Accident Claims News
Fatal Accident Claims Clarified?
Mar 13, 2013
There has long been a significant gap between jury and judge awards for surviving family member’s claims under Section 4(3) of the Damages (Scotland) Act 2011 in fatal accident claims. Generally, juries tended to be more generous than judges sitting alone. Juries were also expected to make their decision as to the value of compensation without any guidance from the presiding judge.
Last year, the matter came under judicial scrutiny in the Inner House case of Hamilton and Thomson (Hamilton v Ferguson Transport (SpeanBridge) Ltd & Thomson v Dennis Thomson Builders Ltd  CSIH 52). In these 2 cases, the defenders appealed the awards under Section 4(3) on the basis that they were excessive. Both appeals were successful, and fresh trials were ordered.
The Lord President sought to give some guidance for the future conduct of claims under the 2011 Act, commenting at paragraph 
“the current absence of judicial guidance to juries on levels of damages is an unsatisfactory feature of our practice. It should, in my view, now be changed. There was some discussion as to how procedurally this might be done. There was a broad consensus that, at the conclusion of the evidence, the parties should, in the absence of the jury, briefly address the trial judge on their suggestions as to the level of non-pecuniary damages which would be appropriate. In light of these submissions and having regard to his own experience and judgment, the trial judge would, in addressing the jury, suggest to them a spectrum within which their award might lie. That spectrum, he would inform them, was for their assistance only; it was not binding on them.”
It is unclear as to how this “spectrum” will operate in practice. So far, the courts have only had one opportunity to use this new procedure. In the jury trial for the case of Lydia Kelly & Ors –v- Upper Clyde Shipbuilders (unreported 29 June 2013), the court implemented this new process. Lady Clark was presiding in the case, where the deceased has passed on as a result of contracting meothelioma at work. The judge provided a spectrum of figures for the jury as a outlined by the Lord President in Hamilton & Thomson. The figures ultimately awarded by the jury were at the lower end on the spectrum due to the particular circumstances of the case. The widow was awarded £45,000 following a guide figure of between £40,000 and £80,000, and the adult children received £25,000 out of a spectrum of £15,000 to £35,000. The adult grandchildren received awards £8,000 from a range of £5,000 to £25,000, while the deceased’s brother was awarded £8,000 form a range of £5,000 to £20,000.
Recently, the first awards given by a judge sitting alone were delivered in Catherine McGee & Ors v RJK Building Services Ltd  CSOH 10 (http://www.scotcourts.gov.uk/opinions/2013CSOH10.html). Lord Drummond Young delivered an opinion in a case where a 67 year old man died following injuries sustained when he fell down a flight of stairs in his home due to a poorly fitted handrail. In looking at the value of such a personal accident claim, the court was referred to the cases of Bellingham and Wolff, both of which were decided prior to the decision of the court in Hamilton & Thomson. But Lord Drummond Young said:-
“The awards in both cases were, however, the subject of critical comment in Hamilton v Ferguson Transport (Spean Bridge) Ltd, 2012 SLT 715. The main issue that confronted the court in the latter case was the form of direction that should be given to juries in relation to the level of damages; clearly that aspect of the decision is not relevant for present purposes. Nevertheless, Lord President Hamilton stated, at paragraph , that "the recent judicial decisions of Bellingham and Wolff markedly undervalue... the relative s. 1(4) claims".
As a result, the valuations set in McGee are “markedly” higher than previous judicial valuations. The widow was awarded £80,000, while the 2 daughters aged 44 & 37 were awarded £35,000 each. The 43 year old son was awarded £27,500 due to his differing circumstances, while the grandchildren were awarded between £12,000 and £25,000.
It of course remains to be seen whether the courts will follow McGee in the future. However, the uncertainly in relation to awards for loss of society under section 4(3) of the 2011 Act continues. The only thing that seems to be clear is that further litigation is going be required. Insurers will undoubtedly wish to challenge the level of awards, and any motivated pursuer’s agent will wish to achieve results similar to that in McGee.