There remains a significant difference between the English and Scottish jurisdictions in relation to the treatment of fatal claims. In England , “bereavement” awards are of a relatively low level and it comes as something of a surprise to many English solicitors and claims handlers that the Scottish awards can be of a very significant level.
The case of Audrey Weir v Robertson Group (Construction) Limited from the Court of Session in July this year raises some interesting points for discussion.
In his judgement, Lord Glennie attempts to make sense of the varying levels of awards made in Scotland in recent years to different categories of relatives following the death of a loved one. The basis for these awards is Section 1(4) of the Damages ( Scotland ) Act 1976. This provides for an award to the deceased’s “immediate family” as compensation for (a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before death (b) grief and sorrow caused by the death and (c) the loss of the deceased’s society and guidance.
While many aspects of claims made in fatal cases are capable of agreement, the so called “loss of society” elements remain controversial and are often the subject of litigation. Until recently, the problem was the disparity between awards made in jury cases and those of judges sitting alone. Defenders were able to argue (not always successfully) that jury awards should set no precedent and should be disregarded in subsequent cases. Pursuers’ agents understandably took a different view.
In the 2003 case of Shaher v British Aerospace Flying College, the appeal judges made it clear that the courts should take into account jury awards where there is evidence that the awards form a clear pattern or trend.
In reflecting on Shaher and the fatal awards made in the Scottish courts since then, Lord Glennie stated that there is an established hierarchy of awards. Compensation to a widow should be higher than that awarded to parents of the deceased or children. This is in recognition of the fact that a husband and wife will have developed and grown together, physically and emotionally, throughout their marriage. In Shaher, the parents of an adult child were awarded £20,000 each for the loss of their son’s society in terms of section 1(4). Clearly, Lord Glennie felt very strongly that the widow in the Weir case should be awarded a figure much higher than this. In the event, the 36-year-old widow (who had been married to the deceased for 15 years) was awarded £35,000. Lord Glennie was impressed by her evidence of a happy marriage.
He took the opportunity to comment on other awards which might be made. In reviewing the awards made to widows in cases where the deceased has suffered a long and debilitating illness, for example mesothelioma cases, he commented that awards made to elderly widows would be less than those made to younger widows in sudden death cases. A younger widow should expect to have her whole married life ahead of her.
Lord Glennie thought that the awards made to other relatives should reflect their age and vulnerability. For example, where a young child loses a parent, the award should be higher than that of an older child who is less emotionally dependant on that parent.
Lord Glennie’s approach may result simply in there being more certainty and less litigation in relation to fatal awards in Scotland . However, the cases of Shaher and Weir also serve to emphasise the significance which the courts will put on any evidence suggesting a close and happy relationship between the claiming relative and the deceased. It is likely therefore that Pursuers’ agents will continue to challenge the suggested hierarchy and that these claims will continue to be controversial for some time to come.
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Louise Hay
(Information posted in September 2006 and may not have been updated at time of reading).