Family of deceased awarded £250,000 for loss of society

The case of Violet Paterson & Others v Lanarkshire Health Board was heard in the Outer House Court of Session recently by Lord Arthurson. It involved five pursuers who were all relatives of the deceased. The deceased, Mrs Lynette Giblen, died on 10 October 2016 at the age of 35. This was less than one month after being discharged from Hairmyres Hospital.

Background

Mrs Giblen had a long history of mental health problems and suicide attempts. She was diagnosed as suffering from an emotionally unstable personality disorder. In the period leading up to her death, she had been admitted to, and discharged from hospital four times.

In August 2016 Mrs Giblen was admitted to Hairmyres Hospital and detained on a short-term detention certificate. Mrs Giblen was discharged to her family home in September 2016 by a consultant psychiatrist. Shortly afterwards she moved to live with her mother. Mrs Giblen was referred to a Community Psychiatric Nurse (CPN) who arranged to meet with her at the same time as the consultant psychiatrist, 24 days after she was discharged.

On the 9 October Mrs Giblen was at her mother’s house and was speaking in a disturbed manner. Her mother left her to calm down and went to visit the local shops. When she returned, she found that Mrs Giblen had attempted to end her own life. She died the next day in hospital.

The family of Mrs Giblen claimed against the defender due to their vicarious liability for the conduct of the consultant psychiatrist. They argued that had he implemented appropriate post-discharge care, the deterioration of Mrs Giblen could have been prevented. The decision itself to discharge her from hospital was not in dispute.

The defender’s case

The defenders submitted that the post-discharge care of Mrs Giblen was not negligent. The consultant psychiatrist was of the view that although she demonstrated paranoid ideation, there was no suicidal ideation. He stated that when the decision was made to discharge Mrs Giblen, he offered her and her husband the support of the Extended Hours Service, which they both declined.

The expert witness for the defenders, also a consultant psychiatrist stated that the defender, in their view, was not negligent. As Mrs Giblen was a low risk of death by suicide, the appointment with a CPN 24 days after discharge was within the range of acceptable practice.

Decision

Lord Arthurson stated that there was a significant deterioration in Mrs Giblen’s condition and there were clear signs of delusional beliefs. Had Mrs Giblen been monitored by the professionals charged with her care, the deterioration of her mental state would have been noticed and treated. He was of the view that the defenders were negligent in their post-discharge care of Mrs Giblen and that her deterioration and death could have been avoided.

Loss of Society

The pursuers in the case, Mrs Giblen’s mother, siblings, and children were each awarded damages for Loss of Society under section 4(3)(b) of the Damages (Scotland) Act 2011. Loss of Society is an award given to relatives of a deceased who has suffered a wrongful death. It compensates the family for the distress, anxiety, grief, and sorrow they have suffered as a result of their relative’s death.

Mrs Giblen’s mother was awarded the sum of £100,000. It was noted that she had experienced considerable distress and anxiety. She collapsed when Mrs Giblen was taken to hospital by ambulance. Her grief was clearly exhibited in a physical way.

Mrs Giblen’s siblings had a distant relationship with her, and the judge considered that they had ostracised her. Lord Arthurson awarded them £5,000 each. Mrs Giblen’s children were aged 13 and 15 at the time of her death. They were awarded £70,000 each in damages.

There have historically been differences in Loss of Society awards between those made by the judiciary and those by a jury, with a jury typically awarding higher damages. In the joint appeals of Hamilton v Ferguson Transport (Spean Bridge) Ltd and Thomas v Dennis Thomson Builders Ltd 2012 it was recommended by Lord Hamilton, to deal with the divergence in awards, that the jury should be given special guidance in relation to the award granted in each case. He also suggested that the judiciary should consider the awards made by juries when deciding the level of damages.

Since this decision there has still been inconsistencies between Loss of Society awards made by the judiciary and by a jury. For example, in Hamish Stanger and others v Flaws and Proctor (2016) the jury awarded £120,000 to the widow of the deceased and £50,000 each to the deceased’s sons. The decision by Lord Clark in Manson v Henry Robb Ltd (2017) came soon after this and, in contrast, an award of £75,000 was made to the widow of the deceased and £30,000 each to their children.

Lord Tyre indicated in Jennifer McCulloch and Others v Forth Valley Health Boards (2020) that in Loss of Society claims the age of the children was relevant in deciding the value of the award. Children who had reached adulthood should be awarded less as they had not lost a parent during their childhood. In that case, had the claim been successful, £80,000 would have been awarded to each of the children who were aged 7 and 18 months when the deceased died. In Robert McArthur & Others v Timberush Tours Limited & Another (2021) the parents of the deceased were awarded £100,000 each by Lord Armstrong due to their close relationship.

In Paterson and Others v Lanarkshire Health Board the awards for Loss of Society for the children of the deceased are in line with recent case law and reflect the age of the children at the time of death. The award to the siblings of the pursuer indicates the distant relationship they had with Mrs Giblen. The high award that was made to Mrs Giblen’s mother is indicative of the close relationship they had. This decision also demonstrates the continuing trend of an increase in the value of damages being awarded by the judiciary in Loss of Society claims.