Fatal Cases – Increased Awards

In the case of Bellingham & Others v James Todd, Lord Woolman issued his Opinion on 5 May 2011 (2011 CS0H 74).

The late Paul Bellingham was riding a motorcycle when he died in an accident on 25 July 2008.  He was 40 years old at the time.  His family sued another vehicle driver.

One of the heads of claim related to the Damages (Scotland) Act 1976 Section 1(4) generally referred to as a “loss of society” award.  This award is to compensate the relevant relative for the distress and anxiety, grief and sorrow and the loss of non-patrimonial benefit as might have been derived from the deceased’s society and guidance, if the deceased had not died.

There were competing submissions in respect of the loss of society valuations, primarily as a result of differences between loss of society awards made by Juries on the one hand and Judges on the other.  Perhaps, not surprisingly, the Pursuers made submissions based on recent Jury awards.

Lord Woolman reviewed the awards made by Judges and Juries over the last ten years and in considering the variation between judicial and Jury awards, he drew five propositions from Court decisions which had considered the issue, namely:-

  1. The assessment of damages is essentially a Jury question.
  2. The reason for that is because such awards should reflect the expectations of society.
  3. The Court is therefore encouraged to look for guidance to Jury decisions.
  4. Reliance can be placed on a consistent pattern of Jury awards.
  5. Caution should be exercised before (a) reliance is placed on only one Jury award or (b) equalising awards in respect of different classes of relative.

Taking these propositions and factors relevant to this particular case, he then set out loss of society valuations generally higher than those awarded by Judges in the past and on the basis of “an established hierarchy of awards”.  Accordingly, a surviving spouse would usually receive a greater sum than surviving parents or children of the deceased.

The awards were therefore:-

  • The widow – £50,000
  • A son and daughter (ages not stated but said to be very young) – £25,000 each
  • A son aged 25 from an earlier relationship – £15,000
  • The deceased’s father and mother – £15,000 each
  • The deceased’s brother – £10,000

In light of this decision, it is clearly important that Insurers revise their estimates for the loss of society claims in fatal cases.

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