These awards, which are made under section 4 of the Damages (Scotland) Act 2011 for their distress, grief and loss of society, have significantly increased in the last decade, particularly in cases decided by juries. However, does the recent decision of the Inner House in Currie v Esure 2014 CSIH 112 signal that these increases are potentially set to level off?
£42,000 award in Currie
Mr and Mrs Currie lost their 25 year old son when he was killed after being struck by a car at a zebra crossing. They were awarded £42,000 each in respect of their loss whilst their other son, the deceased's brother, was awarded £22,500. Mr and Mrs Currie appealed this decision on the basis that their award should be higher, however, their challenge failed. The three judge bench considered that the judge in the original case had correctly approached the calculation of damages by taking the most similar judicial award to their case - the 2003 case of Shaher v British Airspace Flying College Limited 203 SC 540 - and increasing it by 50%.
£86,000 award in Scott
This award seems out of step with other cases such as Young v MacVean 2014 2014 CSOH133, where a mother was awarded £80,000 following the death of her 26 year old son who was killed by a passing car when he was walking along the pavement. This was the highest judicial award of its kind to date. The judge took into account the particularly close relationship of the single mother with her son which was in part due to the tragic death of her husband when her son was young. This decision is currently under appeal. In May 2014, in the case Scott v Parkes (unreported), a jury awarded £86,000 to a 51 year old mother of a 19 year old son killed in a road traffic accident. In this case, the pursuer was also single mother with a particularly close relationship to her son and following his death, she suffered a prolonged grief reaction.
Uncertainty remains as the Court try to bring jury and judge-based awards to a consistent level. Because a jury think for themselves the two may never dovetail. What is clear is that this area of the law is far from settled. In addition to the value of the loss of a child, there is uncertainty surrounding the appropriate level of awards for the loss of a spouse, parent and grandparent. In considering the amount of damages to award, the courts analyse the familial relationships in each case together with the specific facts and circumstances of the case resulting in a range of awards as opposed to a fixed figure. However, in refusing the Currie's appeal, the Inner House has confirmed it considers the award of £42,000 is at the correct level. What remains to be seen is whether a jury would agree with this analysis or whether, as has traditionally been the case, they would consider a higher figure is required to reflect this loss.