The price of grief

In recent months there has been a dramatic shift in the valuation of bereavement awards. Eight high-profile jury awards in five cases have significantly increased the level of awards in wrongful death cases.

In terms of s 1(4) of the Damages (Scotland) Act 1976, as amended, each qualifying relative is entitled to make a separate claim for “grief and sorrow of the relative 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”. Given that in the previous decade Scots law saw only two jury awards for bereavement, the phenomenon of eight awards in less than four months, with more likely to follow, represents a major step change.

Recent cases

First, in Young v Advocate General for Scotland, 27 October 2010 (unreported), the mother aged 57 and sister aged 29 of a 22-year-old soldier killed in a Nimrod aircraft accident were awarded £90,000 and £60,000 respectively for loss of society. The latter award is particularly significant as it represents the only award for bereavement suffered by a sibling since they acquired the right to claim in 2006.

Young was followed by two further Nimrod cases. In Dicketts v Advocate General for Scotland, 3 November 2010 (unreported), parents aged 62 and 66 were each awarded £98,000 for the loss of their 27-year-old son. In Swarbrick v Advocate General for Scotland, 19 January 2011 (unreported), a mother aged 53 was awarded £100,000 for the loss of her 28-year-old son.

Since the Nimrod cases, two decisions have shown these awards to be unexceptional. In Thomson v Dennis Thomson Builders Ltd, 2 February 2011 (unreported), a father claimed for the loss of his son, James Thomson, aged 26, who was killed when a canister of expanding foam exploded and struck him on the chest, rupturing his heart. Liability was admitted as the canister constituted work equipment within the meaning of the Work Equipment Regulations. In running the case the defenders had perhaps hoped that a jury might be less sympathetic to Mr Thomson, who was suing his own company for a strict liability breach. However, the jury awarded the sum of £90,000 to the father for his loss.

Finally, in Hamilton v Ferguson Transport (Spean Bridge) Ltd, 16 February 2011 (unreported), a 67-year-old retired teacher whose wife was killed on a Highland road as she drove to attend a “thank you” lunch for volunteers was awarded £80,000. Their daughter of 17 was awarded £120,000.

Both Thomson and Hamilton are being appealed by the defenders.

What is the trend?

In his recent article, “A Pattern of Awards – Juries and the Bereaved”, 2011 SLT (News) 37, Andrew Hajducki QC highlighted a number of significant trends. First, juries are willing to award higher levels of damages than ever before for bereavement, and significantly higher awards than judges. Secondly, the recent award levels are remarkably similar. Thirdly, the traditional hierarchy of awards between different classes of claimants has been eroded.

There are two main reasons why juries may be willing to sanction ever higher awards. Premature and sudden death is more shocking to the general public than ever before. The defeat of many fatal diseases in the 20th century, together with the prolonged break from world war, has mercifully made loss through premature death a relative rarity compared with past times.

Secondly, we have what I would call the Tommy Sheridan effect. Juries are not informed and generally not aware of previous jury awards in fatal cases. However, most people are aware of the award to Mr Sheridan of £200,000 for defamation of his character. The appeal is still pending on this decision; however, I suspect that it is one of the few awards to have entered the public consciousness. In addition, the public are bombarded with stories of the large sums earned by some professional footballers and other celebrities. It is perhaps these sums therefore that provide a benchmark for many jury members to judge awards by.

The consistency of the awards is, on the face of it, truly remarkable given the subjective nature of the awards and the arbitrary nature of juries. Counsel and solicitors have traditionally been understandably reluctant to attach any particular significance to an individual jury award. After all, each jury consists of a unique group of 12 individuals who come together to take a very arbitrary decision in order to value the unquantifiable, based on the specific facts laid before them and their own undefined prejudices.

It should not be forgotten that a jury award of five years ago stood apart until last autumn. In Gillies v Lynch 2006 Rep LR 138 a mother was awarded £80,000 for the death of her daughter. For years it was suggested that this could be discounted as a rogue decision based on exceptional circumstances. Medical evidence was led that the mother was stuck in a mental state that her daughter had died six months before. In hindsight the award, £93,000 when inflation is taken into account, is not so remarkable.

Turning to the third trend, the award of £60,000 for a sibling in Young and £120,000 for a daughter in Hamilton presents another dilemma for lawyers. The traditional approach is best summed up by Lord Glennie in Weir v Robertson Group (Construction) Ltd 2006 Rep LR 114: “There is an established hierarchy of awards. An award to a widow is likely to be significantly higher than an award to parents or children of the deceased. There are good reasons for this. The husband and wife will have developed and grown together throughout their marriage, both physically and emotionally. The loss of a spouse will be particularly hard to bear. Within the range of other relatives, much will depend upon age and vulnerability”.

Recent juries do not seem to agree, and I suspect they represent the opinion of the general public. How many of us would not feel the loss of a child, or a young child’s loss of a parent, as acutely as that of a spouse? For most of us the loss of a child is truly the unimaginable.

The willingness of juries to award significantly higher payments to what the judicial system has previously characterised as second-tier claimants will add significantly to the value of the overall claim, due to the recent increase in the categories of those entitled to sue. The definition of “immediate family” who are entitled to claim under s 1(4) has, since 4 May 2006, included:

• the deceased’s spouse or civil partner;
• the deceased’s opposite sex or same sex cohabitant;
• the deceased’s parents and children;
• any person accepted by the deceased as a child of the family;
• any person who accepted the deceased as a child of the family;
• any sibling of the deceased or person brought up in the same household as the deceased and accepted as a child of the family in which the deceased was a child; and
• any grandparent or grandchild of the deceased.

In a footnote to his recent article, Andrew Hajducki also suggested that grandparents and grandchildren who accepted the deceased into their family was “an area which needs to be looked at”.

Effect on judicial awards

The current body of judicial awards suggest damages levels considerably below those of the recent jury awards. In the case of Shaher v British Aerospace Flying College Ltd 2003 SLT 791 the deceased, an adult, only son in a close-knit Muslim family, was killed in a flying accident. The Inner House set the s 1(4) award at £20,000.

Shortly after Shaher came Weir v Robertson Group (Construction) Ltd 2006 Rep LR 114. Following Shaher, the judge awarded a 36-year-old widow £35,000 for the loss of her 34-year-old husband. Thirdly, in Murray’s Executrix v Greenock Dockyard Co Ltd 2004 SLT 1104 the court awarded an adult daughter £10,000 for the loss of her father. These and similar cases have set the benchmark for offers and settlements in cases without juries in recent years. While there have been no decisions by judges dealing with grandparents, grandchildren and siblings since they became qualifying relatives in 2006, the insurers, applying the hierarchy approach, have tended to offer these relatives between £5,000 and £20,000.

Consequently, the sums awarded by juries in the recent cases seem on average to be about four times what can be expected from a judge. This discrepancy is unlikely to stand. The perceived wisdom among lawyers for pursuers has always been to ask from a jury a sum set at a level that the public will consider reasonable, and sufficiently inflated above the judge level without reaching the level that can be appealed for being excessive. The rule of thumb often applied is that a jury award two and a half times what could be awarded by the judge may be considered excessive. It is therefore not surprising that both Thomson and Hamilton have been appealed. The appropriate form of appeal is by way of a motion for a new trial on the basis of an excess of damages.

In addition to these appeals the same dilemma has been presented to the court from a different angle. In a case heard in March in the Court of Session, the pursuers argued that the Lord Ordinary should assess bereavement awards in line with the recent jury awards. The matter, at the time of writing, is still at avizandum. So, on one hand, we will see the Inner House being told that the jury awards are excessive in light of existing judicial awards, and on the other a Lord Ordinary being told that previous judicial awards are inadequate as a result of recent jury awards.

It remains to be seen whether the Inner House will consider the Thomson and Hamilton awards to be excessive. The reasoning of the Inner House in Shaher itself provides us with some guidance. The Lord Ordinary at first instance had set the level of damages at £35,000. While the Inner House felt there were insufficient examples of jury awards at that level, it was conceded by Lord Marnoch: “In the result we find ourselves persuaded that the four bereavement awards made by juries in recent years do disclose a pattern which demonstrates that in this general area judges have indeed become ‘out of touch with awards made by juries in the exercise of their proper function’”.

In the current appeals the Inner House will be faced with considerably more evidence of jury awards than in Shaher. I suspect there will be even more jury decisions to consider by the time the issue is addressed. As we have seen in Shaher, the courts are reluctant to interfere with a general pattern of jury awards. After all, Lord Hope famously stated in Girvan v Inverness Farmers Dairy 1998 SC(HL) 1 at p 7, that the “overall philosophy” of Scottish practice is that the assessment of damages is first and foremost a matter for a jury. However, if the level that juries might be prepared to go to is left unfettered by a carefully calculated sum sued for, are we in the midst of a revolution as opposed to the end? Would a jury, for example, think twice before awarding £250,000 to parents who have lost their only child? At what point will the Inner House control the apparently relentless increase in jury awards?

Practical implications for solicitors

With such a gulf between the sums offered by insurers and, at time of writing, awarded by judges on one hand, and likely jury awards on the other, the litigation of fatal claims in the Court of Session in front of a jury must be the default position for any adviser acting for the bereaved. There are several implications to this.

First, in a significant number of fatal claims the issue of liability will be clear cut and the issue of loss restricted to s 1(4) claims. Therefore, solicitors could expect to receive offers in line with Shaher relatively promptly, and the temptation for some to accept such offers could be significant, especially where the client may not be eligible for legal aid or before-the-event insurance. However, I would caution that such an approach could, unless justified by the particular facts of a case, or the express dictates of the client, be tantamount to flirting with professional negligence.

Secondly, until there is a levelling between judicial and jury awards, the pivotal moment in many fatal claims will be the decision whether or not to seek allowance of issues. Of course, not all fatal claims are suitable for juries. Juries may be harder on contributory negligence issues. For example a judge will routinely discount a claim by 25% for failure to wear a seatbelt, following Gawler v Raettig [2007] EWHC 373 (QB). A jury may be less discerning. Similarly, accepting a lift from someone over the limit may lose the pursuer the sympathy of the jury. Clearly, therefore, agents on both sides would do well to thoroughly investigate and test contributory negligence issues before deciding whether a jury is appropriate.

Finally, agents should be aware of the huge gulf that has opened up between Scots and English law. In England there is a statutory limit of £11,800 for bereavement awards. Also cohabitants are only entitled to claim for either loss of support or bereavement if they had been cohabiting for two years.

Consequently, a fatal claim in England could be restricted to £11,800 whereas in Scotland the claimants could be entitled to hundreds of thousands of pounds. It is a continuing source of wonder how very few English lawyers are aware of the very different approach in Scotland. This is perhaps a concern when it is not unusual for English firms simply to deal with Scottish cases extrajudicially. Another consideration is the potential rise of forum shopping. Many fatal claims may have allowed a choice of jurisdiction, especially where the defenders were domiciled in Scotland. In the recent decision of Young, for example, had the family raised the action against the Ministry of Defence in their native England their award would have been limited to the statutory ceiling of £11,800.

Until such time as the gulf between judicial and jury awards is narrowed, it is likely that in the great majority of fatal cases, seeking allowance of issues in the Court of Session will be the default position. Unless there are compelling reasons for negotiating an extrajudicial settlement based upon judicial levels of damages, or for litigating in the sheriff court, such an approach might be considered to carry unacceptable risk to the adviser’s professional indemnity cover. While the outcome of the first judicial consideration of the current jury trend is still outstanding it is difficult to predict when this difference will be resolved.