Loss of society — limitation of awards finally?
George Andrews v Greater Glasgow Health Board  CSOH 31
The sums likely to be awarded for loss of society claims are difficult to predict for both pursuers and defenders. There has been an inflation of value over time and a wide divergence between awards made by juries and the judiciary. This recent decision mirrors the more restrictive judicial approach outlined in the relatively recent case of Manson v Henry Robb Ltd  CSOH 126.
Section 4(3)(b) of the Damages (Scotland) Act 2011 allows relatives of a deceased person to make a claim for damages in respect of:
- 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 been expected to derive from the deceased's society and guidance if they had not died."
These are often referred to as loss of society claims.
The court may make an award in respect of the above that it “thinks just” which implies a wide discretion. However, the case law to date has shown a wide divergence in amounts awarded by juries compared with the judiciary, with juries being inclined to award larger sums including the largest award of civil damages in Scottish legal history in the case of Anderson & Others v Brig Brae Garage Ltd  [H.S. At W. 2015, 21(3),6].
In an attempt to remedy the inconsistency of awards Lord President Hamilton in 2012 recommended that juries be given judicial guidance as to the level of award whilst the judiciary was also provided with guidance recommending that they have more regard to the level of damages being awarded by juries.
The subsequent case law has been decidedly mixed as to the level of award but an upward trend can be discerned. As the subsequent Anderson case showed, the guidance of the Lord President did not preclude juries from making high awards and the judicial guidelines also allowed judges to make higher awards. The general trend towards higher awards continued post-Anderson until Manson in 2017. In that case, a 79-year-old widow received £75,000. This was awarded by a judge rather than a jury and was significantly less than in previous cases.
A factor for assessment of loss of society awards is the particular and unique features of the relationship of the pursuer and the deceased. This will lead to increases and decreases in the amounts awarded especially when juries assess the level of damage. In Manson, the family was particularly close with adult children still living at home at the time of the deceased’s passing. However, the judge also looked closely at the age of the deceased and his life expectancy as well as the age of the pursuers. The relatively poor medical history of the deceased and his limited life expectancy as well the age of his widow and children appear to have driven down the level of damages. This decision appeared at odds with the awards made since the Lord President introduced his guidelines.
The court’s decision
In Andrews v Greater Glasgow Health Board the pursuer was the partner of the deceased. The deceased had passed away as a result of medical negligence and Lord Pentland found that the loss had been incurred pursuant to s. 4(3)(b). Having regard to recent decisions including Manson and taking into account the deceased’s life expectancy of 7.5 years, as well as the pursuer’s evidence, £75,000 was awarded.
The decision appears to be closely following the decision in Manson in that, although the nature of the relationship with the deceased remained very important, the life expectancy and medical history issues were also crucial factors in the award.
Conclusions and implications
This decision may indicate a judicial determination to take a more critical approach to the assessment of loss of society damages and to treat medical history and age as relevant factors in making a just award. Defenders and their insurers will be tempted to welcome the dawn of an era of potential limitation of awards but it should be remembered that the body of cases outlining the new approach is thin, previous cases in this area have failed to set a definitive precedent and that pursuers may seek to escape judicial assessment by opting for jury trials.