In May 2020 Lord Tyre delivered his opinion in Jennifer McCulloch and Others v. Forth Valley Health Boards  CSOH 40. The pursuers were unsuccessful on liability, but the decision provides valuable insight into quantifying loss of society claims for children and, arguably, goes some way to bridging the gap between the historical divergence of awards made by juries and the judiciary.
Mr McCulloch died in April 2012, aged 39, following a cardiac arrest in his home. In the period preceding his death, he had been admitted and discharged from Forth Valley Royal Hospital on two occasions. The action was brought by Mr McCulloch’s widow (also acting as a legal representative of her and Mr McCulloch’s two children), his sister, parents, twin brother and stepson.
The pursuers argued that Mr McCulloch’s death was caused by the negligence of a consultant cardiologist employed by the defenders. They criticised the care given during the second hospital admission and said the cardiologist ought to have prescribed one of two different types of anti-inflammatory drug. It was also claimed that a repeat echocardiogram should have been instructed prior to his discharge and, had these steps been taken, his death may have been avoided.
Though not the focus of this article, Lord Tyre’s opinion provides interesting analysis on several legal arguments pertinent to medical negligence claims: such as the application of the Bolitho test given the conflicting expert evidence. The Court concluded that whilst the failure to instruct a repeat echocardiogram did establish negligence, on the balance of probabilities, there was no evidence that but for this single negligent omission, the death would not have occurred. As a result, the pursuers’ case failed and decree of absolvitor was granted.
Loss of Society
Quantum for most of the pursuers had been agreed in advance of the Proof. Loss of society had been agreed at £120,000 for the deceased’s spouse, £25,000 for his sister, £30,000 to each of his parents, £40,000 to his twin brother and £70,000 for his stepson. Damages for the deceased’s two young children had not, however, been agreed.
Mr McCulloch’s daughter was aged 7 at the date of his death and 15 at the date of Proof. His son was 18 months and 9 at the date of Proof. Statements were lodged which had been taken from Mr McCulloch’s wife describing the relationship that each child had with their father. The daughter had been “a daddy’s girl” and since his death had experienced deteriorating relationships, apathy towards previously enjoyed activities and anxiety causing her to suffer from an eating disorder. Conversely, the son was too young to have any memory of his father and so had never experienced a father/son relationship. The statement also detailed his persisting interaction and sleep problems.
In assessing the appropriate level of awards, Lord Tyre indicated that judges should equally have regard to jury awards in comparable cases. In particular, the Court considered Ryder v Highland Council , where the son (aged 17 at the date of his mother’s death and 21 at Proof) would have been awarded £40,000 had his claim succeeded. However, Lord Tyre distinguished this award as the pursuer in Ryder had reached adulthood by the date of trial – hence, the award did not need to reflect the loss of a parent through all or most of childhood.
Lord Tyre drew the closest parallel with the case of Anderson v Brig Brae Garage Ltd , in which a jury awarded £80,000 to a daughter who was just 6 weeks old when her father died and 3 at Proof. He commented: “Having regard to the circumstances of the two children in the present case…I would have seen no reason to award a lesser sum than that awarded by the jury in Anderson”. Accordingly, had the pursuers been successful, the children would have awarded £80,000 each (with 4% interest from 7 April 2012 until decree and 8% thereafter).
Historically, there has been disparity between awards made by the judiciary and those awarded by juries; with juries tending to award larger sums. The jury in Anderson (referred to above) made the largest award of civil damages in Scottish legal history at £1 million. This lack of consistency often results in difficulties when seeking to quantify these clams.
In 2012, in an attempt to remedy the inconsistency of awards, the then Lord President Hamilton recommended that juries be given judicial guidance on the range of awards; whilst the judiciary were provided with guidance recommending that greater regard be given to higher jury awards. Despite this, the levels of award in subsequent cases have been decidedly mixed; though an upward trend is discernible and far outstrips the level of damages awarded for bereavement south of the border. See our legal update on bereavement awards in England and Wales for further information.
This case is the most recent contribution to the evolving body of caselaw on Scottish loss of society claims. Each case will always be judged on its own intricacies; however, Scottish lawyers can use this decision as a barometer when assessing quantum and, in turn, it affords a greater level of predictability for insurers when setting reserves for similar cases involving children.