14 May 2020

In recent years there has been an upward trend in awards for loss of society made to relatives of a deceased eligible to claim under s.4(3) of the Damages (Scotland) Act 2011. Family members falling within the definition of “relative” under s.14 (1) (a) – (d) of the 2011 Act can claim.

See: http://www.legislation.gov.uk/asp/2011/7/section/14

The level of awards in fatal claims was very recently revisited by Lord Tyre in the case of Jennifer McCulloch & Others v Forth Valley Health Board, 2020, a link to which can be found here.

McCulloch concerned an action for clinical negligence arising out of the death of the 39 year old deceased who died on 7 April 2012 as a result of cardiac tamponade. The pursuers sued the Health Board contending that the death was caused by the negligence of a consultant cardiologist employed by the Health Board. The defenders denied liability.

Ultimately, the case failed and the Court granted decree of absolvitor for the defenders. The case gave rise to complexities on negligence, informed patient consent and causation. However, those are issues beyond the scope of this article, deserving of analysis in their own right.

Prior to proof the parties had agreed the claims for loss of society for the deceased’s wife at £120,000; his sister at £25,000; his twin brother at £40,000; his parents at £30,000 each and his step-son at £70,000. The Court required to determine what the applicable awards would have been had the case succeeded for the deceased’s daughter (B) aged 7 at the time of his death - now age 15 and his son (J), 18 months old at the time of his death - now age 9.

The pursuers argued that, since an award of £80,000 was made to the 6 week old child of a 33 year old deceased in the jury trial of Anderson v Brig Brae Garage Ltd, June 2015, a similar award ought to be made to both B & J.

The defenders argued that an award of £60,000 would have been appropriate but, given the fact that the 13 year old step-son’s claim was agreed at £70,000, (the reasons for which are not explained in the judgment) an award of £70,000 each was appropriate for B & J. The defenders referred Lord Tyre to his own decision in Ryder v Highland Council, 2013 in which, had it succeeded, the 21 year old son of the deceased would have been awarded £40,000 for the loss of his mother. At the time that would have been the highest award to a child. They also relied on awards of £50,000 made by the jury in Stanger v Erland Flaws, 2016 to the deceased’s two sons in their 40s.

The quantum dispute proceeded despite the difference between the parties being £10,000. The fact that the step-son’s claim was agreed at £70,000 may, on one view, have served to undermine the defenders’ arguments. It might be assumed that the deceased’s natural children would likely be awarded more than a step-child unless it could be demonstrated that there were features of the relationships which rendered them comparable, the point being that a step-child may have a surviving natural parent, which would be a relevant consideration in certain cases.

The evidence before the Court was that B had a close relationship with her father, had struggled badly since his death and sadly suffers from an eating disorder and anxiety caused by his death. She had withdrawn from activities that she enjoyed prior to his death and her school attendance had suffered.

J was too young to remember his father. However, he had difficulties accepting that his father was dead, had problems interacting with people and became mute for some time after his father died which, in the Court’s view, was likely due to shock.

Lord Tyre’s starting point was that judges should pay cognisance to awards in jury trials, together with comparable judicial awards. He considered Anderson to be the closest comparable case, commenting that the pursuers in Stanger were considerably older than in McCulloch and although the award in Ryder was lower, in that case the pursuer had reached adulthood and the award did not require to reflect the loss of the parent throughout childhood.

The key passage in his opinion is as follows:

“Having regard to the circumstances of the two children in the present case, as summarised above, I would have seen no reason to award a lesser sum than that awarded by the jury in Anderson. Accordingly, had the pursuers been successful, I would have made awards under section 4(3)(b) of £80,000 in respect of each of B and J.”

The judgment reflects the continuing upward trend in awards for loss of society and could be indicative of a move by the Court to align judicial and jury awards in comparable cases. The inconsistency between judge and jury awards has, in the past, been a feature of fatal claims. Juries have been perceived as being more generous than judges and the inconsistency between judge and jury awards has led to difficulties for both pursuers and defenders in predicting outcomes.

The other point to be taken from the judgment is the emphasis on the award reflecting the loss to the child of the parent through childhood weighed against an adult child who has lost their parent upon entering adulthood. This may serve as a distinguishing feature going forward. One can see that adult children in their 30s – 40s may be awarded less than a 10 year old child.

However, there are difficulties in drawing definitive general principles given that each case requires scrutiny on its own facts. There may also be nuances to be drawn in cases involving say teenagers or those young adults in their early 20s who still live at home with their parents or in cases of older adult children who live with their parents and are devoted to them and their care. This may lead to questions about whether such distinctions ought to be made. For the moment these remain questions for tomorrow’s world.

For more information, please contact Mark Hastings, Senior Associate, mfh@bto.co.uk / 0141 225 5293, or get in touch with your usual contact at BTO.