Damages in fatal claims – a loss of society update following Violet Paterson and others v Lanarkshire Health Board

Where there has been a fatality following an accident or other negligence then the family of the deceased can claim for loss of society.

Whilst the categories of person who can claim is set out in the Damages (Scotland) Act 2011, the level of damages is to be determined by a judge (or jury). In general terms, the bigger the family, the higher the award. The compensation regime for fatal claims is therefore very different compared to England & Wales where damages are limited to a statutory bereavement of around £15,000.

Section 4(3) of the 2011 Act states the damages awarded will be:

“such sum, if any, as the court thinks just by way of compensation for all or any of the following––

(i) distress and anxiety endured by the relative in contemplation of the suffering of A before A's death,

(ii) grief and sorrow of the relative caused by A's death,

(iii) the loss of such non-patrimonial benefit as the relative might have been expected to derive from A's society and guidance if A had not died.”

Each case is fact specific to some degree. Regard will be had to factors such as how close the family were and the deceased’s life expectancy. However, when negotiating claims or making submissions in court, regard is had to previous cases. Every now and again a new judgment is issued which goes on to create a rule of thumb for the level of damages awarded to a category of relative.

Less than a week into 2023 and we have had our first judgment assessing loss of society in Violet Paterson and others v Lanarkshire Health Board [2023] CSOH 1. The facts are tragic and involve the death by suicide of a 35 year old following discharge from hospital where they had been receiving treatment for mental health issues.

Of note for present purposes is the level of damages awarded to the deceased’s family under s4(3) of the 2011 Act. The mother was awarded £100,000; the two children (age 20 and 22 at trial) were awarded £70,000 each; and the two siblings who were said to have been estranged from the deceased due to a family rift were awarded £5,000 each. Unusually, all sums awarded were inclusive of judicial interest.

How does that compare with other recent judgments? We include some analysis below, with the figures updated in reference to the RPI data to January 2022 (the 2023 figures being awaited at the time of writing). We have included judge awards only with jury awards typically being much higher:

*inclusive of interest

Time will tell exactly whether and how much Patterson effects the current practice of loss of society settlements and awards. At first glance it does appear to be evidence of a continued trend upwards, even beyond the current inflation rate.