Members of our litigation team have previously looked at the level of damages being awarded by the Court in fatal cases and in particular the level of damages awarded to family members for loss of society (i.e. the loss of a close bond, guidance and companionship). This issue is very much at the forefront of everyone's mind again given two recent cases in the Court of Session. Both of these cases seem to have paved the way for substantially increased levels of awards for relatives in these circumstances and have given specific thought and analysis to awards to grandchildren following the death of a grandparent.
The first case is Gallagher v SC Cheadle Hume Ltd & Ors  CSOH 103 which was heard by Lord Uist. This case concerned the death of Mr. Gallagher from mesothelioma acquired from exposure to asbestos in the workplace. Lord Uist accepted that the family was a very close one and various members of the family gave evidence to that effect. Substantially increased, judge-determined awards followed with Mr. Gallagher's widow receiving £80,000, the adult children receiving £35,000 each and the grandchildren receiving awards ranging from £25,000 to £2,500 each. What is interesting about this case is the distinctions that Lord Uist made between the grandchildren on the basis of their individual relationships with the deceased. There was not an award across the board for that "category" of relationship but, rather, considerable weight was placed on each of the individual pursuers' evidence. As is usual in family situations, the various grandchildren had very different relationships with their grandfather. Two were particularly close and they were awarded £25,000 each. The younger grandchildren, who had not had the opportunity to build up as close a relationship to the deceased, were given lesser, but not insignificant awards.
This case was closely followed by Stuart v Reid  CSOH 117A, a case decided by Lord Woolman. Again, this case focused on loss of society and, again, is of particular interest due to the level of awards made to grandchildren. In this case, Mr. Stuart had three very young grandchildren but who he looked after on a regular basis. Even though they were young (5, 3 and the youngest was, in fact, born 5 monthsafterhis grandfather died), Lord Woolman ruled that they were entitled to damages of £18,000, £16,000 and £14,000 respectively. The family was able to show in evidence the close bonds within the family and also the effect that the death of Mr. Stuart had had on the children's lives.
Clearly, there are a lot of factors which have to be taken into account when pursuing cases like these and, indeed, in terms of the judge making an award of damages at the end of the day. Firstly, some medical evidence will usually be required to work out how much longer the deceased was likely to have lived for (but for the negligence) in order to work out how many years of a relationship have been lost which require to be compensated for. Secondly, evidence needs to be led about the closeness of the relationship between the deceased and his or her surviving relative. Lord Woolman emphasised the close bonds of love and affection between Mr. Stuart and his grandchildren and his material involvement in their upbringing as being significant factors in this case. Lord Uist, too, emphasised the need for this information to be divulged to the other side in the case in advance of the court hearing to allow them to value the claim properly.
It is clear that there is a shift in feeling from the bench about these types of claims and this reflects that family relationships and the make-up of families are ever-evolving. Grandparents are becoming more involved than ever before in childcare while parents work and, therefore, close grandparental bonds are not uncommon. It is a shift that is long overdue in these situations and, hopefully, one which is here to stay.