[2014] CSOH 117A




In the cause






Pursuers:  Smith QC, Love;  Lefevre Litigation

Defenders:  Murphy QC;  Simpson & Marwick WS

31 July 2014

[1]        On 6 May 2011 Russell Stuart sustained fatal injuries as a result of a road accident collision.  He had driven to the Beach Boulevard, Aberdeen, to walk his dogs.  As he stood at the rear of his parked vehicle to let them out, a car driven by the first defender struck him.  Mr Stuart died in hospital three days later.  In this personal injury action, the members of his immediate family seek damages from the first defender and her insurance company.  Liability is admitted. 

[2]        The defenders have settled the claims of Mr Stuart’s widow and his three adult children.  The parties have not, however, been able to agree the claims made on behalf of Mr Stuart’s three grandchildren.  That is the issue for decision in this case.  At the time of his death, Mr Stuart had two granddaughters:  N aged five and E aged three.  His grandson H was not born until five months later.  There is a wide divergence in the parties’ respective valuations.  The pursuers submit that each grandchild should receive £25,000.  The defenders contend that N and E should each receive £4,000, while H should receive £2,000.  I heard a short proof, at which the only evidence came from Mr Stuart’s widow and his younger son (‘S’), who is the father of all three grandchildren.


The Facts
[3]        At the time of his death, Mr Stuart was 60 years old.  He had been married to his wife, Mrs Marilyn Stuart, for 40 years.  The couple operated a guesthouse at the family home in Aberdeen.  It had seven letting rooms and a maximum capacity of eleven guests.  Mr and Mrs Stuart jointly ran the business.  He cooked breakfast for the guests between about 7:00 and 8:45 am and assisted his wife in making the beds, cleaning the rooms, vacuuming the carpets and loading the washing machines.  In addition, he acted as the general handyman.  Because Mrs Stuart does not drive, Mr Stuart undertook all the driving duties.  He took the car to the supermarket to obtain food and other supplies.  On most days, Mrs Stuart said that they were finished these tasks by lunchtime.  She indicated, however, that the position varied from day to day. 

[4]        Mr and Mrs Stuart were devoted to their family.  When N was born in 2005, it was a matter of great excitement.  Mr Stuart insisted on going straight to the maternity ward to see her.  S lived with his wife (‘G’) and family about ten minutes’ drive from the guesthouse.  G returned to work part-time after N’s birth and full-time after E’s birth.  Mr and Mrs Stuart were closely involved in their granddaughters’ upbringing.  They were together six days out of seven.  On weekday mornings, Mr Stuart would usually pick them up from their house.  He would either bring them back to the guesthouse, or take them to nursery, playgroup, or school.  When they were at the guesthouse, N and E liked to be involved in the various tasks.

[5]        Mr and Mrs Stuart went on holiday with S and his family.  They visited Euro Disney several times, went on cruises together, and had weekend trips to Edinburgh and other places.  I was shown happy family photographs taken on holiday.  In October 2010 and at Easter 2011, Mr and Mrs Stuart took their granddaughters to Majorca on their own.  That demonstrates not only the bond of love and affection that existed between the generations, but also the respect and trust of S and G.  Mrs Stuart said that her husband was “a really great grandpa”, who had a close and loving relationship with his granddaughters.  She added that everything revolved around the grandchildren, involving much play and banter.  Mr Stuart was “over the moon” about the prospect of becoming a grandfather for the third time.

[6]        In a joint minute, the parties have agreed that Mr Stuart had a life expectancy of 15 years.  He did have various medical problems.  He was significantly overweight and had problems with his legs and feet.  On 18 February 2011, he reported to his GP that he was suffering from chest pain and feeling stressed, which had been “really bad in the run-up to Christmas.”  He returned to the surgery four weeks later and stated that he was still suffering from chest pain and shortness of breath on exertion.  He added that he was “tired and busy between business and childcare for his grandchildren.”  The GP referred him to the chest pain clinic. 

[7]        Mr Stuart’s active lifestyle must, however, also be taken into account.  He helped run the business, assisted with the childcare, and walked the dogs twice a day.  In addition, he and his wife were keen dancers.  If they finished their tasks by lunchtime, they might attend a tea dance.  They took dancing lessons at home.

[8]        In the weeks following her grandfather’s death N was very upset.  On several occasions, her school telephoned her parents to ask them to collect her and to take her home.  N has kept everything that her grandfather gave her, which she treasures.  E was noticeably quiet in the period immediately after his death, but S accepted that she was too young to take in its significance.  S and G regularly take their children to visit Mr Stuart’s grave.  There are photographs of him in their bedrooms and playroom.  There is no reason to suppose that H would have had anything other than a loving and close relationship with Mr Stuart.


The Legal Framework
[9]        The court can make an award to the relatives of a deceased person under three heads:  section 4(3)(b) of the Damages (Scotland) Act 2011.  First, it can make an award to reflect the distress and anxiety endured in contemplation of the deceased’s suffering before his or her death.  Secondly, it can make an award in respect of the grief and sorrow caused by the death.  Thirdly, the court can seek to  compensate the relative for the loss of such non-patrimonial benefit as he or she might have been expected to derive from the deceased’s society and guidance, if he had not died.  With regard to each head of claim, the court is directed to award such sum as it thinks just.  In the present case, there is no claim under the first head and only N has a possible claim under the second head.  Accordingly, the issue largely turns on the third head.

[10]      There is no definitive guidance on the application of the 2011 Act.  A number of authorities, however, provide assistance.  In Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486 a court of five judges addressed the disparity between judicial and jury awards in personal injury cases.  Delivering the lead opinion, Lord President Hamilton stated that:

“a.       the objective is to achieve consistency;

b.         judges should have regard to comparable jury awards, provided they are sufficiently well documented and free from special factors; 

c.         juries should be given some guidance on the range of awards;

d.         two recent judicial awards had “markedly undervalued” the loss of society claims;  and

e.         when making awards in respect of bereavement, regard must be had to awards for psychological and psychiatric loss.”

[11]      Subsequently, Mr Hajducki QC published an article about that case:  Informing the Jury:  A Critical Look at a Five Bench Decision 2012 SLT (News) 145.  In the course of the article, he provided details of a jury trial in which he appeared as counsel:  Kelly v Upper Clyde Shipbuilders 29 July 2012.  Mr Kelly had died aged 82 of mesothelioma some ten weeks after diagnosis.  But for contracting the disease, it was agreed that he had a life expectancy of four years.  His immediate family sought damages for his death.  At the jury trial, the presiding judge provided a possible range of awards for each class of relative.  She emphasised, however, that it was entirely a matter for them to determine what was just, fair and reasonable in all the circumstances.  With regard to the claims made on behalf of the deceased’s four grandchildren, the judge suggested that an appropriate range might lie between £5,000 and £20,000.  In its verdict, the jury made the following awards:  (a) £8,000 each to two grandchildren aged 14;  (b) £4,000 to a grandchild aged 7;  and (c) £1,500 to a grandchild aged 2.

[12]      Since Kelly, there has been one judicial decision on section 4(3)(b):  McGee v RJK Building Services Ltd 2013 SLT 428.  In that case, the deceased died two days after an accident in which he sustained multiple injuries.  He was aged 71 and had been married to his wife for 36 years.  They enjoyed a happy family life, which included taking their grandchildren on holiday.  After reviewing the authorities, Lord Drummond Young awarded £12,000 each to two granddaughters (aged 13 and 10) on the footing that their relationship with their grandfather had been “fairly straightforward”. 

[13]      He made significantly higher awards in respect of the other two claimants.  He awarded £20,000 to a nine year old granddaughter, because she had enjoyed an “exceptionally close relationship” with the deceased.  He awarded £25,000 to the fourth claimant aged 17, because the deceased had been the main adult male figure in his grandson’s life as he grew up.  The claimant had been “very badly affected” by the death and the award “should move into the level that is normally more appropriate for a child than a grandchild” (para 38).


[14]      Mr Smith invited me to follow McGee, as being the closest case on the facts and the one in which the reasoning underlying the valuation was patent.  He submitted that an award of £25,000 for each grandchild was justified in the present case, because Mr Stuart was exceptionally close to his granddaughters and could be regarded, at least for part of the time, as acting in loco parentis to them.  Mr Smith also argued that no distinction should be drawn between H and his sisters on the basis that H had been deprived of the opportunity to know his grandfather at all.  Mr Murphy submitted that the awards in McGee were incompatible with the jury’s verdict in Kelly, and also out of kilter with awards in other personal injury cases involving significant physical and mental disability. 


[15]      In deciding upon an award under section 4(3)(b), it is not possible to conduct a mechanistic exercise.  The court must evaluate the whole circumstances.  In this instance I take into account in particular the following factors:  (i) the very close bonds of love and affection that existed between Mr Stuart and his granddaughters;  (ii) his material involvement in their upbringing;  (iii) my conclusion that he would have enjoyed a similar relationship with H;  and (iv) the fact that he would otherwise have been expected to live for 15 years. 

[16]      I also accept three observations made by Mr Murphy.  First, that it is difficult to gauge the precise amount of time that Mr Stuart spent with N and E on weekday mornings, given his schedule of guesthouse duties.  Secondly, Mr Stuart’s health may have deteriorated, which would have affected the quality of his life.  Thirdly, very young children have a degree of resilience.  I shall include these factors in my overall assessment of the claims.  I do not, however, accept that Mr Stuart’s health would have so markedly declined as to severely diminish his interaction with his grandchildren. 

[17]      I hesitate to place too much reliance upon Kelly.  As yet, there is no pattern of jury awards and the deceased in that case was markedly older than Mr Stuart.  By contrast Lord Drummond Young has given cogent reasons for arriving at his awards in McGee and the interests of comparative justice indicate that I should not lightly depart from the approach he adopted.

[18]      I shall make an award of £18,000 in respect of N.  She knew her grandfather for the whole of her young life, was significantly affected by his death, and is more conscious of the deprivation of his company.  I shall make an award of £16,000 in respect of E, who was very young at the date of death and was not affected by it at the time to the same degree.  I shall award £14,000 to H.  I accept that he has been deprived of his grandfather’s society and guidance for 15 years. 

[19]      I shall allocate one third of the awards to N and E to the past.  As H is still very young, I see no basis for allocating any part of his award to the past.  I shall put this case out by order, in order that parties have the opportunity to agree the application of interest.  Meantime I shall reserve expenses.