Robyn Keay

The relatives of a young man who was fatally injured whilst operating a cherry picker have been awarded a total of £315,000 in damages in the Court of Session in the recent case of Robert McArthur & Ors v Timberbush Tours Limited & Anr, [2021] CSOH 75.  The case was heard by Lord Armstrong.

The pursuers were the deceased’s parents, half-sister and stepfather. The deceased was 26 years old when he was involved in an accident whilst in the basket of a cherry picker. As he was working, a coach collided with the cherry picker, leading to fatal injuries. Liability was admitted, with quantum and contributory negligence remaining in dispute between the parties. 

Parties’ arguments

The family’s evidence was that they had a particularly close relationship with the deceased. The deceased’s parents, although separated when the deceased was young, had shared custody of him. The deceased’s stepfather had been involved in the deceased’s life since he was nine, and the deceased had been particularly close with his half-sister, who was 14 years younger than him. 

The family’s submissions highlighted the closeness of the family members with the deceased, his young age and the particularly traumatic events that led to his death. The family argued that awards of damages in jury trials should be considered by the court when assessing the level of damages that should be awarded to family members in fatal claims. Given the substantial impact that the deceased’s death had had on the family, the awards to be made should be at the higher level of the bracket for awards under the Damages (Scotland) Act 2011. The family also argued that that there should be no finding of contributory negligence on the part of the deceased. 

The coach company’s legal team argued that, whilst decisions in previous jury trials could be considered, the level of compensation was at the discretion of the court. The deceased had moved away from his family to work abroad and then to move to mainland Scotland from the family home in the Islands. The deceased spent increasing amount of time with friends rather than with family. The family’s relationships with the deceased were not of such an extraordinary nature as to merit an award from the upper level of the bracket of awards. The defender also argued that contributory negligence should apply. They argued the deceased was working in an unsafe manner, and on that basis, he had not taken his own safety into appropriate consideration. A 40 per cent reduction of any awards was sought by the defender.

“Extremely close bonds”

Lord Armstrong noted that it had been settled following the decision of Hamilton v Ferguson Transport (Spean Bridge) Ltd [2012 SC 486] that jury trial decisions were to be considered, as well as past judicial decisions, when deciding on the level of awards to be made for loss of society claims.

It was accepted that the deceased had “spread his wings”, which would be expected of someone as his age. However, he accepted also that the deceased had remained close to his family throughout and there were “extremely close bonds between both parties and their son.” Taking all of this into account, he awarded £100,000 was awarded to each of the deceased’s parents.

Lord Armstrong also found that there was an exceptionally close bond between the deceased and his half-sister and stepfather, and that his death had had an especially significant impact on their lives. Damages of £45,000 were awarded to the deceased’s half-sister and £70,000 to the deceased’s stepfather.

As well as the loss of society claims, there were other damages awarded, including £5,000 in damages for transmissible solatium, taking into consideration the extreme pain and suffering that the deceased’s multiple injuries would have caused him prior to his death.

Lord Armstrong accepted the family’s submissions that the deceased had been working on the basis of instructions given to him by his employer and, in those circumstances, made no finding of contributory negligence.

Conclusion

This case highlights that previous awards from jury trials can, and will continue to, have a significant bearing on a Court’s assessment of the appropriate level of damages to be awarded for loss of society claims in fatal cases. Whilst the assessment of damages to be awarded will depend on the facts and circumstances of each case and the closeness of each familial relationship, there is suggestion from this case, and general trends of late, that awards by the Court for these claims may be higher than they once were.

Robyn Keay is a senior solicitor at Morton Fraser