Fatal Accident Awards

Lady Wise’s Opinion in the case of James Currie and Others v Esure Services Limited 2014 CSOH 34 was issued on 21 February 2014.

The Action arose from the death of Gavin Currie. He was a pedestrian and had been killed as a result of an accident on 28 December 2011.

Liability was not in issue nor was there any contributory negligence argument.

Claims were made by his father and mother, aged respectively 61 and 60 years at the date of Proof, and by his brother, aged 30. The late Gavin Currie was just short of 26 years of age when he died.

The three Pursuers claimed “loss of society” awards in terms of the Damages (Scotland) Act 2011 Section 4(3)(b). That subsection provides that an award can be made of any sum the Court thinks just by way of compensation “for all or any of the following”:-

(i) Distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death.

(ii) Grief and sorrow of the relative caused by A’s death.

(iii) The loss of such non-patrimonial benefit as the relative might have expected to derive from A’s society and guidance if they had not died.

The case of Hamilton v Ferguson Transport 2012 SC486 was decided by a Court of five Judges who took steps to try and resolve the discrepancy between loss of society awards made by a Jury on the one hand and by a Judge sitting alone on the other.

Lady Wise considered the various reported fatal cases pre-Hamilton and two cases post-Hamilton.

The evidence in the case showed that the Currie family was a very close knit one.

Lady Wise made an award of £42,000 to each parent and £22,500 to the late Gavin Currie’s brother.

Having reviewed all of the relevant cases, she took the view that in the case of the parents, the appropriate approach was to use a 50% uplift on the awards in the case of Shaher v British Aerospace Flying College Limited 2003 SC540. In that case an award to the parents of £35,000 each had been reduced to £20,000. That figure updated would have been £28,000 and the 50% uplift was applied to the latter figure.

In the claim by the late Gavin Currie’s brother, Lady Wise considered that an appropriate starting point was £15,000 and applied a 50% uplift to that figure.

Lady Wise quoted the comments of Lord President Hamilton in the Hamilton v Ferguson Transport case with reference to the objective to seek to narrow the disparity between Jury and Judge awards and to eliminate the lack of consistency. She pointed out that the current case was being decided during the process envisaged by Lord President Hamilton. She commented that since Hamilton there had been only one publicised Jury award which was insufficient to provide any pattern under the new system where Juries were to be given judicial guidance as to awards.

The rationale for using Shaher as a comparable case related to both cases involving the loss of a young adult son and other similarities between the two cases including very close bonds of affection.

On the basis of the guidance given in Hamilton v Ferguson Transport, she considered that Shaher “must now be regarded as markedly undervaluing similar claims” and it was on that basis she increased the current value of the Shaher award by 50%.

With only a very limited number of cases since Hamilton v Ferguson Transport, it remains to be seen whether the approach now outlined by Lady Wise is followed by other Judges. So far as cases considered by a Jury are concerned, two separate factors will be at play, firstly the nature of the judicial guidance given by the presiding Judge to the Jury on value and secondly, to what extent the Jury follow that guidance.

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