Following our update on the McCulloch decision in June 2020 Lord Armstrong in the Court of Session has handed down another opinion involving awards for loss of society. This most recent decision provides valuable insight into quantifying loss of society claims for a blended family.
WHAT IS 'LOSS OF SOCIETY'?
Loss of society is a specific head of claim, unique to Scots Law, which provides compensation to a deceased's relatives for the loss of that familial relationship. It is similar to bereavement awards we see in other jurisdictions however, in Scotland the range of family members who can make a claim is far wider than, for example, England & Wales, and there is no maximum limit set for compensation. Instead any award made is subject to the specific facts and circumstance and is considered on a case-by-case basis. To be clear, this head of claim is not transmitted pain and suffering (solatium) or loss of financial support or services.
In Scotland these awards can be made by either a judge (including Sheriffs) sitting alone or the quantum (value) can be set by a jury after being charged by the judge. There had been a general trend for juries to make (sometimes much) higher awards than judges but following the case of Hamilton v Ferguson Transport (Spean Bridge) Ltd (2012) greater direction is now given to juries and judges are to have regard to jury awards in order to try to reduce the variation in awards between judges and juries. One of the writers handled his first jury trial as Solicitor Advocate in the well-publicised and subsequently reviewed Thomson Builders case in 2011. It is useful when a detailed decision such as this is handed down by way of authority and guidance for other cases.
FACTS OF THE CASE
The facts of this case are that sadly Michael 'Mikey' McArthur was 26 when he fell from the cherry picker he was working on to the road below, sustaining fatal injuries. His fall was caused when the cherry picker was hit by a tour coach, whose driver Lord Armstrong said, "failed to avoid an obvious hazard". Liability for the accident was admitted.
Mr McArthur was unmarried with no children at the time of his death but his family spoke of a very close, loving, connection between him and his family as well as extended family and friends.
The defenders – coach operator Timberbush Tours and their insurers – admitted liability for the incident but contended that the sums sought by the claimants ("pursuers") – Mr McArthur's Father, Mother, Step-Father and Step-Sister – were excessive.
LOSS OF SOCIETY AWARDS
In their arguments the claimants all discussed their close familial bond with Mr McArthur who, despite travelling solo and pursuing his own life and hobbies maintained a close relationship with his family. Due to that the awards sought by the family were at the upper end of the usual scale. Mr McArthur's Mother and Father both sought £120,000, his Step-Sister (aged 12 at the time of the death) sought £50,000 and his Step-Father sought £70,000.
It is this close familial relationship which the court has particular interest in when considering the value of claims for loss of society. Lord Armstrong made reference to "a remarkable young man who brought people together" with "strong family ties," a "particularly close" relationship with the claimants and whose "his death has had a profound effect" awarding Mr McArthur's Mother and Father £100,000 each, his Step-Sister £45,000 and his Step-Father £70,000.
The decision here reflects the realities of modern family relationships with step-parents and new siblings being considered as well as the fact that young people can go out and start their own lives, but maintain a close bond with family at 'home'.
It is possible in this case that discussions or attempts to settle were made in the background. In high value cases such as these, strategy is important. The Defenders may have utilised a tender - the writers would have certainly lodged one given the admission of liability- but we note the awards made were fairly close to those sought by the Pursuers so as a matter of conjecture it may be that the Tender was below the sum awarded.
This case will take its place in the tapestry of the evolving caselaw on Scottish loss of society. Each case will always be judged on its own facts and merits however, Scottish litigators can refer to this decision when assessing quantum and, in turn, provide more reliable, predicable advice and reserved for insurers and Defenders and negotiate with Pursuer's agents on a more informed basis.
Obviously, we were not involved in this case and whilst, in our view, an appeal is unlikely we will keep an eye out and if there is an appeal, we will report upon the outcome of that.
There are significant differences between the Scottish approach to bereavement awards and the approach in other jurisdictions e.g. England & Wales. Accordingly, this is a specialist area of law, which defenders and their insurers should obtain informed advice upon. The main point of this piece is to flag the decision. There is much to consider in the judgement and we will provide further comment on some of the other issues in further updates to follow.
For advice on Scottish fatal claims do contact us or your usual Brodies contact.