Fatal Claims In Scotland - Putting A Value On Death

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...