Scottish Fatal Claims and "Loss of Society" Awards – Where are we now?

The statutory scheme for awarding damages for fatal accident claims in Scotland is set out in the Damages (Scotland) Act 2011 ('the Act'). Under section 4(3)(b) of the Act, family members of a deceased person can seek compensation for the emotional suffering stemming from their death, if they died as the result of a third party's negligence. This type of claim is generally known as a claim for 'loss of society'.

The Act entitles a wide range of relatives to claim for loss of society, including individuals who were 'treated' as a member of the deceased's family but were not biologically or legally related to them. There is, in theory, no limit on the sum of money that can be sought for loss of society. The Act does not explicitly state how such awards should be calculated and the value will depend on the individual facts and circumstances of each case. Although "bereavement awards" can be sought in England & Wales under the Fatal Accidents Act 1976 the amount of money that can be claimed is far lower, being fixed by statute, and the pool of relatives entitled to claim far smaller.

The broad nature of loss of society awards, together with an absence of statutory guidance, can make it challenging for insurers to predict what any given claim might be worth. In January 2023 the case of Paterson & Others v Lanarkshire Health Board [2023] CSOH 1 considered the level of damages that should be awarded under the Act and reminds us of the various factors to be considered when seeking to quantify any claim for loss of society as well as providing some further guidance as to how those factors can be applied in practice.

Factor 1: Whether the Potential Award will be Made by a Judge or Jury

Loss of society claims can be determined by a judge or a jury. It depends on whether a jury trial has been sought and granted. Historically there were considerable discrepancies between judge and jury awards with juries expected to make higher awards than judges. The Scottish courts sought to address that discrepancy and while some had expected that to mean jury awards would come down to the level a judge would typically award the award made to the deceased's mother in Paterson (£100,000) equals the highest figure previously awarded to a parent to date for loss of society (a previous award of £100,000 also having been made by a judge to the parents of the deceased in the case McArthur and others v Timberbush Tours Ltd and another [2021] CSOH 75.) Prior to that the highest award made to a parent had been £80,000 in Young v McVean [2014] CSOH 133, again made by a judge. It is worthy of note that in all three cases, the deceased was young and the circumstances of the death particularly traumatic which is reflected in the sums awarded.

Factor 2: Age of the Deceased/Pursuer

Pursuers claiming for the wrongful death of a relatively young family member tend to be awarded more than those whose claim relates to the death of a more elderly loved one. In McArthur the court placed "special significance" on the deceased's relative youth. He was aged 26 at the time. In Paterson, the deceased was aged 30 at the time of her death.

Similarly, case law would suggest younger pursuers are likely to be awarded more for loss of society than older pursuers. In Jennifer McCulloch and Others v Forth Valley Health Boards [2020] CSOH 40, Lord Tyre suggested that younger children who have lost a parent should be entitled to higher levels of compensation than older children, due to missing out on more time with the deceased. In Paterson, the deceased’s two children were aged 13 and 15 at the date of their mother’s death. Each child was awarded £70,000. This is consistent with the awards in McCulloch in which the deceased's stepson, aged 13 at the date his father's death, was also awarded £70,000.

Factor 3: Nature of the Relationship Between the Deceased and the Pursuer

Cases such as McArthur and the English decision of Haggerty-Garton v ICI [2021] EWHC 2924 (QB), demonstrate the importance that the nature of the relationship will play in any loss of society award. In the latter case an English court, applying Scots law, held that, due to having extremely close bonds with the deceased, the pursuers should be entitled to substantial compensation for their loss of society.

Paterson reaffirms this position. In his judgement, the Lord Ordinary described the pursuer as "a most affectionate and dutiful daughter to her beloved mother, " with the deceased's children described as "equally beloved". However, the deceased was noted as being "sadly estranged" from her siblings, the second and third pursuers. When giving evidence the second pursuer struggled to remember the time of year his sister had died, and it was noted there was a 16 year age gap between the deceased and the third pursuer who had not lived with the deceased for very long. Both were awarded £5,000, being very much at the lower end of awards for siblings.

Factor 4: Nature of the deceased's death

Finally, where the deceased has experienced significant pain and suffering prior to death, any loss of society award will likely be higher. In Paterson the Lord Ordinary considered the deceased's mother's “considerable distress and anxiety in contemplation of the deceased’s suffering before her death” noting her grief had manifested in an "extremely physical way", the first pursuer having collapsed when the deceased was taken to hospital. This is consistent with the approach taken in previous cases such as McArthur where the violent manner of the deceased's death was taken into account when valuing the claim.

Final Comments

Following Paterson, it remains the case that quantifying loss of society claims is not an exact science. Indeed, in reaching his decision the judge acknowledged that he took a broad-brush approach to valuing the claim. The value of any potential award will depend heavily on the nuances of the individual case; however, Paterson confirms that the above factors can provide useful guidance to insurers when setting reserves and attempting to predict the extent of any financial liability.