KNOWLEDGE

Fatal Accidents: What Damages can be Claimed?

Morton Fraser Chair Jenny Dickson
Author
Jenny Dickson
Chair
PUBLISHED:
21 July 2020
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category:
Blog

What is a "Loss of Society" Award?

"Loss of society" is a financial award intended to compensate family members for the death of a loved one. The award is given only when the death was wrongful i.e. where there was negligence involved on the part of another, for example in an accident or because of professional negligence. This award applies to Scotland only.  England has its own award known as a bereavement award.

It compensates family members for the stress, anxiety, grief, sorrow and loss of society that relatives endure on the wrongful death of a loved one.  There are other damages that family members may also claim, which are not covered by this article, such as the loss of the financial support of the deceased and the funeral costs.

 

Who can claim?

Scots law, under the Damages (Scotland) Act 2011, section 4 (3) (b) gives "immediate relatives" the opportunity to claim. In no specific order this includes the deceased's:

  • Spouse, Civil Partner, Cohabitant
  • Parent or Step Parent
  • Children or Step Children
  • Sibling or Half Siblings
  • Grandparent or Step Grandparent
  • Grandchild or Step Grandchild

What would a claim be worth?

This is a long debated question which is often subjective to the particular circumstances surrounding each case. The answer to this question may also change depending on who is asking this question. In the Manson case in 2017 the deceased died of mesothelioma.  Mr Manson's widow (they had been married for 60 years) was awarded £75,000 by a judge, whilst his two adult sons (in their 50s) were each awarded £30,000.  This was quite different to awards made a year earlier, in the Stanger case in 2016.  In this case the widower (72 years old) was awarded £120,000 by a Jury and each of the deceased's sons (in their 40s) were awarded £50,000.  Three teenage grandchildren were awarded sums between £15,000 and £20, 000. These two examples seem inconsistent with each other in terms of the amount children receive. It is not clear if this is simply reflecting the differing approaches of judges and juries or if the age of the deceased's relatives affects the amount awarded.

A number of factors always come into play when considering these awards: which relative is making the claim; how close were they to the deceased; is it a Judge or Jury hearing the case.  

Recent decisions

Following on from Manson and Stranger the case of Andrews in 2019 might serve as an indicator of a pattern.  The deceased was 77.  Interestingly, Lord Pentland chose to award the same amount to the surviving partner as in Manson: £75,000. This could be indicative of a pattern of awards in cases decided by judges where the deceased is older.

An interesting case that gives an insight into the value of claims for children on the deceased, is that of McCulloch. This is a recent decision from earlier this year.  You can read about the facts of the case in this article. The case was raised by relatives of the deceased, Neil McCulloch, who died after a cardiac arrest following his discharge from hospital. The premise of the case was that the death had been caused by one of the doctor's failure to instruct an echocardiogram prior to discharge. It was found that the deceased's death could not have been prevented by this echocardiogram and whilst the outcome was tragic there was no basis on which it could be said that this treatment or any other treatment would have prevented the death.

Lawyers may be particularly interested in the opinion by Lord Tyre on loss of society awards. The deceased's children were 1 and 7 years old when the deceased passed away.   As the case failed, they received nothing.  However, Lord Tyre's opinion was that had their case succeeded, the court would have awarded the children, now aged 15 and 9, £80,000 each.

Conclusion

In the absence of any other recent decisions to unveil a pattern of what the value of claims might be, this case is perhaps indicative of the approach the court takes to younger children of the deceased, who are going to miss out on more experiences with their loved one, than those children who are middle aged. This is a tricky area of law, where courts are asked to put a monetary value on what the relationship between the deceased and their relatives would have been.

Whilst the value of awards in McCulloch to younger children provide a seemingly clear indication, this is quite a large difference from previous cases such as Manson. This may be because the causes of death in both cases were different, as were life expectancies. However, what does seem apparent is that the awards for children seem to reduce as the ages of children increase. This suggests that the court, regardless of whether there is a judge or jury awarding, will take into account the type of experience and society that each relative would have missed out on. 

It will be interesting to see how other cases may contribute to the development of this area in the future, and what effect that may have on the level of awards for family members.

 

Should you wish to speak with any of our experts, please don't hesitate to get in touch with our team. 

Disclaimer

The content of this webpage is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser LLP accepts no responsibility for the content of any third party website to which this webpage refers.  Morton Fraser LLP is authorised and regulated by the Financial Conduct Authority.