Valuing loss of society: an elusive consistency

For a number of years the appropriate level of damages which should be awarded to relatives following the wrongful death of a loved one has been the subject of much discussion and comment. There has historically been a wide gulf between awards made by the judiciary and awards made by members of the public sitting on a jury, with juries awarding far higher sums. This lack of consistency in awards often results in difficulties when advising clients, whether they be pursuing or defending claims. Accordingly, practitioners welcome any guidance from the judiciary on this uncertain area of the law.

It was hoped that the recent case of Manson v Henry Robb Ltd [2017] CSOH 126 would provide some much needed certainty. However, the decision by Lord Clark, whilst being welcomed by insurers due to its attempt to restrict the level of awards, raises further questions in assessing the appropriate level of damages in these types of claims.

In this article, I intend to summarise the decisions in recent years in an attempt to identify whether there is an indication that the law will settle in this area, or whether it is set to become more complicated still.

The right to claim

Close relatives of an individual who has died as a result of negligence can claim damages for loss of society under s 4(3) of the Damages (Scotland) Act 2011. The damages are intended to compensate family members for the distress, anxiety, grief and sorrow caused by the wrongful death of their loved one, together with the loss of their guidance. In terms of the Act, relatives who can make a claim include the partner, parent, child, sibling, grandparent or grandchild of the deceased, or someone accepted and treated as one of those relatives by the deceased.

Judge or jury

Historically, juries have tended to make higher awards for loss of society than the judiciary, particularly in circumstances where they empathise with the pursuer(s). A jury may place greater emphasis than a judge on issues of credibility, inconsistency or contributory fault. They may also be influenced by dislike of a witness, and ultimately will decide the award on the basis of what they think is right, rather than drawing on years of legal training.

Following the opinion of Lord President Hamilton in the conjoined appeals of Hamilton v Ferguson Transport (Spean Bridge) Ltd; Thomson v Dennis Thomson Builders Ltd 2012 SC 486, the law relating to jury trial procedure was changed in an attempt to narrow the growing disparity between lower judicial awards and higher jury awards. In order to ensure more consistency, Lord Hamilton recommended a jury be given guidance as to the appropriate level of award in each case. The court also provided guidance to the judiciary that greater regard should be given to higher jury awards when deciding the appropriate award in a case.

Increased judicial awards – greater consistency?

A number of judicial decisions over the following couple of years suggested that the judiciary were following this guidance as higher awards were consistently being made.

In McGee v R J K Building Services Ltd 2013 SLT 428, Lord Drummond Young awarded the widow of a 71 year old man £80,000, his two adult daughters £35,000 and his son £27,500. His grandchildren were awarded between £2,500 and £25,000, with the higher awards being made to the deceased's older grandchildren who saw him as a father figure. This case provided a benchmark for several others, including Gallagher v S C Cheadle Hume Ltd [2014] CSOH 103 and McCarn v Secretary of State for Business, Innovation & Skills [2014] CSOH 121, in which similar awards were made to the widow, children and grandchildren of the deceased.

Accordingly, at this stage, it appeared there was some consistency in the levels of awards being made to surviving spouses, children and grandchildren.

Furthermore, there appeared to be consistency in the level of awards being made by the judiciary and the jury to the parents of a deceased. In Young v McVean 2014 SLT 934, Lady Rae at first instance awarded £80,000 to a mother following the death of her 26 year old son who was killed by a passing car when he was walking along the pavement. This was the highest judicial award of its kind to date and the judge took into account the particularly close relationship the single mother had with her son which was in part due to the tragic death of her husband when her son was young. It was upheld on appeal, with the court emphasising that the judiciary must have regard to increasing jury awards. In the unreported case of Scott v Parkes, in May 2014, a jury awarded £86,000 to the 51 year old mother of a 19 year old son who was killed in a road traffic accident. In this case, the pursuer was also a single mother with a particularly close relationship to her son and following his death, she suffered a prolonged grief reaction.

However, in Currie v Esure 2015 SLT 64, the pursuers were unsuccessful in appealing a judicial award of £42,000 made to the parents of a 25 year old man who was killed after being struck by a car at a zebra crossing. This served to highlight, once again, an inconsistency in approach.

Recent jury awards

To bring this up to date, in the last couple of years there have been a string of jury awards which have been welcomed by pursuers' agents.

In the unreported case of Claire Anderson and others v Brig Brae Garage Ltd (2015), a jury made the largest award of civil damages in Scottish legal history when they awarded £140,000 to the widow of the deceased who died when he lost control of a quad bike that he had been manoeuvring at his employer's premises. The deceased was only 33 when he died. In line with previous awards, the deceased's father was awarded £80,000 and his daughter, who was only six weeks old at the time of the accident, was awarded £80,000.

As required since the Hamilton appeal, the presiding judge, Lady Stacey, issued guidance to the jury as to the level of award which should be made for loss of society. The parameters she provided were as follows:
(a) partner – £100,000 to £140,000;
(b) daughter – £50,000 to £80,000; and
(c) father – £50,000 to £80,000.

The jury awarded the maximum amount which was open to them for each of the pursuers. Defenders have since attempted to distinguish this decision from other cases due to the relative youth of the deceased and the fact that he had a young family. Nevertheless, the award of £140,000 to the deceased's partner is higher than any previous award made by a judge or jury and highlights the continuing trend that juries place a higher value on these types of awards than the judiciary.

Since Anderson, there has been a further jury trial with similarly high awards. In the unreported case of Hamish Stanger and others v Flaws & Proctor (2016), the jury considered loss of society awards for the family of a 64 year old woman who was killed instantly following a road traffic accident. Whilst some family members' claims were settled prior to the trial, the jury required to assess claims for the deceased's husband (aged 72 at trial), two adult sons (aged 49 and 46 at trial) and three teenage grandchildren. Lord Clark provided the following parameters to the jury:
(a) husband – £80,000 to £120,000;
(b) sons – £30,000 to £70,000; and
(c) grandchildren – £12,000 to £28,000.

The jury awarded the maximum figure of £120,000 to the widower, £50,000 to each of the deceased's sons, £15,000 to her 13 and 15 year old grandchildren and £20,000 to her 14 year old grandchild.

In an article by R Milligan QC, “Hamish Stanger v Erland Flaws: squaring the circle between awards by judges and juries”, 2016 Rep B 131-2, the author suggests that, in light of the Stanger decision and looking at all the awards since Hamilton, brackets for likely future awards in “standard” scenarios (i.e. where there are close family relations) are as follows:
(a) loss of a spouse/life partner – £100,000 to £120,000;
(b) loss of a parent – £35,000 to £50,000 (more for younger children);
(c) loss of a child – £80,000 to £100,000; and
(d) loss of a grandparent – £14,000 to £20,000.

Manson v Henry Robb Ltd

The recent decision of Lord Clark in Manson v Henry Robb Ltd, however, is inconsistent with this prediction and recent judicial and jury awards. It will assist defenders when attempting to restrict the escalating levels of settlements in these types of cases.

George Manson died as a result of mesothelioma seven to 10 months following his diagnosis. Claims were brought by his widow (aged 79) and his two sons (aged 55 and 59 respectively). Evidence was heard that the family had an exceptionally close relationship, with the deceased's marriage lasting nearly 60 years and the deceased's sons continuing to live at home with their parents. Despite this being a close family unit, the judge awarded £75,000 to the widow and £30,000 to each son.

Whilst Lord Clark confirmed that the family relationships are particularly important when considering the value of the claim, the age of the deceased, the deceased's life expectancy and the ages of the pursuers also need to be taken into account. In his opinion, he states that the suffering as a result of losing an elderly father “is different from children in a similarly close relationship with a parent where they were, say, in their 40s, and the deceased was in his 60s”. Therefore, he considers the award should reduce with age. This distinguishes these awards from those made in the Anderson and Stanger jury trials.

Lord Clark ultimately agreed with the defenders and held that the loss of society award should be reduced to reflect the deceased's limited life expectancy which, but for the diagnosis of mesothelioma, was reduced by five years from 10.8 to 5.8 years as a result of underlying diabetes and a history of obesity and hypertension. Lord Clark states in his opinion that “some significant differentiation in quantification falls to be made” where there is a shorter life expectancy.

In his opinion, he made it clear that a tariff system should not operate for fatal claims and highlighted the importance of assessing each case on its own merits.

The decision does not appear to be in line with previous awards, and Lord Clark has relied on the deceased's limited life expectancy and the ages of the deceased and the pursuers to justify the reduced award.

The case can be compared to John Kelly v UCS 2012 Rep B 107-6, where the deceased had a residual life expectancy of four years. The jury awarded his widow £40,000, his adult children £25,000 and his oldest grandchild £8,000. The award to the widow is lower to take account of the fact that they lived in separate homes. However, the reduced awards to the adult children assume that the award to the spouse would have been in the region of £60,000, had the relationship been more conventional. This decision is simply evidence that juries will award far lower figures where there was not a close family relationship. In the Manson case, however, it was accepted that the pursuers had a particularly close relationship with the deceased and this should be reflected in the awards.

The future…

Lord Clark's decision in Manson has not provided the clarity many practitioners were hoping for. It will prove useful for defenders, as it serves to highlight the complexities in valuing these types of claims and confirms that the courts will assess each case on its own intricacies and circumstances. Whether we are any closer to reaching consistency between judicial and jury awards is doubtful, and jury awards remain higher. As a result, where appropriate, pursuers' agents will continue to seek jury trials to take advantage of this, although jury trials present their own risks, particularly where a jury do not empathise with the pursuer. It appears that this area of the law remains in a state of flux, and we await further decisions with interest.