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 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...