A series of recent jury decisions in Scotland has underlined the disparity between the levels of damages a judge and a jury will award to relatives in fatal claims.

These decisions, together with the introduction of the Damages (Scotland) Act 2011, have significant consequences for insurers and self-insured employers for the purposes of reserving, and settling, claims for damages arising from fatal accidents in Scotland.

Bereavement awards

In contrast to the position in England, there is no statutory limit for bereavement awards to close family members in fatal claims in Scotland (as awarded under s.1(4) of the Damages (Scotland) Act 1976).

Moreover, as claimants pursuing such claims in the Court of Session have a right to a jury trial (except where “exceptional circumstances” exist), there has always been a difference between the level of damages awarded by a judge and by a jury.

One of the key factors at play is that, unlike in a trial before a judge, a jury is not informed about previous awards in similar cases. The only guidance a jury receives is a piece of paper (known as “the Proposed Issue”) with a figure on it that the award of damages cannot not exceed.

Historically, juries have been more likely to award much higher levels of damages for s.1(4) claims than a judge. However, there have been problems with establishing a consistent pattern of such awards.

On the basis of the recent jury awards, a pattern is becoming more readily identifiable.

Over the past ten years, there have been 11 judge awards and 13 jury awards in fatal claims. Please click here to view the figures.

As can be seen from the figures, although there has been relative certainty in relation to the sums a judge might be expected to award bereaved family members, there is a varying level of “uplift” produced by the “jury effect”.

For example, a widow might expect to receive around £32,000 to £40,000 from a judge for the loss of her husband, whereas a jury might award her double that sum. The disparity is even greater in relation to the loss of a parent or child, where juries have awarded three to four times the amount that would be expected from a judge.

On one view, it is only in relation to the loss of a child that a more discernible pattern of a growing disparity between judge and jury awards can be identified. That said, two of those cases have been appealed, whilst three others involved servicemen killed in a Nimrod crash in Afghanistan, where it might be argued that the jury had been particularly sympathetic to their families’ loss.

Nevertheless, the recent decisions have served to highlight the material disparity between judge and jury awards and it is only a matter of time before we can expect the Scottish appeal courts to intervene and provide greater clarity in this highly emotive area.

Claimant solicitors have always looked to rely on jury trial figures to settle fatal claims. The recent surge of jury awards in this area provides them with greater impetus and, until steps are taken by the courts to address the disparity, this will continue.

Damages (Scotland) Act 2011 - overview

The Damages (Scotland) Act 2011 comes into force on 7 July 2011. The Act creates a new regime for dealing with wrongful deaths in Scotland and will apply to all actions raised after 7 July 2011.

The key changes highlighted here relate to the calculation of loss of support claims:

• Fixed percentages - the Act provides that a fixed percentage (75%) of the deceased’s net income is to be used as the basis for calculating the loss of support claimed by his/her dependents. Previously, the appropriate percentage for any particular claim was a matter for negotiation/proof. That will no longer be the case, albeit there remains the ability to challenge the fixed percentage in cases where this would produce “a manifestly and materially unfair result”.
• The spouse’s income is disregarded – previously, the deceased’s spouse’s income was taken into account when calculating the level of support provided by the deceased. Any income the surviving spouse may have will now be ignored (although there is the ability to use the “manifestly unfair” proviso).
• Date from which multipliers run – until now, multipliers in fatal claims have run from the date of death. The Act stipulates that the multiplier will now run from the date of the award of damages and apply only to the future element of the loss of support claim. This will result in slightly higher multipliers being used, with an increase in the level of loss of support claims.

For full details of the Damages (Scotland) Act 2011, click here.

Further information

For further information on the issues raised in this ezine, please contact Douglas Keir, Andrew Lothian, Sarah Phillips, or your usual contact within the Insurance Litigation Unit.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.