face of it, has achieved the opposite effect.

However, the judges accepted that the first instance award in Young was "high" but so was the hurdle that the appellant insurers had to overcome in order to have the award reduced on appeal. The test on appeal is whether the first instance award was "plainly and clearly excessive". On that test, and while the judges said they would not "necessarily [be] persuade[d]... to make an award at the same figure", the insurers failed.  They also held it was open to the Lord Ordinary to find that “the loss of the deceased had a special significance” given that the death of her son was the third sudden loss of a principal male family member. Related to that and the resultant closeness of her relationship to her son, she had suffered extreme distress at his death and the Lord Ordinary had heard a substantial amount of detailed evidence as to her reaction.

Young can be seen as a marginal and technical appeal decision based more on the question of when to interfere with a judgment rather than the substantive question of the quantification of damages. The judges did not fall over themselves to agree with the amount awarded, and sent strong signals they considered it to be too high. However, previous arguments that Currie was the last word are now unlikely to succeed, and while the award in Young is an extreme case the upward escalator effect continues. 

Contact

For further information please contact Andrew Lothian Head of Casualty and General Insurance in Scotland on 0131 474 2305

By Andrew Lothian

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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