Nicola Edgar

For a number of years in Scotland, 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. A recent English High Court decision highlighted the huge disparity in the sums awarded to claimants in Scotland, compared to those living in the rest of the United Kingdom.

Loss of society - who has a right to claim in Scotland?

In terms of section 4(3) of the Damages (Scotland) Act 2011, close relatives of an individual who has died as a result of negligence can claim damages for loss of society. 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. Relatives entitled to make a claim include the deceased’s spouse, civil partner or cohabitee, as well as their parents, children, grandchildren and siblings. This also includes anyone accepted and treated as one of those relatives by the deceased.

The court considers each case on its own facts and circumstances. Evidence will be heard on the family dynamics to understand the various connections and the strength of the relationships. In this way, the courts take a modern approach, disregarding any preconceived notions of a standard nuclear family and half, step and adopted relatives all have a right to claim.

Bereavement damages in England, Wales and Northern Ireland

This can be compared to the situation in the rest of the UK, where there is separate legislation which provides for bereavement damages. In England & Wales, the Fatal Accidents Act 1976 restricts the categories of relatives entitled to make a claim to the spouse or civil partner of the deceased, a cohabitee (provided they had lived with the deceased for two years), and the parents of unmarried children under 18. If the child’s parents are unmarried, only the mother of the deceased child is entitled to damages. In Northern Ireland, under the Fatal Accidents (Northern Ireland) Order 1977, these categories are further restricted to exclude cohabitees.

The value of the claim

In England and Wales, each relative is entitled to claim £15,120, whilst the sum in Northern Ireland is £15,100. This is in stark contrast to the position in Scotland, where there is no statutory limit on the sum which can be awarded.

In Scotland, the recent judgment of Robert McArthur & Ors v Timberbush Tours Limited & Anr [2021] CSOH 75 provides guidance on the levels of award for these types of claim. Michael McArthur, aged 26, fell from a cherry picker and sustained fatal injuries. Claims were brought for loss of society by Michael’s parents, step-sister and step-father. The court heard evidence of the close and loving connection between Michael and his family. Lord Armstrong awarded his parents £100,000 each, his step-sister (who was 12 years old when the accident occurred) £45,000 and his step-father £70,000. The court acknowledged the realities of the dynamics of modern families. Michael’s mother had remarried, and the deceased enjoyed close relationships with both his father and step-father.

None of these relatives would have been entitled to bereavement damages in England and Wales, given that parents are only entitled to damages if their child is under 18 and siblings do not qualify.

Nevertheless, living in England does not necessarily exclude claimants from awards of damages at this level, as is shown in the recent High Court decision of Haggerty-Garton and Others v Imperial Chemical Industries Limited [2021] EWHC 2924 (QB). This case was the first time an English Court applied Scots law in quantifying damages. Mr Haggerty died as a result of mesothelioma, caused by exposure to asbestos whilst working in Scotland in the late 1970s. Claims were brought by the deceased’s widow, children, step-children, sister and grandchild. Given the exposure took place in Scotland, it was agreed Scots law applied and the family were entitled to make claims for loss of society. The blood relatives’ claims were settled in advance of the trial, with his daughters receiving £50,000 each and his sisters and grandchild receiving £18,000 each. The widow and three stepchildren’s claims proceeded to trial, and the court heard evidence about the closeness of the relationships. Whilst the deceased had only entered into a relationship with the widow shortly before his diagnosis, the court found that they would have stayed together for the rest of their lives. The widow was awarded £115,000, two step-children £40,000 and the third step-child £35,000, given his relationship was deemed to not be as close.

If this case had been governed by English law, only the widow would have been entitled to bereavement damages of £15,120.

Time for change?

The Association of Personal Injury Lawyers is campaigning to change the law in England, Wales and Northern Ireland to bring it in line with the position in Scotland. They are pushing for change in respect of both extending the categories of relatives entitled to claim bereavement damages and the level of damages awarded. Until then, solicitors elsewhere in the UK should consider whether their clients would be entitled to have their damages calculated under the Scottish system. From the claimants’ perspective, no amount of damages will ever bring back their loved ones. At the same time, receiving a more substantial sum serves as an acknowledgement of their loss.

Nicola Edgar is a Legal Director at Morton Fraser. This article first appeared in the firm’s Litigation in Scotland Update 2023 Report.