Loss of Society Awards are made under section 4(3) of the Damages (Scotland) Act 2011 to compensate relatives of the deceased for the distress, anxiety, grief and sorrow caused by the wrongful death of their loved one, together with any loss of support guidance or society. The relatives provided for under the Act include the partner, parent, child, sibling, grandparent or grandchild of the deceased, or someone accepted and treated as one of those relatives by the deceased.
In the past, if it was necessary to raise a court action to recover damages, the forum for doing so - whether that be before a judge or a jury - would be an important consideration. However, following the conjoined appeals of Hamilton v Ferguson Transport (Spean Bridge) Limited and Thomson v Dennis Thomson Builders Limited (2012) SC 486, judicial awards have been increasing. This is due to the court's guidance that judges should have greater regard to traditionally higher jury awards when reaching their decision on the value of the claims.
There have been a number of recent cases following this decision which illustrate the higher awards judges are prepared to make. In McGee v RJK Building Services Limited 2013 SLT 428, the judge awarded the widow of a 71 year old man £80,000, his 2 daughters £35,000, his son £27,500. His grandchildren were awarded between £2,500 and £25,000, with the higher awards taking account of the fact that he was seen as a father figure by his older grandchildren. This case provided a benchmark for several cases following including Gallagher v SC Cheadle Hume Limited 2014 CSOH 103 in which similar awards were made to the widow, children and grandchildren of the deceased. McCarn v Secretary of State for Business, Innovation and Skills 2014 CSOH 121 followed suit with awards of £35,000 to the deceased's five adult children.
The recent case of Young v McVean 2014 SLT 934 resulted in an award of £80,000 to a mum for loss of society following the death of her young adult son following a road traffic accident. This decision has been appealed and is due to be heard next month. However, this decision can be compared to Currie v Esure 2015 SLT 64 where the Inner House upheld the Outer House's decision to award the parents of a 25 year old man killed whilst using a pedestrian crossing £42,000 for loss of society. There is a significant difference between these two awards illustrating the judicial discretion which can be exerted in these types of cases.
Whilst it would appear that a pattern is emerging in the level of awards the judiciary are prepared to make in these types of cases, each claim will be analysed on a case by case basis. This will involve scrutiny of the relationships of the family to the deceased, an often painful process.
We await with interest the outcome of the appeal of the decision in Young v McVean and hope this brings some more clarity to this uncertain area of the law.