Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 34
PD2432/12	OPINION OF LADY WISE in the cause (FIRST) JAMES CURRIE; (SECOND) MARGARET CURRIE and (THIRD) EUAN CURRIE Pursuers; against ESURE SERVICES LIMITED Defenders: ________________

Pursuers: L Dunlop QC; Allan McDougall

Defender: Murphy QC; Simpson & Marwick

21 February 2014

Introduction

[1] The first pursuer is the father of the late Gavin Currie ("Gavin"/"the deceased") who died on 30 December 2011 following an accident on 28 December when, as a pedestrian, he was hit and fatally injured at a zebra crossing. The first pursuer sues as executor dative and as an individual. The second pursuer is the mother of the deceased and the third pursuer is the older brother of the deceased.

[2] The defenders admit liability for the accident and no issue of contributory negligence arose at the proof before me. In summary, the deceased was walking on a pedestrian crossing in Main Street, Neilston, Glasgow shortly after 10pm on 28 December 2011. A Ford motor vehicle driven by the defenders' insured failed to stop at the pedestrian crossing. The female driver had failed to notice the deceased. She hit him with her car fatally injuring him. Having been taken by ambulance to the Royal Alexandra Hospital, Glasgow that night, Gavin Currie died as a result of his injuries on 30 December 2011. Prior to proof, damages to be awarded to the first pursuer qua executor dative were agreed in the sum of £7,211 inclusive of interest and the issue of contention between the parties that requires determination is the level of loss of society awards to all three pursuers. Senior counsel for the defenders intimated at the outset of the proof that he did not intend to lead any evidence.

Evidence for the pursuers

[3] The second pursuer, the deceased's mother, was led in evidence first. She was 60 years old at the date of proof and confirmed that she, her husband, her surviving son and most of her extended family hailed from Neilston, a small village close to Paisley in Renfrewshire. She and her husband, the first pursuer, married in 1977 and their older son Euan was born in 1983. While Euan still lives in the area, he has resided in his own accommodation for about 7 years. The deceased, Gavin, was born on 13 January 1986 making him about 21/2 years younger than his older brother. The second pursuer described the brothers as "different but inseparable". The older boy Euan was prone to get into trouble from time to time but Gavin appears to have been a sensible and mature boy from a very young age. The boys were close to their grandparents who lived locally but who had died prior to the accident in 2011. Gavin attended a local primary school and then completed his secondary education at Eastwood High School in Newton Mearns. He was a good pupil who worked hard and was interested in a number of activities. He was involved with a close group of friends of both sexes from childhood. The Curries were a close knit family and various photographs lodged in process and spoken to by the second pursuer are consistent with that. The family managed to enjoy good family holidays. As the second pursuer works as an office administrator for an airline she obtained certain perks which assisted that. Mrs Currie spoke of her deceased son as a very kind boy who looked out for both the old and the young. He helped his grandmother with shopping when she required it and he was known as the responsible member in his social group. One of his best friends asked him to be a godfather to his young child.

[4] At home the two brothers shared a room until Euan left home in about 2006. Gavin worked well at school and his ambition from an early age was to be an electrician like his father. He was apprenticed with Balfour Beatty. Just after his apprenticeship was completed he was sent to Oxford to work but came home every second weekend to see his parents. Mrs Currie described driving as Gavin's passion and he had secured his driving licence aged 17. Following the period in Oxford Gavin travelled all over the UK with his work. He was involved in working on the electrical aspects of wind farms. He "hated" being away from home and would commute fairly long distances rather than stay away. His last job was in Dingwall which was clearly too far to commute so he would leave very early on a Monday morning and drive home on a Friday. He had been working in Dingwall for several months by the time of his death. Although Gavin had been far less interested in playing football than his older brother, he did support the local Neilston Juniors team and was a loyal follower of them as an adult. He was also involved in a relationship with Lisa Walker of whom Mr and Mrs Currie were very fond. The relationship was a serious one and Mrs Currie explained that after Gavin's death she had discovered that they had planned to get married and have a family.

[5] The date of the accident, 28 December 2011, was a Wednesday. Gavin had taken a three week break from work to be with his family at the festive period. He and his friends had been watching football and then had gone out for a drink. Gavin had left the group to take money out from a cash machine in the Main Street of Neilston. The second pursuer was at home and had texted Gavin but he had not responded. The doorbell then rang frantically and April, Euan's girlfriend, was at the door. She told Mr and Mrs Currie that Gavin had been knocked down. The second pursuer could not bear to see her son lying in the street but she was taken by her brother and April to the Royal Alexandra Hospital in Paisley. The first pursuer and several of the deceased's friends gathered at the hospital. At some point the first pursuer, who had spoken with the doctors, held his wife and told her that there was nothing more that could be done for their son. They and their son Euan were all allowed into the room in the hospital where they took turns at sitting with Gavin. They stayed at the hospital all night and well into the next morning when they gave permission for organ donations. The second pursuer was too distraught to watch Gavin take his last breath.

[6] A humanist service was held on 12 January 2012, the day before what would have been Gavin's 26^th birthday. The second pursuer spoke to the funeral order of service, no.6/3 of process, and a letter from an organ recipient who had been helped as a result of the donation (no. 6/14 of process).

[7] The second pursuer felt unable to return to work until March 2013. She reduced her hours but continues to work at Glasgow Airport. She explained that she still cries every night and feels she cannot come to terms with the loss of her son. She described herself as a changed person, every day is a struggle and she feels unable to attend family functions. She receives some medication from the doctor to help her sleep but it was of little assistance. She has been unable to remove Gavin's clothes from his room. While offered counselling, the second pursuer has not taken it up. She considers there to be no cure for her loss. She and her husband attended the court proceedings against the driver of the vehicle that killed their son. The first and second pursuers have enjoyed a very strong marriage. The loss of their son has at times brought them even closer together although at other times it has caused a strain. Mrs Currie described the struggle that her surviving son Euan had suffered in trying to come to terms with his brother's death. He was still unable to go up to Gavin's bedroom when he came to visit. Euan and his partner April became parents in November 2012 and the first and second pursuers became grandparents as a result. However, Euan and April have separated and Mr and Mrs Currie have not seen the baby for some months. Mrs Currie was not cross examined on behalf of the defenders.

[8] James Currie, the first pursuer, gave evidence that he was 61 years old at the date of proof and an electrician. Again he described his deceased son Gavin as very different to his older son Euan. Gavin was particularly interested in electronics from a young age and wanted to know how things worked, while Euan was interested in football. Mr Currie had been keen for Gavin to go on to attend university but it was clear when he was 16 years old that he wanted to embark on a career as an electrician. Mr Currie was clearly proud of Gavin having secured one of only three apprenticeships offered by Balfour Beatty in Scotland. Mr Currie shared a number of interests with Gavin. They went hillwalking together and they were both keen on politics and current affairs. The first pursuer is quite an active trade unionist and Gavin was very interested to learn about that once he started work himself. Mr Currie explained also that Gavin became interested in ecological matters and they would have many discussions about green energy as opposed to nuclear energy and related matters. As Gavin had been involved in the development of a wind farm on Eaglesham Moor and had been working there from the outset of the project, the company had used him in promotional literature and he had received awards. Mr Currie described Gavin as an excellent swimmer who kept himself fit. Much of the information spoken to by his wife was confirmed in the first pursuer's evidence.

[9] So far as the accident was concerned, Mr Currie described the circumstances in which he and his wife had been told of it, their attendance at the hospital, breaking the news to his wife that there was nothing that could be done for Gavin and the process of organ donation, all of which he found extremely harrowing. His wife had disappeared for a while after she had been told the news and he described her as having a breakdown. Initially, the first pursuer had taken three to four weeks off work following Gavin's death to cope with his bereavement. However, as the second pursuer and Euan were not coping very well, he ended up taking a total of about four months off work. Mr Currie described himself as a private person who did not feel that counselling would assist him. He was also not keen to take too much medication. He described his older son Euan as having changed markedly as a result of the loss of his brother. Where once he had been a "party animal" he was now fairly withdrawn. He had suffered difficulties at work and his relationship with April had broken down. He had stopped confiding in his mother.

[10] Under cross examination, Mr Currie agreed that Gavin had been committed to Balfour Beatty with whom he had worked since leaving school. It was likely that he would have required to work at various places in the UK had he stayed with the company. Mr Currie did not, however, agree with the suggestion that he might have had to work abroad in the longer term as the company had sufficient work in the UK to cater for all their employees. In re-examination Mr Currie agreed that the other projects with which Gavin might have been involved in the future would have been places such as Dingwall where he had been in 2011. He might well have followed a pattern of working away Monday to Friday but coming home at weekends.

[11] Euan Currie was the last witness called in the pursuers' case. He confirmed that he was 30 years old and lived in a flat in Neilston about 5 to 10 minutes walk from his parents' house. He had lived there for 7 years. He is a qualified plumber working in Glasgow. He described his younger brother Gavin as being someone who kept him out of trouble. He said "I was up to no good and he was the sensible one". Despite the 21/2 year age gap the boys played together constantly as children, kicking balls in the park and playing tennis. Euan explained that his brother had been 2 years below him academically at school. Gavin would help him out whenever he was in trouble. On one occasion he had forged their mother's signature so that Euan could get away with not telling her about a punishment exercise. The brothers had bunk beds in a shared room and Gavin was the tidy one. The two sons had both been very happy in their chosen work, Euan loving his apprenticeship as a plumber and Gavin attending the same college as he had for his electrician's apprenticeship. While Euan had always been keener on football, he confirmed that Gavin would join him at Neilston to support the local Neilston Juniors team every week. He and Gavin had often socialised together in a crowd of young people who all knew each other from primary school days. After Gavin worked away from home, Euan would still see him every Saturday and Sunday. Gavin did the electrical work in Euan's garage and house. Euan described very good holidays with his brother in the company of a group of mutual friends. They had been to Mexico and Ibiza. Gavin's accident took place very close to Euan's home. When he was alerted, he went out to find his brother lying in the street. Again, he described the process of requiring to wait at the hospital after they knew that Gavin would not recover. Euan confirmed that he had suffered personal difficulties of his own following his brother's death. He had split up with his girlfriend and had left his job. He was now establishing a relationship with his young daughter. Euan was involved in a charity football game that was held in Gavin's memory. He spoke to no 6/10 of process, a newspaper article about the match. Gavin's girlfriend Lisa was also involved. The match took place in May 2012 and raised a significant amount of money. A trophy was also purchased which is known as Gavin's trophy and Euan gives it out each year to the Neilston Junior's player of the year at the end of season dance. Euan described a big change in his mother since Gavin's death. He said she was not really the same person. She had been a confident, outgoing woman who was always seen in the village but now tends to stay indoors. He thought his father internalised his grief more. Euan said he still thinks about Gavin every day.

[12] Under cross examination, Euan Currie agreed that his own father had worked away a lot as an electrician, all over the UK. When Gavin had first gone to work in Oxford, Mrs Currie had been on her own quite a bit. That had been a period of some change in her life when both of her boys stopped being in the home. In re‑examination, Euan confirmed that Gavin would often stay at home even when working away. For example, he had travelled back and forwards to Stranraer when he worked there.

Submissions for the pursuers

[13] In seeking damages of £65,000 for each of the first and second pursuer and £35,000 for the third pursuer, senior counsel for the pursuers referred to section 4(3)(b) of the Damages (Scotland) Act 2011. There was no dispute that awards should be made in respect of the grief and sorrow of each of the pursuers caused by the deceased's death. An issue also arose as to whether the provisions of section 4(3)(b)(i) were also relevant, namely the distress and anxiety endured by these relatives in contemplation of the suffering of the deceased before the deceased's death. There was no material difference between section 1(4) of the 1976 Act and section 4 of the 2011 Act. The starting point for assessing damages in a case of this sort was now the five judge bench decision in Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486. The case involved two pursuers who had, separately, raised actions for damages in respect of the death of a close relative. Each had received a jury award following which the defenders in each case enrolled motions for a new trial on the basis that the damages awarded were excessive. A five judge bench of the First Division was convened due to the importance of the issues under discussion. In essence, the applicants and defenders had argued that the awards were excessive and that new trials should be granted. Further, it was contended that new trials in which no guidance on damages were given to juries would be contrary to article 6 ECHR. Having heard detailed argument, the First Division expressed the view (at para.63) that the objective must be to seek to narrow the disparity between judicial awards and jury awards. Three measures could be taken to achieve that. First, the judges should have significantly more regard to available jury awards particularly where they demonstrate a pattern; secondly, juries could be given fuller guidance than hitherto by the presiding judge as to the level of damages which, consistently with other cases, might reasonably be awarded by them; and, thirdly, appellate courts could continue to intervene, where necessary, on comparative justice grounds. It was accepted in Hamilton that the process would take time and experience to mature. Previous jury awards which had been made without the benefit of judicial guidance may be at greater risk of being arbitrary or being influenced by illegitimate factors. On that basis, senior counsel explained that she would not seek damages at the level awarded in the "Nimrod" cases, discussed in Hamilton v Ferguson Transport, which had been in the £100,000 bracket. Further it was accepted that the Thomson award which was that of the second pursuer in the Hamilton case, at £90,000, had been too high.

[14] Reference was made to the decision of Lord Drummond Young in the Outer House in McGee v RJK Building Services Ltd 2013 SLT 428. Following the guidance in Hamilton v Ferguson Transport, the Lord Ordinary increased the spouse's award that would have been made using previous judicial decisions by 50% and then adjusted it further to reflect special factors. So far as awards to the children in that case were concerned, the Lord Ordinary doubled comparative judicial awards for the daughters and increased the award to the son by 50%. The other post-Hamilton v Ferguson decision referred to was Ryder v Highland Council 2013 SLT 847. There, Lord Tyre expressed the view that, had he been awarding damages, he would have increased the award to a son for the loss of his mother based on previous judicial decisions from £25,000 to £40,000. The starting point was the decisions in Bellingham v Todd 2011 SLT 1124 and Wolff v John Moulds (Kilmarnock) Ltd 2012 SLT 231 to which the uplifts would have been applied.

[15] Ms Dunlop, QC, submitted that the most similar judicial award to the present case was that of Shaher v British Aerospace Flying College Ltd 2003 SC 540. There, a student had died in a flying accident while undergoing training with the defenders. His parents raised an action for damages including for loss of society. The Lord Ordinary, having referred to jury awards, awarded each parent £35,000. A reclaiming motion by the defenders was allowed on the basis that the Lord Ordinary had given insufficient reasons for his decision. The significant gulf between judicial awards and certain jury awards was noted and views were expressed about the possibility that a consistent pattern of jury awards might emerge and prove to be a reliable guide. In the absence of such a pattern, however, the court expressed the view that a fair and proper award to each parent was in the sum of £20,000. Senior counsel submitted that at present values the award on the basis of Shaher would be £28,000. The issue was by how much that should be uprated. In trying to bridge the gap between judicial and jury awards, it should be noted that juries take very seriously the loss of a child who had become a young adult. This was hardly surprising as the loss of a child at this age was particularly cruel in adverting as it did the natural order of things. No one expects their child to pre-decease them and when they did so it was a particularly devastating grief. Accordingly it could be suggested that the present value award of Shaher should initially be doubled (to £56,000) to reflect the importance of this particular type of loss. Counsel then argued that an element could be added on to reflect what was missing from Shaher, namely the family involvement in the terrible events of the night of 28 December 2011. It was submitted that for each parent, hearing news of the accident very soon after its occurrence and realising that their son had been badly hurt, fell within section 4(3)(b)(i). The evidence about rushing down, the trip to the hospital, the waiting, the news of Gavin's condition and Mrs Currie's reaction to it was all highlighted. Reference was made in this context to Ross v Pryde 2004 Rep LR 129.

[16] Senior counsel accepted that an award equivalent to the jury award in the Thomson case, heard together with Hamilton, was too high. It had been an award of £90,000 which in present day terms would be worth over £96,000. In that case the deceased's son had established a family, thus the element of sorrow at the loss of the chance of grandchildren was absent. Considerable emphasis was placed on the dicta of the then Lord President in Hamilton v Ferguson Transport (at page 520) where it was stated that even if the "100% working rule" was applied, the jury award in the Hamilton case was still beyond the latitude to which the jury was entitled but that the position in relation to Mr Thomson's award "may be less compelling". It was suggested that it could be deduced from this that half of the award made to Mr Thomson by the jury was not seen by the court as the upper limit of reasonable. In all the circumstances it was suggested that £65,000, as being effectively the updated mid-point between Shaher and Thomson was appropriate. This was a family who continued to grieve very deeply. The evidence illustrated that in addition to the obvious loss of the joy of Gavin's presence and enjoyment of knowing about his busy and active social life, was sorrow at the loss of someone who was plainly a young man of character, personality, with solid values and an interested and lively mind. The pain of the second pursuer was clearly visible and was manifested in her reduced working hours and social activities, and her ongoing mourning at home. The first pursuer had a different presentation but was grieving no less. He did not mask a very deep sadness despite his determination to support his wife and other son. For both the first and second pursuers, the contemplation of the grandchildren that they would never now have through Gavin was a feature. Had Gavin lived he would have provided them with continued company and support and it is likely that they would have remained very close emotionally to his parents throughout their natural lives. It seemed unlikely that he would have made his home a long distance away, albeit that he might have had to work away from home for spells of time. It is likely that he would have been a faithful and supportive son to his parents in their later years as he had been a dutiful son when younger.

[17] So far as Euan Currie was concerned, counsel noted that siblings only entered the "loss of society" category after changes made by the Family Law (Scotland) Act 2006. Those changes had been proposed by the Scottish Law Commission in 2002. Ms Dunlop, QC, submitted that the award for Euan should appear proportionate to that of his parents. A close sibling relationship had existed and Euan had also suffered the distress and anxiety of seeing the scene of the accident and his brother lying on the road. He had plainly been affected by the loss of his brother and it seemed likely that his impaired functioning made some contribution to the difficulties he experienced in his personal and working relationships after the accident. The three sibling awards of interest were a recent jury trial award of £8,000 in Kelly v UCS Ltd (in liquidation) 2012 Rep B 107-6; £10,000 in Bellingham v Todd 2011 SLT 1124 and the jury award in Young v Advocate General for Scotland 2011 SLT (News) 38 of £60,000 which would be £64,200 at present rates. The sibling question in Kelly v UCS was the sibling of an 82 year old man. The authority of Hamilton v Ferguson Transport was to the effect that the award in Bellingham was "markedly undervalued". The jury award in Young was on any view too high. Accordingly, £35,000 as an award for Euan was not out of place in what was a somewhat disparate group of comparators.

[18] In addressing how the awards suggested could be cross checked, senior counsel referred to the case of McGlone v Greater Glasgow Health Board 2013 SCLR 459, a recent judicial award for serious psychological sequellae of an injury. While it was accepted that the case was very different, it was perhaps noteworthy that a figure of £110,000 had been awarded as solatium. Some wider cross checks were discussed including considering what could be purchased with the award made. Further, looking at average earnings in the UK, it might be asked how an award fitted in with what was important to people in other contexts of their lives. The only jury award available at post-Hamilton v Ferguson was that in Kelly v UCS Ltd where an award of £40,000 had been made for the grief suffered after loss of an 82 year old spouse. That was a significant award and justified the figures being sought for the pursuers in this case.

Submissions for the defenders

[19] Mr Murphy, QC, for the defenders moved that in addition to the agreed sum of £7,211 to be awarded to the first pursuer qua executor decree should be pronounced for the sum of £27,000 in favour of each of the first and second pursuers, each award to carry interest on 50% of that sum at the rate of 4% per annum from 30 December 2011 until decree. Further, decree should be pronounced in favour of the third pursuer in the sum of £18,000 again with interest on 50% of that sum at the rate of 4% from 30 December 2011 until date of decree.

[20] Senior counsel made some general observations about the case and the evidence led. He submitted that there was no material dispute about the nature of the family relationship which was close knit. The deceased had started a promising career and had been involved in an established relationship with his girlfriend. He had given his parents 25 years of pleasure, affection and love. Given his career path and his loyalty to the company for which he worked, it seemed likely that he was on the cusp of leaving the family home to become a young independent adult when he died. That, at 25 years old and working regularly away from home, was to be expected. Mrs Currie's impression that he "hated" being away from home was not borne out by the evidence of him enjoying driving, travel and the countryside. Gavin's older brother Euan Currie had left home about 5 years prior to the accident by which time Gavin had also left for Oxford. This was an entirely normal set of circumstances where in a close family the young adults grew up and moved on. Mrs Currie had experienced these changes prior to the loss of Gavin through an accident. Euan had, of course, lost a friend and companion with similar interests. It was accepted that it was probable that the brothers would have remained close although Gavin's need to travel for the purposes of work would likely have resulted in less contact as the years past. While it was not disputed that Gavin's death had been devastating for this family unit, that was simply a generalisation with no meaning for a court faced with the task of quantifying the pursuers' claims. Much of the history explored in evidence was only inferentially relevant for the purposes of valuation of a section 4(3) claim. The loss under that section is restricted to the period first from the accident until death under paragraph (i) of subsection (3) and secondly after death in terms of paragraphs (ii) and (iii) of subsection (3). The history was of the family being happy but it had already gone through the inevitable changes when the children had become adults. What was important was the picture prevailing immediately before the accident and what one infers would have happened in the future. The decision to donate Gavin's liver and kidneys was not a situation "caused by Gavin's death", rather it may "arise" from Gavin's death in the sense that it was something that arose post-death as a consequence but it was a voluntary decision for the family to take. Mr Murphy submitted that it was questionable whether or not this case, properly viewed, attracted the section 4(3)(b)(i) component. It seemed clear that, for Gavin, death was almost instantaneous and in any event, objectively Gavin did not appear to have been suffering. There was no evidence at all that he was suffering. However, it was accepted as being likely that the issue of the period between the accident and the actual death could be covered under section 4(3)(b)(ii) if one took a broader view that the grief and sorrow of the family may have been heightened owing to the circumstances. What the court required to award was "just compensation". Loose and emotional language about the loss of another human being or the irreplaceable nature of a brother or son must be treated with care and even scepticism. That was one of the problems where cases of this sort were heard by juries. Careful attention had to be paid to the language of the subsection.

[21] Mr Murphy described the catharsis of being in the witness box as being a product of the process that a pursuer must follow if damages are to be awarded, absent agreement. The extent to which that process assisted in the assessment of compensatory damages was open to question: many judges have found an award of compensation for this type of loss conceptually difficult to understand and quantify. Awards could really only be made based on consistency and comparative justice. No value judgement can really be made as regards the quality of grief and sorrow experienced by the first and second pursuers. It was unlikely that Gavin would have given his sibling and parents much guidance in the future other than perhaps, in relation to his parents, when one was a widowed parent and in later life. That would, however, involve speculation. The first and second pursuers were intelligent, articulate adults who were supportive of each other. Their claim was clearly one for loss of society and grief and sorrow in respect of an adult child. Section 4(3)(b)(iii) was not in point.

[22] Senior counsel submitted that on a proper application of the approach outlined in Ferguson v Hamilton, pre-Hamilton jury awards were "suboptimal" owing to a lack of judicial guidance and the consequent risk of arbitrariness and inconsistency and therefore ought to be treated with circumspection. For example, the quartet of "Nimrod" cases were very special and turned on their own facts. Secondly, post-Hamilton v Ferguson Transport there were no jury awards relating to the death of adult children. The only jury award made since the Inner House guidance, Kelly v UCS Ltd, was one in which a jury awarded £40,000 to the spouse of a mesothelioma victim who was aged 82. The jury had been given a range from £40,000 to £80,000 by the presiding judge. It was interesting to consider whether, in the world of the new jurisprudence, juries might yet defer to the judges' spectrum and be more conservative than expected. Thirdly, the purposeful starting point was to make a judicial assessment and the only recent guidance in that regard could be found in the cases of Shaher v British Aerospace Flying College Ltd 2003 SC 540; Cruickshank v Fairfield Rowan Ltd 2005 SLT 462; and Bellingham v Todd 2011 SLT 1124, all as now informed by the dicta in Hamilton v Ferguson. These three judicial decisions dealt with the loss of siblings and/or the loss of children. The process of uprating in Wolff v John Moulds (Kilmarnock) Ltd, McGee v RJK Building Services Ltd and Ryder v Highland Council might also assist although it should be noted that none of them involved adult children and could be considered for the process of uprating only. Fourthly, Lord Drummond Young's approach in McGee v RJK Building Services Ltd was markedly inconsistent with the recent jury verdict in Kelly v UCS Ltd. In any event, the case of McGee related to the loss of a spouse which has always been the highest point in the hierarchy so far as level of damages is concerned. It was further suggested that the Lord Ordinary's approach in McGee lacked any convincing reasoning or analysis. Fifthly, insofar as is there is hierarchy of relationships, the highest awards having been made for spouses, awards for the loss of a child have tended to reduce as the relevant child is older and reduce still further in relation to a sibling. Of course each case was fact sensitive, but all things being equal there is a hierarchy model. Sixthly, the conclusion for the defenders was that if the cases mentioned in the third point above were synthesised a proper view of just compensation was £27,000 for each parent and £18,000 for the brother as contended for.

[23] Senior counsel provided a survey of some older cases which had been mentioned in subsequent judicial awards relating to adult children. This set the context against which the current discussion required to take place. These included the following:

1. Donald v Strathclyde Passenger Transport Executive 1986 SLT 625 - 21 year old man, eldest son of the pursuers, was hit by a bus and died 3 months later. An award of £1,650 to each parent was made and there was an indication from the First Division that it was preferable to compare "like for like" awards when dealing with the loss of a child.

2. Jarvie v Sharp 1992 SLT 350 - a baby was wrenched from her mother's arm in a car crash and died. The mother saw the baby bouncing on the road. It was her only daughter and she could not have any more children. In these special circumstances £10,000 was awarded for each parent. The very tender age of the child was a factor.

3. Devlin v Strathclyde Regional Council 1993 SLT 699 - a 14 year old boy died in a fall through a skylight at a primary school. An appropriate award for loss of society would have been £5,000 for each parent.

4. McManus' Executrix v Babcock Energy Ltd 1999 SC 569 - the spouse of a 55 year old man who died of mesothelioma was awarded £20,000. Each child was awarded £5,000. Lord Kingarth expressed informative views in relation to the relationship between judicial and jury awards.

5. Strang v Le Brusq 2001 Rep LR 52 - a 21 year old young man from a close family where he still lived at home at the date of death died in circumstances about which there was no real detail. A jury awarded £30,000 for each parent.

[24] Turning to the pre-Hamilton v Ferguson Transport judicial decisions of interest to the present case, senior counsel summarised these as follows:

(a) Shaher v British Aerospace Flying College Ltd 2003 SC 540. The details had been set out by counsel for the pursuer. Shaher was described as the first judicial decision in the recent modern era where the circumstances were on a par with this case, but it was noteworthy that all of the three elements now contained in section 4(3)(b) were present in that case.

(b) McLean v William Denny & Bros Ltd 2004 SC 656. This involved the death of a spouse through mesothelioma. Reference was made to the base figure in McManus of £20,000 and this was uplifted to £25,000 as McManus had been decided 5 years earlier. Given the hierarchy of relationships, McLean tends to consistency with the Shaher valuation of £20,000.

(c) Cruickshank v Fairfield Rowan Ltd 2005 SLT 462. An 82 year old mother was awarded £10,000 on the death of her 54 year old son. The Lord Ordinary had found "very special" bonds of affection.

(d) Weir & Others v Robertson Group (Construction) Ltd 2006 Rep LR 114. A widow and two children were awarded £35,000 and £17,000 each respectively for loss of society. It was noted that in accordance with established hierarchy of awards, an award to a widow was likely to be significantly higher than an award to parents or children of the deceased. The level of an award to a parent of a deceased child would vary according to the age of the child and the emotional dependency of the parent on the child.

(e) Bellingham v Todd 2011 SLT 1124. A 40 year old man died in a road traffic accident. His parents were awarded £15,000 each and his brother was awarded £10,000. This has been used as one of the benchmark cases post-Hamilton v Ferguson.

(f) Wolff v John Moulds (Kilmarnock) Ltd 2012 SLT 231. This action was brought by the widow and family members of a man who died aged 67 as a result of mesothelioma caused by exposure to asbestos. The Lord Ordinary made a judicial assessment on the basis of previous awards, including Bellingham and then increased or uprated those awards by 25% in light of his analysis. The relevant award made to the widow was £50,000 and the children received awards of £15,000 - £18,000 each.

[25] Following the decisions referred to above, the case of Hamilton v Ferguson Transport intervened and changed the approach. However, senior counsel suggested that the dicta in Hamilton had not been properly considered or analysed in subsequent cases. As senior counsel for the pursuers had pointed out, there were two judicial awards but only one jury award post-Hamilton v Ferguson. Each required analysis:-

(i) In McGee v RJK Building Services Ltd 2013 SLT 428 Lord Drummond Young had considered the death of the husband of an elderly woman who made claims along with her two daughters and a son. While £80,000 was awarded to the spouse it should be noted that this equated to a 60% uprate from the level in Wolff v John Moulds (Kilmarnock) Ltd. As Wolff itself was an uprated calculation, this was a questionable approach and there was no real analysis or explanation for it. The Lord Ordinary in McGee appeared to "brush aside" the jury award details in Kelly v Upper Clyde Shipbuilders where £40,000 had been awarded to the widow. It was submitted that the decision in McGee should be treated with some caution given that it represented a 100% uplift on the case of Kelly, the only post-Hamilton v Ferguson jury award with a similarly elderly spouse.

(ii) Ryder v Highland Council 2013 SLT 847. This was a claim by a son in respect of the death of his mother. The defenders were assoilzied and Lord Tyre's dicta on damages is obiter. He indicated it would be appropriate to use the case of Bellingham to uprate the claim from £25,000 to £40,000 in the light of Hamilton v Ferguson Transport. This equated to a 60% uprate or simply an increase of £15,000 but with no explanation. Lord Tyre was referred to McGee but made no material comment upon it and, as a matter of arithmetic, did not follow McGee in terms of percentage uprating. Bellingham was used as the judicial award to be uprated.

[26] Finally in this chapter, senior counsel referred to the Judicial Studies Board guidelines for the assessment of general damages in personal injuries cases and also the case of John v MJN Ltd [1996] 3 WLR 593 referred to by the Lord President at paragraph 74 of Hamilton v Ferguson Transport. The dicta in that case suggested it was offensive to public opinion that a defamation plaintiff should recover damages for injury to reputation greater, perhaps significantly, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable. The time, it was said, had come when judges and counsel should be free to draw the attention of juries to such comparisons. Such sentiments were apposite in the current case. Comparative justice could not be achieved by awarding more for bereavement than for serious physical injuries. McEwan & Paton's Damages for Personal Injuries illustrated that solatium awards for serious injuries had been seen to be less than the sums sought by the pursuers - see for example Henderson v Sutherland 2008 SCLR 219 where solatium of £37,500 was awarded to a motorcyclist seriously injured in a road traffic accident.

[27] On the basis of these submissions, senior counsel then contended that the starting point ought to be to have regard to Shaher v British Aerospace Flying College where the damages ultimately awarded by the Inner House on 29 May 2013 were £20,000 per parent. It should be noted that the deceased child in Shaher was younger than Gavin Currie but like the present case there was no dispute in Shaher that close bonds of affection existed between the young adult and his parents. At the lower end of the scale Cruickshank v Fairfield Rowan Ltd indicated that an award of £10,000 for an 82 year old mother in respect of her deceased son aged 54 might be appropriate. In Bellingham, the parents were awarded £15,000 each and the brother was awarded £10,000 in respect of a 40 year old son/brother. In Wolff Lord Doherty took the approach of uprating Bellingham by 25% in respect of the claim by the spouse which would result in £18,750 and £12,500 for the parent and sibling figures. It was noteworthy that in McGee v RJK Building Services Ltd Lord Drummond Young did not use Bellingham as a comparator, yet Wolff was based on the 25% uprating of Bellingham. As previously submitted the scant regard paid to the jury award in the recent decision of Kelly v UCS Ltd was also to be taken into account. Ryder v Highland Council was also of interest simply to the extent that Lord Tyre used Bellingham and uprated it by £15,000 or 60%. Taking these cases into account it might be reasonable to adopt the same approach as Lord Tyre in Ryder. If the Bellingham case was uprated by 60% it would produce awards of £24,000 for each parent in this case and £16,000 for Euan Currie. Even in the extreme if Bellingham was uprated by 100% that would give each pursuer a maximum of £30,000 and Euan £20,000. Mr Murphy's contention was that "just compensation in this case", consistent with other recent awards in the context of comparative justice and fairness between each pursuer and the defender could be achieved by taking a figure in the region of the midpoint between the two different upratings in Bellingham. This would produce awards of £27,000 for each parent and £18,000 for Euan. Such awards would be complimentary of each other and would not be comparatively unjust when compared to awards for actual personal injury by way of a cross check.

Discussion

[28] As indicated the facts of this case are not materially in dispute and are set out in the evidence led on behalf of the pursuers. The death of Gavin Currie, a fine young man with good employment prospects and a happy and settled family life has caused deep grief and upset to all those close to him. What I require to determine, is what should be regarded as "just compensation" for the loss of society, primarily the grief and sorrow, suffered by each of the three pursuers. It was effectively agreed that one could not differentiate between the first and second pursuers in this respect and that the awards to each of them should be the same. It is also not in dispute that the sum awarded to the third pursuer will be lower than that made to his parents, in accordance with a reasonably well established hierarchy of awards recognised by the courts over a lengthy period.

[29] The background to this dispute is the now fairly longstanding concern about the disparity between the level of jury and judicial awards of damages in cases of this sort. It was made clear in the case of Girvan v Inverness Farmers Dairy 1998 SC (HL) 1 by the House of Lords that in assessing damages the court should look for guidance to jury as well as judicial awards of damages. This was reiterated in the case of Shaher v British Air Space Flying College Ltd 2003 SC 540. However, in that case, an Extra Division agreed with a concern expressed by Lord Kingarth in MacManus Executrix v Babcock Energy Ltd 1999 SC 569 that the court must be guarded in relation to any single jury award. It is really only a pattern of apparently similar jury awards that will be of direct assistance. In Shaher, where only one jury award been referred to by the Lord Ordinary in fixing an appropriate loss of society award to two parents, a reclaiming motion was allowed and the damages of £35,000 for each parent for loss of society was substituted with an award of £20,000 each. The gap between jury and judicial awards did not appear to narrow in the years that followed although there are examples of judges attempting an uprating exercise in recognition of the need to have some regard to jury as well as judicial awards. These include, inter alia, Bellingham v Todd 2011 SLT 1124 and Wolff v John Moulds (Kilmarnock) Ltd 2012 SLT 231. Against that background, two motions for retrial were made and the issue came before a five judge bench of the First Division in the case of Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486. That decision now provides the authoritative position on the objective of removing the disparity between the two types of awards. The identification of that objective and guidance as to how it may be achieved was expressed by the then Lord President (Hamilton) in the following terms:-

"The objective must now be to seek to narrow that disparity and to eliminate, in so far as practical, that lack of consistency. That can be done by three measures: first, by judges, sitting alone or in the Inner House, having significantly more regard to available jury awards (particularly where they demonstrate a pattern); secondly, by juries being given by the presiding judge fuller guidance than hitherto as to the level of damages which, consistently with other cases, might reasonably be awarded by them; and, thirdly, by appellate courts continuing to intervene, where necessary, on comparative justice grounds as envisaged under statute since 1815. This is a process which will take time and experience to mature. As to the first element, proof as well as jury trial has been a competent mode of inquiry in personal injury actions since 1866 (Evidence (Scotland) Act 1866 (29 & 30 Vict cap 112), sec 4). There is no reason to suppose that Parliament intended that awards by juries should have priority over awards by judges - or vice versa. Judicial and jury awards give different but complementary guidance for what is a just award of damages (see para 44). In an age when life may be thought to be more precious than it may have been thought to be by earlier generations, and where consequentially the loss of the life of a close relative may seem a greater loss than it might have seemed earlier, the input of jury awards, reflective of the views of the community, may, in death cases, be particularly important. While awards made by juries without the benefit of judicial guidance may be at greater risk of being arbitrary or of having been influence by illegitimate factors, those made with that (non-prescriptive) benefit are likely to be a valuable source for assessment in future cases. As to the second element, some suggestions are made below (see para 76) as to what procedural arrangements might be put in hand. The objective should be to eliminate, or at least reduce, the disparity between judicial and jury awards while at the same time securing that 'awards...in comparable cases...bear a coherent relationship with each other' (Girvan (No 2) (1998), per Lord Clyde, p 25). If that objective is achieved, then parties whose disputes over damages are litigated can be better satisfied that they have had a fair trial - whether the adjudicating body is a judge or a jury."

[30] The present case is being decided during the process that the dicta above describes as one that will take time and experience to mature. There has to date been only one publicised jury award (Kelly v UCS Ltd) since the decision in Hamilton v Ferguson Transport. That is clearly insufficient to provide any pattern under the new system of juries being given judicial guidance as to be of direct assistance. Equally, as was made clear in Hamilton v Ferguson Transport previous jury awards must be treated with great caution, just as previous judicial decisions are to be seen as having made awards that "markedly undervalue" loss of society claims - see para 71 of Hamilton v Ferguson Transport. There was also a discussion by the First Division of what was previously regarded as the "100% working rule". That rule is a reference to dicta of Lord President Ingles in the case of Young v Glasgow Tramway and Omnibus Company Ltd [1882] 10 R 242 at 245 where the view was expressed that, unless it could be said that a jury verdict ought not to have been for more than one half of the sum awarded there was not any room for interference. In Hamilton v Ferguson Transport, in concluding that the jury award to Ms Hamilton, the first of the two pursuers in the case was excessive, the Lord President said the following:

"Even if the '100% working rule' were to be applied, the award is, in my view, beyond the latitude to which the jury was entitled. Although the position in relation to Mr Thomson may be less compelling, I am satisfied that the award to him of £90,000 solely under sec 1(4)(b) and (c) was likewise excessive."

Senior counsel for the pursuer asked me to infer from that dicta that the award of £90,000 to Mr Thomson did not so obviously fall foul of the 100% working rule. She suggested that the £65,000 she sought for each of the first two pursuers could be regarded as effectively the updated midpoint between Shaher and the Thomson jury award being discussed in Hamilton v Ferguson Transport. I do not consider that the suggested inference can be drawn from the dicta quoted above. Both the jury awards to Ms Hamilton and Mr Thomson were regarded by the First Division as excessive, even if the 100% working rule were to be applied. It seems to me that all that was being said was that £120,000 to Ms Hamilton exceeded the 100% working rule to a greater extent than the £90,000 to Mr Thomson were that rule to be applied. No figures are given for the amount that the award to Mr Thomson could be regarded as exceeding that rule of thumb, but his award was described as "likewise excessive" in a discussion about the two awards under review. Accordingly, the award to Mr Thomson remains simply as an example of a jury award that was seen to be excessive and that did not withstand a motion for a retrial. The award itself is of no assistance to me in determining the appropriate awards to the pursuers.

[31] Before leaving Hamilton v Ferguson Transport, I note that the Lord President considered (at para 78) that the task facing a presiding judge in a damages case would not be an easy one, but that the changes suggested by the court should take place straightaway and not await the promulgation of new rules. Only two Outer House decisions were put before me as having been decided in the relatively short period subsequent to Hamilton v Ferguson Transport. The first is McGee v RJK Building Services Ltd 2013 SLT 428 and the second Ryder v Highland Council 2013 SLT 847. Neither of these cases involve the loss of an adult child. Turning first to the McGee case, that involved the death of a 71 year old man who had fallen down a staircase at home due to the failure of a handrail fitted by the defenders. The deceased had sustained fatal injuries and he died two days later. The action was raised by his widow, the couple's two daughters and their son. In issuing his opinion, Lord Drummond Young (at para 32) noted that no guidance had been given in Hamilton v Ferguson Transport as to how far the award in the earlier cases such as Bellingham v Todd and Wolff v Moulds undervalued the relevant loss of society claims. He noted further that when the age of the deceased was taken into account, the awards in Wolff were markedly higher than those in Bellingham and it was not clear to what extent the difference was relevant to the First Division's criticism of the awards in the two cases. The Lord Ordinary in McGee ultimately decided that the awards in Wolff, if appropriately upgraded to account for the criticism in Hamilton v Ferguson Transport, provided a useful starting point - see para 33. In McGee the recent jury award in Kelly v Upper Clyde Shipbuilders Ltd was mentioned by counsel for the pursuer as being a lower than recent judicial awards. Lord Drummond Young disagreed with that because the deceased in Kelly at age 82 had been markedly older than the deceased in Wolff who was aged 67. Senior counsel for the defenders in this case criticised Lord Drummond Young's approach in the case of McGee. The award made to the widow was a 60% uprate from the level in Wolff. However, as Wolff itself was an uprated calculation, counsel suggested it was questionable that it should be further uprated without real analysis or explanation. While it is correct as a matter of fact that Wolff was an uprated calculation it seems to me that this criticism is not well founded. As both sides agreed, the starting point required to be the comments made in Hamilton v Ferguson Transport. There is an authoritative pronouncement in that case that the judicial decisions in both Bellingham and Wolff "markedly undervalue...the relative sec 1(4) claims". Accordingly, in attempting to fulfil the objective set out by the five judge bench in Hamilton v Ferguson Transport, it can hardly be regarded as inappropriate to uprate the damages awarded in cases such as Wolff v Moulds. The difficult decision is the extent to which they should be uprated in the absence of any pattern, as yet, of comparable jury awards where guidance has been given. In Ryder v Highland Council 2013 SLT 847, Lord Tyre's dictum on the issue is obiter as he did not award damages having assoilzied the defenders. In those circumstances, it does seem to me, contrary to the suggestion made for the defenders in this case, that a perfectly adequate analysis of the facts that would have been relevant to the award he would have made is given by the Lord Ordinary at paragraph 63. He used the guidance afforded by Bellingham v Todd as the most appropriate to those facts, but uprated the award to take account of the observations of the court in Hamilton v Ferguson Transport. He did not express the uprating exercise as a percentage. It was an increase of £15,000 which happens to equate to a 60% uprate.

[32] Turing to the application of the law to the present case, the pursuers' claims for damages are made under section 4(3)(b) of the Damages (Scotland) Act 2011 which provides that an award can be made for:-

"(b) 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."

As indicated, there was some dispute about whether section 4(3)(b)(i) applied in this case. In Ross v Pryde 2004 Rep LR 129 Lord Uist (sitting then as temporary judge R F MacDonald QC) held that the equivalent paragraph in the 1976 Act (section 1(4)(b) did not apply in cases of sudden or instant death or where the deceased was rendered unconscious in an accident and did not recover consciousness before death. He expressed the view that if the deceased did not suffer before his death as a result of being rendered unconscious or dying immediately he failed to see how a relative could endure distress and anxiety contemplating a state of facts which never existed. By definition, someone rendered immediately unconscious by an accident and then died did not undergo any suffering within the meaning of the subsection. I would respectively agree with that view. However, as senior counsel for the defenders indicated, one might take a broader view that the family's grief and sorrow in this case were heightened owing to the circumstances in which Gavin died. The trauma of his relatives in being informed of this unexpected accident, his brother seeing him lying in the road and the vigil kept at the hospital are all part of the background about which evidence was led. As a matter of statutory interpretation, I do not consider that section 4(3)(b)(i) applies in this case. However, that conclusion has made little difference to the level of damages I will award, as I have taken the circumstances of the accident and its immediate impact on the family into account.

[33] In the absence of any relevant recent jury awards where the jury had the benefit of judicial guidance, I consider that the starting point must be a comparable judicial award. The closest one available for the loss of a young adult son is Shaher v British Air Space Flying College Ltd 2003 SC 540. The award there was £20,000 which would give a figure updated for inflation of about £28,000. The facts of Shaher bear some similarities with the present case. The accident was a sudden one, the young man having died in a flying accident while undergoing training. Mr Shaher was 19 years old at the date of death. There was no dispute that he and his parents had the closest bonds of affection and the Lord Ordinary accepted that for those particular pursuers the loss of the eldest son had a "special significance". The Lord Ordinary had relied on the jury award in Strang v Le Brusq 2001 Rep LR 52. There the adult son was aged 21 years at the date of death and the loss of society award for each parent had been £30,000. As indicated earlier, the reclaiming motion succeeded because of the reliance by the Lord Ordinary on a single noted jury award rather than any pattern. In any event, in light of the guidance given in Hamilton v Ferguson Transport the award in Shaher must now be regarded as markedly undervaluing similar claims. Further, given the passage of time, the starting point, in my view should be the current value of the award namely £28,000. The deceased in the present case was also undisputedly close both to his parents and to his older brother Euan. However, he had gained some independence in the years leading up to his death in that he had worked away from home, had formed a serious relationship and it seems likely that in the fullness of time he would have left the family home completely, married and started a family of his own. While the pursuers have countless happy memories of Gavin's childhood and young adulthood, they have lost their expected years of further companionship and closeness that on the evidence it is likely would have continued to exist. Self-evidently, any award made to the pursuers will do nothing to reduce their level of grief. Doing the best I can to make just compensation having regard to the objectives set out in Hamilton v Ferguson Transport, I have decided that in the particular circumstances of this case an appropriate award to each of the first and second pursuers is an amount representing, broadly, a 50% uplift on the updated award in Shaher Accordingly, I award each of those pursuers the sum of £42,000.

[34] So far as Euan is concerned, as senior counsel for the pursuer pointed out, there is at best a somewhat disparate group of authorities to consider. On any view the relevant award in Bellingham v Todd must now be regarded as significantly undervaluing a claim of this sort, almost certainly to a greater extent than Wolff v Moulds where it was uprated. Again there are no recent relevant jury awards. The jury award in Young v Advocate General for Scotland (unreported) was referred to by the Lord Ordinary in Bellingham v Todd but doesn't appear to have been relied on to any particular extent. While Bellingham v Todd may be one of the very few available comparators in determining the award for Euan, I do not consider that it represents the definitive starting point, given that even pre Hamilton v Ferguson Transport it was seen to be low and was uprated. In all the circumstances I consider £15,000 to be a more appropriate starting figure for a traditional judicial award. Shaher provides a very good comparison for the first two pursuers on the facts whereas Bellingham v Todd concerned a number of family members. There appears to have been some relatively brief evidence regarding the loss suffered by the deceased's brother, whose age is not recorded but the deceased was 40 at the time of death. There is no record of them having lived in such close proximity and spending quite so much time together as Euan and Gavin did. I am conscious also of the need to achieve comparative justice and fairness between the parties themselves, even having regard to the hierarchy of awards discussed. In all the circumstances, I consider that an appropriate award for Euan is the sum of £22,500. Effectively this is a 50% uplift on a starting point of £15,000.

Decision

[35] For the reasons explained above, I intend to make the following awards:-

1. An award in favour of the first pursuer qua executor dative for the sum £7,211 inclusive of interest.

2. An award in favour of the first pursuer as an individual for the sum of £42,000 on which interest on 50% of said sum at the rate of 4% per annum from 30 December 2011 requires to be added.

3. An award of £42,000 in favour of the second pursuer again with interest on 50% of that sum at the rate of 4% from 30 December 2011.

4. An award of £22,500 in favour of the third pursuer again with interest on 50% of that sum at the rate of 4% from 30 December 2011.

[37] I intend to have the case called By Order so that I can be addressed on the precise sums due once interest is added, together with a discussion about the expenses of the action, which I reserve meantime.