This decision of Lord Armstrong on 22nd July in the Outer House affirms the judicial approach to awards under section 4 of the Damages (Scotland) Act 2011 (“the Act”), commonly referred to as “loss of society” awards. It is also another example of the use of expert or quasi-expert witnesses to adduce evidence regarding family relationships and the effect of the deceased’s death on his or her family. The question of contributory negligence was also explored by the court.

Accident

The accident occurred on 27th September 2018 when the deceased, Michael McArthur, was working from a cherry picker which was struck by a coach belonging to the first pursuer and driven by one of its employees. Mr McArthur fell from the cherry picker and was killed.

Claims were brought by four family members: father, mother, half-sister and step-father. All of the pursuers fall within the definition of “relative” in s.14 of the Act.

Although liability was admitted, the case came to proof because of disputes as to (a) the level of damages contended for by the pursuers under s.4 of the Act and (b) whether there had been any contributory negligence by the deceased.

Damages

Evidence was led by the pursuers as to the relationship that each of them had with the deceased. Each adduced that they had a close and loving relationship with the deceased and that his death had affected them greatly at the time and would continue to do so.

The pursuers also led evidence from counsellors who had worked with the deceased’s mother and half-sister since the accident, and who spoke to the effect that the deceased’s death had had on them. This is a relatively recent trend. In the past, the court would have likely only heard direct evidence from the relative as to the nature of their relationship with the deceased and the impact of their death. It is perhaps a question to be asked whether evidence from “quasi-expert” witnesses such as counsellors, as in this case, is always appropriate. 

For the pursuers it was argued that, as to the father and mother, the deceased was their only son together and they had lost his company, support and guidance. They had a close relationship with him, even though he had lived abroad in New Zealand for some time and was living a distance away from them at the time of his death. In view of the close bonds and his youth (the deceased was 26 when he died), the pursuers contended for an award of £120,000 for each.

The figure argued for in respect of the deceased’s half-sister was £50,000, again given their close relationship during her life.

In respect of the step-father, the pursuers argued that the appropriate figure to award was

£70,000 in view of his close relationship with the deceased since he had become his step-father.

The defenders argued, in turn, that the claims should not attract awards at the top end of the range. Other cases were cited in which awards substantially less had been made where the circumstances were more in line with this case. The deceased had spent more time away from home as he aged and had lived in New Zealand for a while. He was not dependent on the pursuers. His relationship with his half-sister was close but there was a 14 year gap in their ages. Theirs was not a conventional sibling relationship. 

In the event, the Judge largely agreed with the pursuers and he awarded the following sums:

Contributory negligence

It was agreed that the primary cause of the accident was the failure by the coach driver to avoid an obvious hazard, but it was argued by the defenders that the deceased, although working at height, had not been wearing a harness or PPE. It was accepted that traffic control measures had not been in place, there was no banksman and the deceased had been alone in the cherry-picker basket.

The pursuers argued that the deceased was a careful worker who had refused to work in potentially dangerous ways before.

There was uncertainty as to the nature of the deceased’s employment but ultimately Lord Armstrong considered that the deceased was working for another individual, Kevin Bowie, at the time of the accident and the issue came down to whether Mr Bowie was exercising sufficient control so as to be responsible for the deceased’s health and safety and to make sure that the job was done safely. Lord Armstrong held that Mr Bowie was de facto in control and owed a duty of care to the deceased. The relationship between them was one of employer and employee in this context. Mr Bowie had failed to assess how the work was to be carried out safely. The deceased did have a training certificate referable to the use of working platforms, harness inspection and fitting but Lord Armstrong pointed out that this was for work the deceased had done in a boatyard. The question of whether any of the training the deceased had undertaken was relevant to the use of this particular type of cherry-picker in an urban environment was not explored in the evidence. Given the facts and the working relationship between the deceased and Mr Bowie, Lord Armstrong found that the deceased had not been contributorily negligent.

Conclusion

This case demonstrates the increasingly large sums that are being awarded for loss of society claims and highlights the gulf that exists in how fatal cases are approached north and south of the border. The fact that the awards have been made by a judge, rather than a jury, is also of note given that the general view is that juries tend to be more generous than judges in their approach. It will inevitably lead to solicitors acting on behalf of pursuers using these figures as the starting point for their negotiations, particularly if a jury trial has been fixed in the case.

It is also a stark reminder of the difficulties that defenders face in challenging the closeness of the relationship between a deceased and his or her family members. There likely needs to be clear evidence to contradict the evidence that the family will give about their relationship. The fact that the deceased may have lived some distance away from his or her family will not be sufficient to establish that the relationship was not a close one. A large age gap between siblings will likewise not in itself indicate that there is not a close relationship present.