26 June 2015

Claire Anderson &c v Brig Brae Garage Ltd. 2015. A civil jury has this week awarded the family of a deceased significant awards for loss of society. Asked to consider the value of the Pursuers’ claims on a full liability basis, the Jury considered the deceased's 35 year old partner’s claim to a have value of £140,000 (£20,000 attributable to the past), his 56 year old father’s claim to be worth £80,000 (£10,000 to the past) and his 3 year old daughter’s claim to have a value £80,000 (again £10,000 attributable to the past). The deceased’s daughter was only 6 weeks old when her father died.

The deceased, aged 33 when he died, was killed when he lost control of a quad bike that he was manoeuvring at his employer’s premises on 3 May 2012. The Court heard that although the deceased had not been instructed to manoeuvre the vehicle, he and other employees often did so. They had been provided with no instructions on how to use it and the keys were easily accessible to all employees. He lost control of the bike, hit a wall and died shortly thereafter.

A three day Jury Trial was held in the Court of Session. Liability was disputed by the defenders, failing which, they argued that a high level of contributory negligence ought to apply. After two days of evidence, a jury found that liability had been established against the defenders with the deceased's own contribution assessed at 20%. With regard to quantum, the Jury were only asked to consider the relevant award for loss of society. All other heads of claim had been agreed.

The presiding Judge, Lady Stacey, provided the following guidance to the Jury as relevant parameters for awards for loss of society:

• Partner - £100,000 - £140,000
• Daughter - £50,000 - £80,000
• Father - £50,000 - £80,000

The case is one of only a small number of jury trials since the Inner House appeal decision in Hamilton and Thompson held that guidance ought to be issued to a Civil Jury. In Hamilton and Thompson, the 5 Judge bench held that awards of £90,000 to the father for the death of an adult child and £120,000 to a teenage child for the loss of a parent were held to be “excessive”.

This latest figure of £140,000 in respect of the deceased's partner’s claim is the higher than any previous awards made by any jury or judge for loss of society.

In the two most recent cases of McGee and Gallacher, both spouses were awarded £80,000 by a judge. More significantly, in those cases, the awards made to the adult children of the deceased ranged from £27,500 to £35,000.

The figure of £80,000 in respect of the daughter’s claim, is more than double the highest award made to the children in the earlier cases.

For the father’s award, in the last comparable case of Currie, a Judge awarded the parents of a 25 year old man £42,000 each, almost half of the award made in this case. The award in Currie was upheld by the Inner House and, as such, this latest award perhaps emphasises the gulf that continues to exist between awards made by judges and juries, although it should be noted that even the lower end of the parameters suggested by Lady Stacey exceeded the award made in the Currie case.

This latest decision has significant implications for insurers when reserving and negotiating settlement.

It is not clear whether the decision will be appealed but, unless and until further guidance is given from the Inner House in the near future, uncertainty looks likely to persist in valuing fatal awards.

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