09 September 2021

How much is a life worth? It is arguably unquantifiable and, in many respects, unpalatable to have to ascribe a monetary value for the loss endured by the family left behind on the death of a loved one. Sadly, it is a task that practitioners before the Scottish Courts must contend with on a regular basis when making offers under s.4(3) of the Damages (Scotland) Act 2011, more commonly known as awards for loss of society. This is an award of damages to compensate the relative for distress and anxiety endured by the relative in contemplation of the suffering of the deceased before their death; the grief and sorrow of the relative caused by A’s death and, finally, the loss of such non-patrimonial benefit that the relative might have been expected to derive from their society and guidance if they had not died.

The most recent example of the approach taken by the Scottish Courts can be found in the judgment of Lord Armstrong in McArthur & Others v Timberbush Tours Limited & Another, 2021 - see here.

In McArthur, the deceased was a 26-year-old male operator of a cherry picker. He was killed in an industrial accident in September 2018 when he fell from the basket of the cherry picker which had been struck by the first defender’s vehicle.

Claims were brought by the deceased’s estate, his mother and father, together with his stepfather and his half-sister. The case called for proof on the quantum of the claims and on the question of the deceased’s contributory negligence. The latter aspect is not dealt with here for the sake of brevity. However, the relevant passages in the judgment on this issue can be found at paragraphs 58-60.

The deceased survived 50 minutes from his fall to his death. He had sustained catastrophic injuries and was conscious during this period. The Court held that this would have been frightening, traumatic and painful. It made an award of £5,000 for transmissible solatium. This level of award does not fit well within any of the brackets in Chapter 1 of the JC Guidelines, but on a broad view, taking the deceased’s suffering into account, appears reasonable.

The Court then had to determine the relative strength of the pursuers’ relationships with the deceased and ascribe a monetary value to those relationships and the loss felt by the pursuers.

The evidence bore out that, whilst the deceased had spread his wings and moved to New Zealand for a period of time, and then to mainland Scotland from the island of Rothesay where he had grown up, he was still close with his parents. He was their only son with whom they both had a close relationship. His death appeared to have particularly affected his mother and evidence was led from her treating counsellor on the impact of the accident upon her.

The deceased’s half-sister was 12 at the time of his death. She had a close relationship with her brother and had been badly affected. Evidence was also led from her treating counsellor of the impact of the accident upon her.

Finally, the deceased’s stepfather’s evidence was that he had known the deceased since he was 8/9 years old. Their relationship appears to have been a good one, with the deceased seeing his stepfather on a weekly basis, alongside his mother when he visited the family home.

The table below illustrates the levels of awards sought by the pursuers and the awards made by the Court. The Court considered awards in prior cases and accepted the pursuers’ evidence. The awards reflect the upper end of the spectrum sought. The factors considered were the age of the deceased, the violent nature of his death and the extremely close bonds between the pursuers and the deceased, all of which served to contribute significantly to the impact of his death upon them.

The judgment does not specify the defenders’ arguments on what awards ought to have been made, only narrating the defenders’ position to be that awards at the upper end of the spectrum should not be made. The defenders referred to previous case law where lower awards than those sought by the pursuers had been awarded in broadly analogous cases. They also argued that lower awards should be made to reflect the fact that the deceased had lived abroad, was not as close to his stepfather and the fact that there was a 14-year age gap between the deceased and his half-sister. Plainly, these arguments were not accepted by the Court.

The level of awards made reflects the upward trend of awards in fatal claims in Scotland. It also serves, on one view, to bridge the apparent gap in the level of awards made by juries compared to judges, given that McArthur was heard by a judge sitting alone. In McArthur the Court expressly recognised that since the seminal judgment in Hamilton v Ferguson Transport (Spean Bridge) Limited, 2012, it has been recognised that judges should have regard to awards made by juries in comparable cases, together with judicial awards.

The judgment also demonstrates the difficulty for defenders in valuing fatal claims in Scotland either pre-litigation or prior to proof (trial) in the absence of clear evidence from the pursuers on the nature of their relationships with the deceased. Factors such as disparities in age, the distance between the parties and how often they saw each other will not necessarily be determinative of the level of the award, nor should an assumption be made that an age gap between siblings should necessitate a lower award.

Finally, the judgment reminds us of the impact that objective and independent evidence from treating counsellors / psychologists can have on the view the Court takes of the nature and extent of the loss and the longer-term impact of this, particularly on younger siblings for whom the ripple effects of the loss may be felt into adulthood and beyond.

For more information on this article or any of the issues raised therein, please contact:

Mark Hastings, Senior Associate:  mfh@bto.co.uk / 0141 221 8012