In Manson v Henry Robb Ltd [2017] CSOH 126 the Court made awards under s4(3) of the Damages (Scotland) Act 2011. Lord Clarke's careful decision offers useful guidance on both the likely level award in fatal claims and also the Court's attitude to issues such as life expectancy, family relationships, the duration of the deceased's suffering and comparison with awards in other cases.
In this case, the deceased died of mesothelioma ten months after diagnosis. He was 81 when he died and was survived by his widow aged 79 and his two sons aged 55 and 59. The deceased's life expectancy, in the absence of having developed mesothelioma, was 5.8 years. The family was unusually close; the two sons had never left home and before their father's death, had spent much of their time with their parents.
The level of damages for the family's 'loss of society' claims under Section 4(3)(b) of the Damages (Scotland) Act 2011 was the substantive issue in dispute at proof.
Lord Clarke accepted the defender's argument that where there is shorter life expectancy, the award should be lower. He commented that a widow in her sixties could lose much more than a widow in her 80s and that the same principle applied to a child losing a parent at 40 rather than at 60. He concluded that, if all else were equal, where there was shorter life expectancy; 'some significant differentiation in qualification falls to be made'
In considering the distress caused by the deceased's suffering before death, Lord Clark observed that, 'the length of time during which this was endured was relatively short compared, for example, with a case where a person witnesses a long drawn out and painful illness of a close relative.' He concluded that the pursuer's loss of society awards should be reduced to reflect that fact.
It was accepted by the pursuer and confirmed by Lord Clarke that a tariff approach to fatal awards was not appropriate. In doing so, Lord Clarke reinforced the principle that each case must be determined on its own facts and that account must be taken of the particular circumstances of each set of family relationships. He then applied this approach by electing not to rely upon previous jury awards when assessing damages; although he accepted that he must take account of jury awards as well as those made by judges, it was only appropriate to do so where the circumstances were comparable to those in the instant case.
Lord Clarke ultimately awarded the widow £75,000 and each of the sons £30,000. He commented that he was 'Doing the best I can, having due regard to [the] range of awards and the particular facts of the present case". Taking all of Lord Clarke's comments into account, the awards may appear a little high. It seems that ultimately the exceptionally close family relationships weighed heavily in the balance. This outcome simply serves to underline just how difficult these claims are and, while useful guidance can be drawn from the decision, valuation and settlement of fatal claims will continue to be challenging.
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