Following the “Nimrod” cases, there have been recent developments in other cases showing a major shift in the valuation of awards for distress, grief and loss of society. Scotland had seen only two jury awards for loss of society in the last decade, but in the last year has witnessed eight awards within four months.
It had been hoped that the “Nimrod” cases would prove to be exceptional given their unique circumstances. However, two subsequent jury decisions have suggested that there may now be a pattern of awards emerging which changes the landscape of the law in this area. In Thomson v Dennis Thomson Builders Ltd, 2 February 2011 (unreported), a father claimed for the loss of his 26 year old son who was killed working for the family business. Liability was admitted. The defenders may have hoped that the jury would have been less likely to make an award in line with the “Nimrod” cases given the father was suing his own business but despite this, the jury awarded £90,000. In Hamilton v Ferguson Transport (Spean Bridge) Ltd, 16 February 2011 (unreported), a 67-year-old retired teacher whose wife was killed in an RTA was awarded £80,000. Her 17 year old daughter was awarded £120,000. The Thomson award and the award made to the daughter in Hamilton are under appeal.
These cases would suggest that judicial awards for loss of society are out of line with what a jury would award. Neither Hamilton nor Thomson featured the emotive and political elements that may have influenced the juries in the “Nimrod” cases, but both followed suit in terms of high awards.
In May 2011, a judicial decision was issued in Bellingham & Others v Todd. Despite the absence of a jury, the pursuers’ counsel argued that the judge should make his award in line with the “Nimrod” cases. While the judge accepted that the assessment of damages is essentially a jury question and the court ought to look to jury decisions for guidance he thought that the “Nimrod” awards had to be looked at with care due to the particular influence that death of young service men may have had on those juries. Nonetheless, he was of the view that judicial awards should be materially increased above the rate of inflation. The widow was awarded £50,000, two younger children £25,000 each, an older adult child £15,000, the parents £15,000 each and a sibling £10,000.
This has been followed in September 2011 by Wolff & Ors v John Moulds (Kilmarnock) Ltd & Another, a fatal mesothelioma case brought by the deceased’s widow, three adult daughters and granddaughter. Considering both judicial and jury awards, the judge indicated that the “Nimrod” awards should be treated with “very great caution” because they appear to be “at best, at the very top of the range of awards which might have been upheld had the verdicts been challenged”. He went on to award the widow and the eldest daughters the same £50,000 and £15,000 as in Bellingham. An award of £18,000 was made to the youngest daughter who still lived at home given her greater reliance on her father’s companionship and guidance. The 13 year old granddaughter was awarded £6,500. This is the first judicial award for a grandchild.
While the two judicial decisions are helpful in providing guidance on what a judge is likely to award for loss of society, they may be of limited practical use as many pursuers’ agents are simply asking the court for a jury trial and negotiating on the basis of an expectation of an award in line with “Nimrod”, Thomson or Hamilton. No judicial decision is binding on a jury and previous cases are not referred to a jury as an indication of what the appropriate level of award should be.
The Future
It is anticipated that the appeals in Thomson and Hamilton will be heard by the end of 2011. It is impossible to predict whether the Inner House will come to a view that the awards are excessive. In any event, if successfully appealed, the cases would simply be referred back to a fresh jury to be heard again. The judges cannot substitute their own award. The question now for insurers and those advising them is how much to offer in an attempt to settle a fatal claim to avoid the risk of a jury award. Pursuer solicitors who recommend that a fatal claim be settled at the level of judicial awards may be open to criticism unless there are persuasive reasons for doing so and therefore it seems likely that, for the foreseeable future, the number of fatal cases in which jury trial is sought will increase, as will the cost of settlement to insurers.
Contact:
Annis Mackay
Posted 12.10.11