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Shaher & Ors v. British Aerospace Flying College [2003] ScotCS 155 (29 May 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Abernethy

Lord Johnston

A1928/01

OPINION OF THE COURT

delivered by LORD MARNOCH

RECLAIMING MOTION

in the cause

MOHAMMED ALI SHAHER and OTHERS

Pursuers and Respondents;

against

BRITISH AEROSPACE FLYING COLLEGE LIMITED

Defenders and Reclaimers;

_______

Act: Brady, Q.C., Gilmore; Henderson Boyd Jackson W.S. (Pursuers and Respondents)

Alt: MacAulay, Q.C., Arthurson; Simpson & Marwick W.S. (Defenders and Reclaimers)

29 May 2003

[1] This is a reclaiming motion which is now insisted in only in respect of the Lord Ordinary's assessment of what, for ease of reference, I shall term the bereavement or "loss of society" claims advanced by the first and second pursuers and respondents under and in virtue of section 1(4) of the Damages (Scotland) Act 1976 as amended.

[2] The facts of the matter, although tragic, are simple enough. The first and second pursuers are the parents of the late Tareq Shaher who died at the age of 19 years in a flying accident while undergoing training with the defenders and appellants. There is no dispute but that there were the closest bonds of affection between him and his parents and the Lord Ordinary accepted that for these particular pursuers the loss of the eldest son had a "special significance". In that situation the Lord Ordinary dealt with the matter very briefly as follows:

"Current jury awards, which are the only recent guidance available, suggest that awards for loss of society should be between £30,000 and £35,000 for each parent. I refer to Strang v. Le Brusq, 2001 Green's Rep. L.R. 52. In these circumstances I see no reason why the first pursuer as an individual and the second pursuer in the present case should not be award (sic) £35,000 each for their claim for loss of society."

[3] Unfortunately, apart from Strang, the Lord Ordinary does not specify which jury awards he had in mind and nor does he make reference to two judicial awards to which we were assured he was referred, namely Jarvie v. Sharp 1992 S.L.T. 350 (parents of a six week old daughter each awarded £10,000 for loss of society) and Devlin v. Strathclyde Regional Council 1993 S.L.T. 699 (opinion obiter that mother and step-father of a 14 year old boy should each be awarded £5,000 for loss of society). The reasonable inference might be that the Lord Ordinary derived little assistance from the judicial awards but the failure to specify the jury awards he had in mind can only be described as unfortunate since, as Lord Kingarth pointed out very clearly in McManus' Executrix v. Babcock Energy Ltd. 1999 S.C. 569, at p. 583, because of their very nature (being made without reasons and without reference to other awards) the court must be guarded in relation to any single jury award whereas a pattern of apparently similar jury awards will, to use Lord Kingarth's words, "be of plain assistance". In these circumstances we are persuaded that the Lord Ordinary has given insufficient reasons for his decision and that it is accordingly right for this court to consider the matter of quantum de novo.

[4] In the event, counsel's researches disclosed a real dearth of authority in this area and, as we intend shortly to demonstrate, such guidance as is available in our view places the court in a most unenviable and difficult position. No assistance can be derived from England because the sums awarded there for bereavement are enshrined in statute. So far as Scottish judicial awards are concerned, it is instructive to note that as recently as 1999, in McManus' Executrix supra, Lord Kingarth, after a careful analysis of earlier judicial awards, took as his "base figure" for an award to a widow the sum of £15,000. Recognising certain special features in the case and accepting that judicial awards in this area had, to a degree, fallen out of step with the general level of awards Lord Kingarth felt able in that case to award the widow an increased sum, but even that was limited to £20,000. As regards an award to parents of an adult son, however, it appears that the most recent judicial award was one made by the Inner House in 1986 in Donald v. Strathclyde Passenger Transport Executive 1986 S.L.T. 625. In that case the First Division of the court overturned decisions by the sheriff and the sheriff principal and awarded £1,650 to each of the parents of a 21 year old son. We were advised that, even index linked to January 2003, this sum still only equated to £2,970 for each parent. This falls to be compared with the awards made in Jarvie and Devlin supra. It is true, of course, that, apart from McManus' Executrix, all the judicial awards referred to above were made prior to what Lord Kingarth accepted as clarification of the law by the amendments made to section 1 of the Damages (Scotland) Act 1976 by the Damages (Scotland) Act 1993. But, even so, it is immediately apparent that there is a huge gulf between judicial awards for bereavement and the jury award in Strang v. Le Brusq which was relied on by the Lord Ordinary in the present case. In Strang, incidentally, the adult son was aged 21 years at death and the loss of society award for each parent was £30,000. Before us, however, reference was made to other jury awards which may or may not have been in the mind of the Lord Ordinary. The first of these was Wells v. Hay 1999 Green's Rep. L.R. 44 in which a total of around £37,000 was awarded to a single mother of a 19 year old son who was killed in a car crash. A motion for a new trial, which was pending when McManus' Executrix was decided, was, we were informed, subsequently abandoned. More generally, reference was made to Kempton v. British Railways Board May 18, 1993 (reported only in McEwan and Paton) where the deceased was aged 29 years at death and the jury awarded to the 37 year old widow and two sons aged 12 years and 8 years the sums of £35,000, £11,500, and £11,500 respectively. Finally, reference was made to the recent case of McIntosh v. Findlay 2001 Green's Rep. L.R. 66 where a posthumous child was awarded £37,500 in respect of the death of his father.

[5] In light of the above Mr. MacAulay, Q.C., for the defenders and appellants, submitted that there was no clear pattern to be derived from the jury awards which could support the Lord Ordinary's award and that an appropriate award should not exceed £10,000 for each parent. Mr. Brady, Q.C., for the pursuers and respondents, on the other hand, submitted that the awards in Strang and Wells were "striking in their coincidence" and, moreover, were generally in line with the bereavement awards made in Kempton and McIntosh. In that connection he pointed out that the index linked figures for Kempton were now in the region of £44,000, $14,500 and £14,500 respectively. It followed, according to Mr. Brady, that, despite the paucity of his reasoning, the Lord Ordinary had properly arrived at the sum of £35,000 for each of the pursuers.

[6] As it seems to us, there is clearly a huge gulf not only between the level of judicial awards and the level of two recent jury awards in respect of the loss of an adult child but between the level of judicial awards and the level of recent jury awards so far as bereavement generally is concerned. This, in turn, is reflected by a similar gulf as between the submissions advanced on behalf of the defenders and appellants, on the one hand, and, on the other hand, those advanced on behalf of the pursuers and respondents. We would be less than frank if we did not immediately concede very real difficulty in finding a way to bridge that gulf. In attempting to do so, however, we remind ourselves at the outset that, since the decision of the House of Lords in Girvan v. Inverness Farmers' Dairy 1998 SC (HL) 1, there can be no doubt whatever that the court is encouraged to look for guidance to jury as well as to judicial awards of damages. I refer, in particular, to what is said by Lord Clyde:

"In a system in which damages may be assessed in different cases either by a jury or by a judge it is essential, not only for the profession, but also for the court both in the making of awards and in the consideration of awards which have been made, for there to be available a convenient record of awards by juries as well as by judges."

Indeed, as Lord Hope of Craighead makes clear at p. 7 of the Report, the "overall philosophy" of Scottish practice is that the assessment of damages is first and foremost a matter for a jury. We, ourselves, might go further and suggest that it is this very philosophy which gives to awards of damages in this area their essential legitimacy. These awards, as it seems to us, should in the end reflect the expectation of the society which the legal profession serves and represents, rather than be simply an invention of that profession. On the other hand, we see immediately the force of Lord Kingarth's observations anent the danger of relying on only one jury award and the desirability of finding some consistent pattern as between a number of such awards. In this connection, a wide disparity between jury and judicial awards was not, it seems, foreseen by the House of Lords in Girvan and, indeed, the assumption made by Lord Hope of Craighead at p. 17 of the Report is that jury and judicial awards would fall within the same "relatively narrow range of figures".

[7] In the result we find ourselves persuaded that the four bereavement awards made by juries in recent years do disclose a pattern which demonstrates that in this general area judges have indeed become "out of touch with awards made by juries in the exercise of their proper function" - Girvan, supra, per Lord Hope of Craighead at p. 12. At the same time, we are not confident that these four awards go the length of establishing that loss of society awards to parents of adult children should now be taken to lie between £30,000 and £35,000 for each parent, which was the basis on which the Lord Ordinary proceeded in the present case. Rather do we think that there is yet the possibility that other jury awards in this area, perhaps even within the next few months, may disclose a broader and different pattern which in the end will prove more reliable. It follows that, while this court must do its best to make reasonable and fair compensation to the pursuers applying the limited guidance presently available, the sums actually awarded cannot, and should not, be regarded as being set in stone or, indeed, as representing any sort of tariff. Further experience of jury awards may well show them to be either too low or too high. All that having been said, doing the best we can on the material presently before us, we are of opinion that a fair and proper award to each parent in the present case is a sum of £20,000. An interlocutor will be pronounced to that effect.