North of the Border: No balance on bereavement awards

Two recent Scottish appeal decisions highlight the gulf between the jurisdictions regarding damages in fatal claims. In England and Wales a single bereavement award (currently £12,980) applies.

In Scotland the Damages (Scotland) Act 2011 allows a wide category of relatives to claim. These cases can be heard by a judge or a jury who will assess the appropriate level of damages. There is no statutory limit.

Historically, juries have awarded significantly higher damages. An appeal decision in 2012 recognised that awards by judges were too low and that efforts should be made to narrow the gap and to provide some consistency. In these two cases, the first instance awards were taken to appeal. Sadly, no real consistency emerged.

In Young v MacVean [2014] the mother of a 26 year old was awarded £80,000 following his death in a road accident. The judge noted their particularly close relationship following the death of her husband. While the judge agreed that there was a general hierarchy, with spouses receiving more than parents, there was ‘exceptionally unusual closeness’ justifying £80,000.

In Currie v Esure Services [2014] the court awarded £42,000 to each parent of a 25 year old killed in a road accident. The claimants argued that this did not take sufficient account of comparable jury awards. The appeal court held that £42,000 was not manifestly outwith what could be regarded as reasonable.

Consistency remains elusive and reserving remains difficult given the variations in awards.

Mrs Young also claimed as a secondary victim for symptoms of post traumatic stress disorder. She passed the scene of the accident and saw its aftermath. Before her son’s identity was confirmed, she had developed a strong suspicion that he was involved. The court held it was artificial to separate her coming upon the aftermath of the accident from actually hearing her son had died. This was not a case of a relative simply being told of the death.

Contrast this with Wild v Southend University Hospitals NHS Foundation Trust [2014]. Mr Wild realised, from the actions of medical staff, that his unborn son had died. The court held he was not a secondary victim: his trauma had not arisen from witnessing any horrific events and the control mechanisms in place excluded his claim. The court accepted that the lines were often drawn arbitrarily.

Until the authorities are less arbitrary and more consistent we can expect to see similar cases brought back to the courts.

Debbie Connor, associate at Simpson & Marwick

This article was published in the 19 March edition of Post magazine.