Those keen blog-followers and, indeed, those who attended our recent correspondents’ conference, may well be aware that the amount of compensation to be awarded to those suffering loss of society after a fatal accident is something of a hot potato in the legal world at the moment.
Each new decision is awaited with interest. The latest judgement to be issued in this area is that of the Inner House of the Court of Session in Young v McVean  CSIH 70. This was an appeal taken by the insurance company over an award granted by Lady Rae, sitting without a jury, to the mother of a 26 year old man killed in a road traffic accident. The appeal was brought on two broad bases. The first was that the compensation award of £80,000 was excessive and the second was in relation to whether Lady Rae was right to conclude that the mother was herself a secondary victim.
Whether or not someone is a secondary victim is the topic for an article in itself but, suffice to say, the Court did reverse the decision that Mrs Young was a secondary victim and, therefore, the award made for the psychiatric injury that she suffered was reversed. However, more importantly, the Inner House concluded that the £80,000 awarded to Mrs Young in respect of her loss of society claim (for the loss of her son) was not excessive and that that award should stand.
The Opinion of the Court is an interesting read. The judges appear to have really struggled to reconcile the £80,000 award in this case with a similar case called Currie v Esure where a mother of a 25 year old was awarded only £42,000. In upholding the first instance decision in Young, the Inner House were careful to remind themselves that a judge hearing a case at first instance is the principal decision-maker and that he or she is entitled to exercise their discretion at the conclusion of a case based on the evidence that they have heard. The Bench also appear to have taken into account what is described as “special significance” in this case. This was that Mrs Young had suffered two sudden unexpected deaths in her family already and that had led to a more severe grief reaction. The closeness of relationship between mother and son was also of critical importance, although the Inner House appears to shy away from a forensic examination of that as seems to have been envisaged in some other recent cases.
Lord Brodie, in his concluding remarks, refers to the “continuing upwards pull” of jury awards. This seems to reflect the view that these sorts of awards are still in a state of flux. Judge-made awards are likely to continue increasing to be in line with those handed down by a jury.
So, where does this leave us? I would suggest that we are still in a state of uncertainty. However, this case is yet further confirmation that the facts of each case and how these are presented in court is of the utmost importance. Evidence of the closeness of the relationship between the deceased and the bereaved and evidence of the emotional and psychiatric injury suffered by the surviving relative are key to maximising the value of a claim.