Bereavement Damages At Record Level In Scotland

On 03 May 2012, 33-year-old Sandy Haining died as the result of an accident at work.

He lost control of a quad bike, which he was manoeuvring at his employer’s garage premises in Bellshill, Lanarkshire, colliding with a wall.  There were no direct witnesses to the circumstances of the accident.

At the time of his death, Mr Haining lived with his partner, Claire Anderson, and their 6-week-old daughter. They subsequently made claims for compensation, along with Mr Haining’s father.

Liability for the accident was disputed.  Mr Haining had not been instructed to move the quad bike at the time, though it appears that he and other colleagues often did so.  The keys were readily available to all employees.  None of them had received any training or instructions in how to operate the bike.

Court action

The case went before a jury in Scotland’s highest civil court, the Court of Session, in June 2015.  The garage’s insurers argued that the accident was entirely Mr Haining’s fault.  Failing that, they argued, it was at least partly his fault and any compensation should be reduced for contributory negligence.

The claimants succeeded in persuading the jury that Mr Haining should either have been told not to drive the quad bike when getting it out of the garage or shown properly how to do it.  Accordingly, negligence was proved and liability established.

However, the jury agreed with the insurers to the extent that they made a 20% deduction for contributory negligence.

The jury assessed the full liability value of each claim for loss of society (i.e. before taking off 20% for contributory negligence), as follows:

• Partner (aged 35) – £140,000
• Daughter (aged 3) – £80.000
• Father (aged 56) – £80,000

Taking into account other heads of claim apart from loss of society, the total award (before contributory negligence) was just under £750,000.

The most striking aspect of this case is the award of £140,000.  The figure is higher than any previous award – either by a judge or a jury – in respect of a claim by the the ‘widow’ of a deceased.

Why is this significant?

Recent history of ‘loss of society’ compensation

If a close relative dies as the result of an accident, you may be able to claim compensation.

In general, you may have a claim if the deceased was your parent, spouse / partner or child.

The claim can include elements for:

• loss of society (the loss of having that relative’s company and guidance now and into the future)
• loss of (financial) support, and
• funeral expenses

Over the past 20 years or so, the value of claims for loss of society arising from fatal accidents has risen substantially.  Jury Trials in the Court of Session have been instrumental in bringing this change about.  The trend of increasing awards has illustrated the fact that damages levels assessed by judges were increasingly out of touch with what the public considered to be fair levels of compensation.

Insurance companies prefer life to be as certain as possible and they complained that the unpredictability of jury awards was unfair.

Accordingly, a few years ago, the Court of Session introduced a new system whereby judges had to give guidance to juries about the amounts they could award for loss of society.  The judge would provide a suggested range of values to the jury.

In the present case, Lady Stacey, the presiding judge, gave the following parameters to the jury:

• Partner (£100,000 – £140,000)
• Daughter (£50,000 – £80,000), and
• Father (£50,000 – £80,000)

You can see that the jury opted for the highest level in each range in this case.

In a previous article, on our Moray Claims website, we discussed a case (McGee; 2013) in which a judge awarded £80,000 to the widow of the deceased. The claims of the (adult) children in that case were valued at £35,000.

Accordingly, the awards in the Haining / Anderson case are significantly higher.

Contrast with England and Wales

On 17 September 2015, the President of the Association of Personal Injury Lawyers (APIL), Jonathan Wheeler, wrote to The Times newspaper, in support of the mothers of two teenage girls killed in a car crash in England in 2014. They had highlighted the “pathetic” compensation for bereavement provided under the law of England and Wales.  They each received only the statutory bereavement damages of £12,980.

As we have seen, in Scotland, judges (and juries) have discretion to consider compensation awards on a case-by-case basis, with reference to legal precedent and by undertaking a proper examination of the closeness of the relative to the deceased.

In his letter, Mr Wheeler said:

It cannot be right that it is cheaper to kill people in England and Wales than it is to maim them.  The law of damages places a higher value on a badly injured thumb than on a life.  Bereaved relatives receive statutory damages of £12,980 after the wrongful death of a loved one, compared to between £14,000 and £25,000 awarded to someone with a badly injured thumb.

Summary

This case, arguably, sets bereavement damages at record level in Scotland. In reality, compensation levels for loss of society in fatal accident claims are still in a state of flux. It appears that judges’ views on fair levels of compensation in this area remain out of step with those of juries. Members of the public will often place a greater value on a life and relationship than a judge.

We are also into new territory with the changes in personal injury procedure in Scotland, generally. The new Sheriff Personal Injury Court in Edinburgh permits jury trials in actions raised there.

Perhaps the most important word to stress is ‘uncertainty’.

In the case we have discussed, the awards ended up being higher than expected. But, before a different jury, with guidance formulated by another judge, the outcome could have been different.   For example, the widow’s award could have been £100,000 and contributory negligence 50%.  The £112,000 (i.e. £140,000 less 20% contributory negligence) awarded to Claire Anderson could easily have become £50,000 (i.e. £100,000 less 50% contributory negligence).

In other words, jury trials are a bit of a gamble, whether you are the claimant or the insurer. You will have expert lawyers to help you make your decision whether to seek a jury trial or not, but there will always be a significant factor of unpredictability.

How we can help

If you have any questions about an issue raised by this article or about any aspect of our personal injury claims services, feel free to contact us.

All initial enquiries are at no charge and without obligation.

You can contact Peter or Marie on 01343 544077 or send us a Free Online Enquiry. Remember that we are best placed to help you if you live in Moray or North-East Scotland, or if you had your accident in that region. However, we’re always keen to help victims of accidents in whatever way we can.  If we aren’t the best people to help you, we can probably help you find out who is – and can put you in contact with them.