Loss of relationship
Following the wrongful death of an individual, any claim for pain and suffering prior to his death or financial losses as a result of his death (for example loss of earnings or pension contributions) would transfer to his estate. In addition to this, the Damages (Scotland) Act 2011 entitles the relatives to claim reparation from the party or parties at fault. This claim is for any distress or anxiety endured, grief and sorrow together with any loss of support, guidance and society. The level of the loss of society claim is far from fixed and much will depend upon the specific facts and circumstances of the case including the closeness of the familial relationships. As a result, there are a variety of awards providing differing levels of damages.
Choice of court: Judge or jury?
One important additional factor which may affect the level of the award is whether the case is heard before a judge or a jury. The opinion of then Lord President Hamilton in a leading 5 bench appeal judgement in Hamilton v Ferguson Transport (Spean Bridge) Limited (2012) SC 486, significantly changed the procedures for jury trials and attempted to narrow the growing disparity between lower judge-based and higher jury awards in Scotland for loss of society claims. Having altered the landscape last year the influence of Hamilton on later decisions has been awaited with interest.
Increase in judicial awards
Lady Wise's opinion in Currie v Esure Services Limited (2014) CSOH 34 attempted to address the imbalance of judge and jury awards. The case was raised by the parents and brother of Gavin Currie who was killed, aged 25, after being knocked down at a zebra crossing. The action was raised against the driver's insurers who admitted liability. There was no issue of contributory negligence so only the level of damages was in dispute.
Lady Wise reviewed the Hamilton case, together with subsequent decisions in the McGhee & Others v RJK Building Services Limited 2013 SLT 48 and Ryder v Highland Council (2013) SLT 847. Ultimately she referred to the earlier judicial award in Shaher v British Aerospace Flying College Limited (2003) SC 540, which she accepted undervalued the claim, and uplifted the award by 50% to give the parents £42,000 each and the brother £22,500.
Pros and cons of juries
Juries tend to make higher awards than a judge might be inclined to, particularly when they empathise with the pursuer. They decide the award on the basis of what they think is right rather than drawing on years of legal training. There are multiple factors jurors might take into account in considering the level of award - perhaps they're influenced by award figures they see reported in the press or possibly by dislike of a witness or the Pursuer. They may place greater emphasis than a Judge might upon issues of credibility, inconsistency or contributory fault. This may be balanced, however by the need for the jury to reach agreement.
However, in order to address this imbalance, Lord Hamilton in the Hamilton case recommended that juries be given more guidance as to the appropriate level of award.
The wholesale overhaul of the court system proposed by Lord President Gill and laid out in the Court Reform (Scotland) Bill is particularly important regarding accident claims, although the individual solicitor's view point may to some extent depend where their own client's interests lie, whether that be pursuer or defender. It is proposed that the threshold for Court of Session cases will be increased from £5,000 to £150,000, which will undoubtedly result in a large increase in personal injury litigation from the Court of Session to the new specialist Sheriff Courts. It follows that there are proposals for jury trials to be allowed to sit in the Sheriff Court. The Faculty of Advocates oppose the changes and claim there will be a reduction in quality access to justice for most ordinary claimants.
The Forum of Insurance Lawyers (FOIL) have criticised extending civil juries to the Sheriff Court on the basis that they consider this would lead to uncertainty for their insurer clients as juries are unpredictable and often award sums in excess of what a judge may be inclined to. Accordingly, they propose that juries be abolished throughout the civil justice system.
However, the other side of this argument is that some categories of award are historically too low and juries simply reflect the prevailing public view, which ultimately the Court should follow. These and other issues should be borne in mind as the debate around the Bill continues.
One thing is clear: there are likely to be further significant changes in store for claimants and personal injury litigators in the coming months.