Scottish bereavement damages decision focuses on life expectancy
George Manson & others v Henry Robb Ltd [03.10.17]
The case of George Manson & others v Henry Robb Ltd saw the Court of Session wrestle with the longstanding question of judge versus jury awards. It also considered the impact of a reduced life expectancy on the overall compensation figure. £75,000 was awarded to the widow, and £30,000 to each son.
George Manson senior died at the age of 81, and was survived by his widow (aged 79) and his two sons, aged 55 and 59 respectively. According to the judgment, he died of mesothelioma between seven and 10 months post-diagnosis, and it was accepted that his decline was swift and traumatic.
Addressing the appropriate award under s.4(3) of the Damages (Scotland) Act 2011 – still commonly referred to as loss of society - the defenders did not dispute that the loss of the “solid rock” deceased had profoundly affected the family, nor did they dispute that the “exceptional and particularly close relationship”. The marriage had lasted nearly 60 years, and the deceased’s sons had always lived at home with their parents.
Agreed expert evidence, concluded that the deceased’s life expectancy but for the diagnosis was reduced by five years from 10.8 to 5.8 as result of underlying diabetes and a history of obesity and hypertension. This allowed the defenders to argue that the loss of society award should be reduced to reflect the limited future the family would have had with the deceased. They also sought to distinguish larger awards where the surviving family members were younger.
Lord Clark agreed with these principles and awarded £75,000 to his widow and £30,000 to each son. Although he was at pains to point out that there should be no tariff system, common benchmarks for judicial awards currently stand at £80,000 and £35,000 respectively. Whilst this may not be a significant reduction, pursuers routinely propose that a shorter future together is balanced out by the loss of someone with whom a long and happy life has been spent.
On 3 October 2017 Lord Clark issued his decision on the damages to be awarded to the surviving widow and adult children of an 81 year-old deceased. The case of Manson saw the Court of Session wrestle with the longstanding question of judge versus jury awards, but also considered the impact of a reduced life expectancy on the overall compensation figure. £75,000 was awarded to the widow, and £30,000 to each son.
There is little doubt that the consequence of a pursuer’s right to a jury trial is felt most keenly in fatal damages claims, and as far back as 2012 the Scottish Courts have consistently stated that there should be more consistency between judicial and jury awards. In Manson the pursuers argued that the unreported jury case of Stanger v Flaws supported awards of £120,000 for a spouse and £50,000 for an adult child.
In awarding £75,000 and £30,000 has Lord Clark ignored the call for consistency, or was the effect of a reduced life expectancy more profound than is suggested above? Other than to say that the jury decisions quoted do not provide a pattern of awards, the judgement is not entirely clear on this point.
It is however fair to comment that the decision is useful for insurers and others called upon to defend fatal damages claims. It makes clear that each case must be considered with reference to its own specific circumstances, but after a lengthy spell of travel in only one direction, there is also now a stronger suggestion that these awards may actually go down as well as up.