Legal Commentary: Increased judicial awards in fatal accident cases
Last June a five judge bench of the Inner House addressed the dilemma of the gap between Judge and Jury Awards, particularly prevalent in bereavement awards under S 4(3) of the Damages (Scotland) Act 2011, and sought to provide a solution in Hamilton v Ferguson Transport (Spean Bridge) Limited and Thomson v Dennis Thomson Builders Limited  CSIH 52. In short juries required guidance from the presiding judge as to appropriate awards and judges were expected to increase their awards that were markedly undervaluing claims
In Lydia Kelly and others v Upper Clyde Court of Session 29th June 2012 unreported the new process was implemented. Mr Kelly died aged 82 of mesothelioma arising from his exposure to asbestos at work He was no longer living with his wife. Lady Clark gave the jury a range of figures that they might consider for loss of society awards for the deceased’s widow and adult children. The range suggested for the widow was £40,000-£80,000. The range suggested for the children was £15,000-£35,000. Lady Clark made it clear that the range was simply for guidance and that it was a matter for them what they should award. The Jury awarded £40,000 to the widow, £25,000 for the adult children and between £2,500 and £8,000 for the grandchildren.
18th January 2013 saw the first judicial awards since Hamilton and Thompson. Given the vast majority of bereavement awards are settled without the assistance of a jury the awards have far reaching implications for the value of bereavement claims.
In Catherine Foley McGee and Ors v R J K Building Services Limited  CSOH 10 the relatives of Peter McGee sought bereavement awards relating to his death due to a fall at home. At about 2.30 am the deceased, who was 71, had got up to get a glass of water. Shortly thereafter he fell downstairs. His wife found him at the bottom of the stairs. The handrail fixed by the defenders had come away entirely from the wall.
After proof the Lord Ordinary found for the pursuers as the handrail had been fitted in a wholly inadequate manner. The following bereavement awards were made.
Widow - £80,000
Daughters (aged 44 and 37) - £35,000 each
Son (aged 43) - £27,500
Granddaughter (aged 9) - £20,000
Grandson (aged 17) - £25,000
Granddaughters (aged 13 and 10) - £12,000
These awards are very significant increases from previous judicial findings. Previously from a judge a widow could expect no more than £50,000, adult children £18,000 and grandchildren £6,500. It is also notable that the awards are much closer to previous jury awards, and in excess of or similar to those in the relatively recent Kelly case.
It remains to be seen whether the McGee case is reclaimed. However given the Inner House’s scathing criticism of previous judicial awards the defenders may be reluctant to appeal and risk giving these significant increases the authority of Inner House approval.
Another interesting development was the willingness of the Lord Ordinary to take in to account the specific relationship each party had with the deceased. Given the difficulty in providing meaningful valuations in bereavement awards courts have in the past preferred a blunt axe approach with less regard to specific relationships.
It is likely that insurers will do their best to distinguish the circumstances of McGee and we expect that agents will still require to raise actions in the Court of Session before offers on the scale of McGee are forthcoming.
If you require help and/or would like to talk someone about the circumstances surrounding a fatal accident please call either advice call David Wilson on 0141 566 9410 or Gordon Dalyell on 0131 319 8119.
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