The Damages (Scotland) Act 2011 entitles close family members to make a claim for compensation following the death of a loved one.
The right to make a claim only applies when the circumstances of the death were wrongful. This means that there must have been a negligent act which resulted in the death, for example, where a driver caused a road traffic collision or a doctor provided incorrect treatment.
One element of this claim is for what the legislation refers to as 'loss of society'. Rather than this being an attempt to place a monetary value on a loved one's life, loss of society is intended to provide a financial award to the family member to compensate them for the wrongful death and the impact this has had upon them. It is intended to take account of the stress, anxiety, grief, sorrow and loss of the relationship and guidance they have suffered following the wrongful death of their loved one.
In addition to loss of society, family members may also be entitled to claim for economic losses they have suffered including any loss of financial support and funeral costs.
Who has a right to make a loss of society claim?
The legislation entitles "immediate" relatives of the deceased to make a claim. This includes the following categories of relative: -
• Spouse, civil partner, life partner
• Parent or stepparent
• Child or stepchild
• Sibling or half sibling
• Grandparent or step grandparent
• Grandchild or step grandchild
The entitlement to claim is not restricted to 'blood' relatives and the Courts have extended the right to individuals who were treated as a relative by the deceased, despite there being no immediate family connection. In this way the Courts are taking a modern approach, not restricted by any traditional nuclear family models, and include all adopted, step and half relatives. Children under the age of 16 and unborn babies are also entitled to make a claim with their parent or guardian acting on their behalf.
How much is my loss of society claim worth?
In Scotland, there is no statutory limit on the sum that can be awarded in a loss of society claim. This is in contrast to the statutory limits that are imposed in England, Wales and Northern Ireland - more information on this can be found in this article on bereavement damages.
When considering how much each relative's claim is worth, the Court looks at each case on its own facts and circumstances. Ultimately the compensation awarded will depend on the strength of the evidence presented. Whilst there is no fixed range for these types of award, given the approach taken by the Court, taking account of recent case law there is a range of likely awards for each relative in a standard case, as follows: -
|Loss of a spouse, civil partner, life partner||£100,000 - £120,000|
|Loss of a parent, stepparent||£40,000 - £70,000 (younger children may receive awards at the higher end of this bracket.)|
|Loss of a child, stepchild||£80,000 - £100,000|
|Loss of a sibling, half or stepsibling||£25,000 - £45,000|
|Loss of a grandparent, stepgrandparent||£15,000 - £18,000|
In reaching its decision on the appropriate level of award, the Court will take account of many factors, including those set out below.
It is easy to assume that a child would be awarded a higher amount in damages for the loss of their parent as opposed to their grandparent. However, this is not necessarily the case and evidence will be heard on the family dynamics and the closeness of the relationship. In some family units, a grandparent may play the parental role to a child instead of their parent or maybe an older sibling took on this parental role. The closeness of the relationship is the main consideration for a judge or jury when determining the value of a claim and it is recognised that no two families are the same.
This does not exclude family members who had little or no relationship with the deceased from being awarded compensation. If that family member falls within one of the eligible categories of relative as set out in the Act, they are entitled to make a claim. This is the case even if they were estranged from the deceased or had an ongoing family feud with them, albeit they would likely be awarded a lower sum to take account of the difficulties with that relationship.
Age of the family member and their loved one
Another factor that will be considered is the age of the family member making the claim. This is yet another complex part of valuing a claim, with various approaches being taken in the past.
In Haggerty-Garton & Others v Imperial Chemical Industries Limited 2021, the High Court in England applied Scots law of loss of society for the first time, as the fatal injury occurred in Scotland. Mr Haggerty died from mesothelioma which was caused by negligent exposure to asbestos in the 1970's whilst working in Scotland. Mr Haggerty's biological children accepted £50,000 each in respect of their claims in advance of the trial. His widow and three stepchildren (aged 21, 18 and 12 at the date of the trial) all brought claims for loss of society. After examining the relationships, the Court awarded the two older stepsons £40,000 each and the younger stepson £35,000. The difference in awards was due to the youngest stepson not living with the deceased, and so his lower award reflects that his relationship with the deceased was not as close as his two older brothers who lived with him.
In contrast, in Jennifer McCulloch and Others v Forth Valley Health Board 2020 significantly higher awards were made to younger children for loss of society. You can read about the facts of this case in this article on fatal accidents. In this case Neil McCulloch died after suffering cardiac arrest following his discharge from hospital. His family argued his death was caused due to the failure of his doctor who did not instruct an echocardiogram prior to his discharge from hospital. Whilst the family were ultimately unsuccessful in proving this would have prevented his death, Lord Tyre provided his opinion on the loss of society awards. Neil McCulloch's two children were age 1 and 7 when he died (9 and 15 at the date of the trial) and Lord Tyre's view was that had they been successful, they would each have been awarded £80,000.
The significant difference in the levels of the awards in these cases demonstrates the impact the age of the family member has on the level of damages awarded. The life expectancy of the claimant may also be taken into account.
Separately, the life expectancy of the deceased will be considered. The case of Manson v Henry Robb Ltd in 2017 demonstrates this. In this case, Mr Manson died due to mesothelioma and his family pursued claims for loss of society. Mr Manson was estimated to have a reduced life expectancy of 5.8 years, had he not been diagnosed with mesothelioma, which took account of unrelated health conditions. Lord Clark held this required to be taken into account. Lord Clark also opined that losing an elderly father has a different impact from losing a younger parent. The adult children, each in their 50's, were awarded £30,000, even though they were able to demonstrate that they had a particularly close relationship with their father.
Paterson v Lanarkshire Health Board 2023
A case which demonstrates a number of the issues discussed above is Paterson v Lanarkshire Health Board which is a clinical negligence case concerning the tragic death of Mrs Lynette Giblen aged 35 on 10 October 2016. Mrs Giblen had a known history of mental health difficulties, and the ultimate cause of her death was suicide following her discharge from psychiatric hospital care. Whilst Mrs Giblen had a complicated family dynamic, her mother, brother, half-sister and two children all pursued claims for loss of society. A detailed account of this case and the burden of proof that sits on the Pursuer in these types of claims can be found in this article.
The first pursuer was Mrs Giblen's mother. Following her discharge from hospital, Mrs Giblen moved in with her mother. Shortly following Mrs Giblen's death, her mother suffered from a seizure due to trauma. There was evidence of their very close relationship, and she was awarded £100,000, the highest sum that has been awarded to a parent under the Damages (Scotland) Act 2011 to date.
The second and third pursuers were Mrs Giblen's brother and half-sister. Lord Arthurson notes in his opinion that both siblings were estranged from Mrs Giblen due to a family feud. When giving evidence, the second pursuer could not remember the time of year that Mrs Giblen passed away, and did not complete giving evidence. Despite the estranged relationship that was established by the Court, each sibling was awarded £5,000.
Finally, the fourth and fifth pursuers in this case were Mrs Giblen's children who were 13 and 15 at the time of her passing (20 and 22 at the date a decision was made in this case). Evidence was heard that they had a close relationship with their mother and they were both awarded £70,000.
This case demonstrates a number of points in relation to loss of society claims made under the Damages (Scotland) Act 2011, as discussed in this article, including: -
- The closeness of the relationship between each family member and the deceased will be examined and considered by the Court;
- Even if a family member is estranged, they remain entitled to claim for loss of society;
- Half-siblings (or other half/step family members) are entitled to the same value of award as if they were immediate family members;
- This award was made by a judge and not a jury. Whilst historically, judges tended to award less than juries in these types, this has pattern no longer appears to be the case given the level of awards made in this case by a judge.
What can I do with the loss of society award?
Once an award for loss of society has been made to a family member, there is no restriction on how that money is used, nor is there any requirement for them to disclose to anyone what they do with it. Many of our clients have concerns about pursuing these types of claims, given the discomfort around placing a monetary value on what they have lost. The reality is that no amount of money will ever compensate them for their loss. Nevertheless, the right in Scotland remains to pursue justice and in doing so, the facts and circumstances of what happened to their loved one can often be explored in more detail. On conclusion of the case, there can often be a sense of bringing something good out of something tragic, by using the damages for good, perhaps by supporting other family members or charities, who may work to prevent such circumstances from occurring again in the future.
This is a complex area of law which requires Courts to decide upon the appropriate level of damages to compensate for the loss of a relationship, based on the evidence led to prove how close a family member was to their loved one. It is unreasonable to expect a flat rate figure to be awarded to any family member that falls within the same category. Instead, the relationship dynamics are examined to establish the level of stress, anxiety, grief, sorrow and loss of society and guidance that the family member has suffered.
Ultimately, no amount of money will compensate for the wrongful death of a loved one. However, the Damages (Scotland) Act 2011 is an important piece of legislation that provides recognition of the non-financial suffering that family members are going through.
This area of law is constantly evolving, and we will continue to review the case law. We will be particularly interested to see whether the decision in Paterson v Lanarkshire Health Board 2023, a case which considered complex family dynamics, results in the emergence of further cases resulting in higher judicial awards, more in line with previous awards made by juries.
If you'd like to speak to one of our experts about making a loss of society claim, please get in touch with our personal injury team.
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