Fatal accident claims in Scotland and rising “loss of society” awards

In recent years, there has been a rising trend in the value of compensation awards being made to family members of victims of fatal accidents in Scotland.

The statutory scheme for awarding damages to relatives of victims of fatal accidents in Scotland is set out in the Damages (Scotland) Act 2011. In terms of section 4(3), close relatives of an individual who has died as a consequence of third party's negligence are entitled to claim damages for the emotional distress and sorrow caused by the wrongful death of their loved one. This is known as “loss of society”. Of course, no monetary sum can ever compensate a family member for the loss of their loved one, but this provision of the Act serves to recognise the loss sustained.

Section 4 of that Act defines a relative to include spouse, civil partner (or those living with the deceased in such a relationship at the time of death), parent, child, sibling, grandchild (and those accepted as such a relative by the deceased or in the case of a child, accepted by his family to be such a relative) and finally grandparents.

In contrast to the position in England & Wales where the amount of “bereavement damages” is fixed by statute, and is much lower than Scottish awards, the value of an award for loss of society in Scotland depends on the particular facts and circumstances of each individual case. Evidence is required to illustrate the nature and depth of each particular familial relationship, recognising the varying degrees of strength and bond within certain family relationships, and disregarding any preconceived or outdated notions of a standard nuclear family.

In 2021, in the case of Robert McArthur & Ors v Timberbush Tours Limited & Anr [2021] CSOH 75, the Court of Session in Edinburgh considered the level of damages that should be awarded under the Act, and provided practitioners with guidance on the factors which fall to be considered and applied when seeking to quantify any claim for loss of society. Michael McArthur was just 26 years old when he sustained fatal injuries following a fall from a cherry picker. Claims were brought for loss of society by his parents, stepsister and stepfather. The Court heard evidence of the close bond of love and affection between the deceased and his family, including his stepfather and stepsister. Lord Armstrong awarded £100,000 to the parents of the deceased, £45,000 to his stepsister, who was only 12 years old at the date of death, and £70,000 to his stepfather. In making these awards, the Court recognised the close relationship the deceased had with both his biological parents and indeed his stepparent. It is worth noting that none of these relatives would have been entitled to “bereavement damages” had this accident occurred in England, as parents are only entitled to claim such damages if the child is under 18 years of age, and siblings do not qualify.

The 2023 case of Paterson & Ord v Lanarkshire Health Board [2023] CSOH 1 provided further guidance on the various factors which require to be considered when seeking to quantify any claim for loss of society. In this case, the deceased's two children were aged 13 and 15 at the date of their mother's death. She was aged just 30 at the date of her death. Following the Court's dicta in McArthur, where the Court had placed special significance on the deceased's young age when he died, the Court in Paterson awarded each child £70,000 for loss of society. In addition to the age of the deceased and the age of the pursuer being considered, the Court also had regard to the nature of the relationship between the deceased and the pursuer. In his Judgement, the trial Judge described the pursuer as “a most affectionate and dutiful daughter to her beloved mother”, with the deceased's children being described as “equally beloved”. The deceased's siblings, however, were only awarded £5,000 each, much lower than the average award in Scotland for the death of a sibling, which was cognisant of the fact, led in evidence, that the deceased had sadly become estranged from her siblings.

Finally, in making an award for loss of society, the Court will have regard to the nature of the deceased's death. In Paterson, the trial Judge considered the children's ”considerable distress and anxiety in contemplation of the deceased's suffering before her death”, and that the grief caused had manifested in a physical reaction; the first pursuer had collapsed when the deceased was taken to hospital. It follows that the traumatic nature of the deceased's death will, therefore, have a bearing on the value of a claim for loss of society.

Although each case turns on its own unique facts and circumstances, the case law cited above provides useful guidance to practitioners in quantifying such complex claims.

Email Jacqueline Raitt
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