Parents of fatal RTA victim fail in challenge to damages awards

Judges in the Inner House of the Court of Session refused the reclaiming motion by James Currie and Margaret Currie, who were awarded £42,000 each after their 25-year-old son Gavin was killed in the road traffic accident on Main Street, Neilston, in December 2011.

The respondents Esure Services Limited, as insurers of the driver of the car, had admitted liability and damages were awarded to the parents for “grief, sorrow and loss of society and guidance” suffered by them as a result of the death, but they challenged the level of the awards.

The Lord Justice Clerk Carloway (pictured), Lady Smith and Lady Dorrian heard that in seeking damages of £65,000 each before the Lord Ordinary, the reclaimers had referred to section 4(3)(b) of the Damages (Scotland) Act 2011 and said the starting point for assessing damages was the decision in the 2012 case of Hamilton v Ferguson Transport.

The five-judge bench in Hamilton attempted to narrow the disparity and eliminate the inconsistency between judge and jury awards and advised that there ought to be changes in jury trial practice whereby the judge would henceforth provide the jury with a spectrum within which their award might lie – albeit that this would not be binding upon them.

It was accepted that an award equivalent to the jury award in the Thomson case, heard together with Hamilton, was too high and it was submitted that the most similar judicial award to the present case was that in the 2003 case of Shaher v British Air Space Flying College Ltd.

It was suggested that in the circumstances £65,000 as the “updated mid-point” between Shaher and Thomson was “appropriate”, but the Lord Ordinary, Lady Wise decided to award each of the parents £42,000, an amount representing, broadly, a 50 per cent uplift on the updated award in Shaher.

However, the reclaimers focused upon alleged errors by the Lord Ordinary, which might, if made out, open up the awards for review, though there was no discrete point that the awards were inadequate.

The grounds of appeal were that the Lord Ordinary had erred in stating that the Lord President in Hamilton had made clear that previous jury awards must be treated with “great caution”, rather than as was said by Lord Hamilton, with “appropriate caution”.

It was also argued that the Lord Ordinary erred in her interpretation of the opinion of the Lord President in Hamilton by concluding that the court had regarded the award made in Thomson as “excessive”.

However, the respondents argued that the Lord Ordinary had approached the case correctly on the basis of the submissions made to her.

Both parties had submitted that what was required was an uprating of the closest judicial award and that is what the Lord Ordinary had done. It was this exercise which had provided the arithmetical basis for the £42,000 and not any consideration of the old 100 per cent rule, in so far as it was applied to the Thomson award, it was submitted.

The respondents maintained that the Lord Ordinary’s approach of uprating Shaher by 50 per cent was “perfectly reasonable” and the awards made were not “wholly unreasonable or clearly excessive”, but “comprehensively, logically and clearly reasoned”.

It was further submitted that the reclaimers’ criticism of the Lord Ordinary’s use of the adjective “great”, as distinct from “appropriate”, before “caution” involved creating a distinction of no meaning or effect.

Delivering the opinion of the court, the Lord Justice Clerk said: “In light of the submissions made to her, the court does not consider that any criticism of the Lord Ordinary’s approach is well founded. It was implicit in her reference to the dictum in Hamilton, that judges had ‘markedly undervalued’ loss of society awards, that the Lord Ordinary was aware that judges required to view such claims as requiring greater awards and, in that sense, to treat them more seriously.

“She had been asked by the reclaimers to uprate the award in Shaher to take into account the higher levels of jury award to which the Lord President had alluded in his remarks on the judicial undervaluing of loss of society claims. This is what the Lord Ordinary did, albeit not to the level requested by the reclaimers.”

Lord Carloway added: “Ultimately, if the court were asked whether, having regard to comparable jury awards, the awards were manifestly outwith the appropriate range, it would be bound to answer that question in the negative. In all these circumstances, the reclaiming motion is refused.”