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Published 17 enero 2023
Damages for fatal accident claims in Scotland are quantified in accordance with the provisions of the Damages (Scotland) Act 2011 (the Act). This Act provides for damages to be paid to relatives for loss of support that was provided by the deceased, loss of services that were provided by the deceased, and for the grief and sorrow caused by the deceased’s death, more commonly known as damages for “loss of society”.The recent case of Paterson v Lanarkshire Health Board considered the level of damages that should be awarded under section 4 of the Act for “loss of society”.Whilst the case considered interesting arguments around allegations of clinical negligence and causation, perhaps more relevant to people dealing with general personal injury actions was the approach taken by the Court in regards to damages.
The caseThe deceased, Lynette Giblen, had suffered from Emotionally Unstable Personality Disorder for a number of years and had been receiving hospital treatment, latterly as an inpatient. The Lord Ordinary found that she had been discharged with insufficient support to deal with the significant risk of deterioration in her mental health. Her mental health took a turn for the worse after her discharge, leading her to attempt suicide. Although she was discovered by her mother and taken to hospital, she later died.The deceased’s mother, two siblings and her two children all brought an action against the Health Board in respect of the alleged lack of proper post-discharge provision and support for the deceased.S.4 damages (loss of society)Of interest to those dealing with fatal claims in Scotland are the awards made in respect of loss of society. In this case, the Lord Ordinary took a “broad approach” to damages.Deceased’s mother (first pursuer)The Lord Ordinary awarded the deceased’s mother £100,000 for loss of society. When arriving at this sum, he considered the “considerable distress and anxiety in contemplation of the deceased’s suffering before her death” that the deceased’s mother experienced when considering the period between the deceased’s discharge from hospital and when she committed suicide. The first pursuer herself had collapsed after the ambulance had taken the deceased to hospital.This is the highest award made to a parent to date for loss of society. The previous highest awards had been made by a judge in Young v McVey (2014) in which a 26 year-old was killed in a car crash. His mother was awarded £80,000. In the perhaps better known case of Anderson v Brig Brae Garage Ltd (2015), the deceased was aged 33 when he was killed whilst riding a quad bike. His father was also awarded £80,000 for loss of society.Deceased’s siblings (second and third pursuers)The deceased had been estranged from her brother and sister. The judge referred to the medical records which showed that the deceased had been ostracised from members of her family and considered that her siblings fell into this category. Because of this and other factors, including a 16 year age gap between the deceased and the third pursuer, her half-sister, the judge awarded £5,000 to each of the siblings. The level of these awards represents the lower end of the range of potential damages and is a reminder that the damages awarded for loss of society claims very much turn on the facts of the particular relationship in question.Deceased’s children (fourth and fifth pursuers)The deceased’s two children were aged 13 and 15 at the date of their mother’s death and 20 and 22 at the date of proof. The judge made no comment on the relationship but, in awarding each child £70,000, he appears to have been satisfied that the children had a relationship of sufficient closeness to merit that level of damages.Services (s.6) and support (s.7)A claim which had been advanced for loss of support for the children was abandoned during submissions. A further claim for services was maintained on a nominal lump sum basis. The judge decided that there was no evidence to support such a claim and dismissed it.ConclusionThe awards made in this case are further confirmation that the level of damages for loss of society claims has not plateaued and whatever difference there may have been between judge-made and jury-made awards, if such ever existed, has all but disappeared.Historically, a pursuer’s agent with a good case on a fatal claim would perhaps have been expected to opt for a jury trial because of the difference that was thought to exist between awards made by a jury as against those made judicially. Paterson is one more indication that such a distinction no longer exists.Going forward, it is likely that pursuer’s agents will seek to rely on this case when pursuing an action for damages by parents and children of a deceased. Whilst all cases turn on their own facts and circumstances and there are good arguments that the claim by the first pursuer in Paterson was an exceptional one given the particular circumstances, it is likely to become increasingly difficult to resolve fatal claims at a level significantly below the figures awarded in the case.
If you wish to discuss this further, please feel free to get in contact with our Complex Injury Team at DAC Beachcroft Claims Limited.
+44 141 223 8550
Olugbenga Dansu, Jack Reynolds