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Damages for the loss of loved ones – Scotland

At a glance

  • Fatal claims in Scotland differ to any other UK jurisdiction, where claims for bereavement damages take the form of ‘loss of society awards’ under the Damages (Scotland) Act
  • Loss of society awards are complex. There are technicalities around who can make a claim and calculating awards depends on various factors and circumstances
  • There is an inconsistency to ‘loss of society’ awards which make predicting outcomes hard and each case must be carefully considered.

What is the difference between a fatality claim in Scotland and any other UK jurisdiction?  In financial terms, the answer is quite a lot.

In England & Wales, bereavement damages can be claimed following the unlawful death of a loved one under the Fatal Accidents Act 1976. This is capped at £15,120 from 1st May 2020 (previously £12,980). The same principles apply in Northern Ireland, although damages are capped at £15,100. In Scotland however there is no such payment, instead it has its own ‘loss of society’ award system.

‘Loss of society’ awards are unique to the Scottish jurisdiction and are the Scottish legal system’s equivalent of bereavement damages. Financially, loss of society awards are not capped, which is considerably different to bereavement damages in England, Northern Ireland and Wales.

The Damages (Scotland) Act 2011 sets out the framework which addresses the loss suffered by a family member in the event of an unexpected death.  Section 4(3)(b) specifies that a loss of society award can be pursued on the following grounds:

  • Distress and anxiety endured by the relative in contemplation of the suffering of the deceased before their death.
  • Grief and sorrow of the relative caused by the deceased’s death.
  • The loss of such non-patrimonial benefit as the relative might have expected to derive from the deceased’s society and guidance if they had not died.

Who is able to claim?

Although losses, as described above, can be suffered by anyone who had a relationship with the deceased, the Act in Scotland limits those able to claim to include; a partner, parent, child, sibling, grandparent, grandchild and someone accepted and treated as one of those relatives by the deceased (e.g. foster children, step-children).  Awards are also available for relatives that are ‘in utero’ (conceived but not born yet).

However, some relationships acquired through marriage, for example step-parents, step-children or step-grandparents, are not automatically entitled to compensation and could be excluded.  In fact, in an unreported case from 2016, the claims of two half siblings were dismissed on the basis that they did not have title to sue. However, people that fall under this category can argue an alternative referred to as ‘Acceptance’.

For a claim to be successful they must evidence that they had a relationship with the deceased which was accepted as being akin to a blood relationship, and in the case of step-children it must be proven that a common household was shared and that they were accepted as a child of the family.

Inconsistencies in awards

Another unique aspect of the Scottish jurisdiction is that a jury trial can be requested on civil cases.  Historically, jurors have tended towards higher loss of society awards than those granted by the judiciary, and as such, pursuers will usually push for fatal cases to be heard by a jury.

A procedural change some years ago allows a judge to offer a jury guidance in relation to the appropriate level of awards, in the hope of bringing more consistency and closing the gap between lower judiciary-based awards and higher jury-based awards.  Guidance was also provided to the Courts that greater regard should be given to past jury awards when considering awards in non-jury cases.  Both factors have led to a recent upwards trend in the sums being awarded for loss of society claims.

Guidance on awards

When calculating awards there will ultimately be numerous variables to consider which could affect the award.  As well as focusing on the strength of the relationships, the ages of those involved should be considered.  For example, the younger the deceased, the higher the award is likely to be.

In 2015, a jury handed out the largest loss of society award in Scottish legal history, with a £140,000 award to the widow of a 33-year-old man. In contrast, in another case the judge advised that although an ‘exceptionally close’ family unit was evident, the fact that the deceased was in his sixties should be taken into account.  He stated that the suffering as a result of losing an elderly father “is different from children in a similarly close relationship with a parent where they were, say, in their 40’s”.  Individual cases are very fact specific however, and awards are highly unpredictable.

Due to the inconsistency of awards it is important that each claim for loss of society is considered on its own merits and the relationships reviewed as much as possible.  This is quite a challenge as the awards can vary hugely depending on the factors discussed in this article. To add to these challenges, the defenders will rarely be given access to the pursuer or their witnesses and therefore need to rely on written statements which are very difficult to challenge.

If you want any support on this or wish to discuss further please do speak to your usual Zurich contact.

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