Nicola Edgar looks at a recent case on the damages regime for wrongful death.

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 George Edward Manson & Others v Henry Robb Limited (2017) CSOH 126 would provide some much needed certainty. However, the decision by Lord Clarke, 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.

The Law

Close relatives of an individual who has died as a result of negligence can claim damages for Loss of Society under Section 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.

Recent Decisions

In recent years, awards made by the judiciary have increased. Awards made by juries, however, have been increasing at a greater rate, most notably in the case of Claire Anderson & Ors v Brig Brae Garage Limited 2015 and, more recently, in the case of Hamish Stanger & Ors v Flaws & Proctor 2016. In Stanger, the jury awarded £120,000 to the widower (aged 72 at trial), £50,000 to each of the deceased’s sons (aged 46 and 49 at trial), and between £15,000 - £20,000 to the deceased’s three teenage grandchildren.

Manson v Robb Ltd

The recent decision of Lord Clark in George Manson & Ors v Robb Ltd, however, is inconsistent with these recent jury awards and will likely assist defenders when attempting to restrict the escalating levels of settlements in these types of cases.

George Manson died as a result of mesothelioma 7 to 10 months following his diagnosis. Claims were brought by his widow (age 79) and his two sons (age 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 forties, and the deceased was in his sixties.” 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 defender 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 5 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 upon 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 4 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 assumes 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 on 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 they 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.