James Currie And Margaret Currie Against Esure Services Limited
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lady Dorrian,Lady Smith |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] CSIH 112 |
| Date | 04 December 2014 |
| Docket Number | PD2432/12 |
| Published date | 19 December 2014 |
| Court | Court of Session |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 112
PD2432/12
Lord Justice Clerk
Lady Smith
Lady Dorrian
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the reclaiming motion
by
JAMES CURRIE and MARGARET CURRIE
Pursuers and Reclaimers;
against
ESURE SERVICES LIMITED
Defenders and Respondents:
Act: Dunlop QC, Hood; Allan McDougall
Alt: Murphy QC; Simpson & Marwick
4 December 2014
Introduction
[1] The reclaimers are the father and mother of Gavin Currie who was tragically killed, aged only 25, as a result of a road traffic accident on 28 December 2011. The deceased had been on a zebra crossing on Main Street, Neilston, when he was struck by a car. The respondents, as insurers of the driver of the car, admitted liability. Awards of £42,000 (exclusive of interest) were made in favour of the reclaimers, for grief, sorrow and loss of society and guidance (Damages (Scotland) Act 2011, s 4(3)(b)(ii) and (iii)) suffered by them as a result of the death. The subject of this reclaiming motion is the level of those awards; it being accepted that the awards to each parent could not be differentiated.
The Lord Ordinary’s Decision
[2] The nature of the submissions at the proof are important in giving context to the Lord Ordinary’s decision. As recorded by the Lord Ordinary, in contending that an award of £65,000 for each reclaimer was reasonable, the reclaimers had submitted that the starting point was the dictum in Hamilton v Ferguson Transport (Spean Bridge) 2012 SC 486 (LP (Hamilton) at para [63]) that greater regard ought to be paid by judges to jury awards in order to narrow the disparity, and to eliminate the inconsistency, between judicial and jury awards. The court in Hamilton advised (at paras [76] and [77]) that there ought to be changes in jury trial practice whereby the judge would henceforth provide the jury with a spectrum within which their award might lie; albeit that this would not be binding upon them. The Lord President had said (at para [70]) that:
“… other jury awards in comparable cases, provided they are sufficiently well documented and free from special consideration and (in time) disadvantages … should, on being taken into account, be accorded significant weight. Other jury awards should be approached with appropriate caution.”
As noted by the Lord Ordinary, the submission continued:
“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, [the pursuers] … would not seek damages at the level awarded in the ‘Nimrod’ cases, discussed in Hamilton …, which had been in the £100,000 bracket. … [I]t was accepted that the Thomson award which was that of the second pursuer in … Hamilton …, at £90,000, had been too high.”
Reference was made to two Outer House decisions post‒dating Hamilton (McGee v RJK Building Services 2013 SLT 428 and Ryder v Highland Council 2013 SLT 847) in which the Lords Ordinary had increased past judicial awards following the statement in Hamilton (at para [72]) that recent judicial decisions (Bellingham v Todd 2011 SLT 1124 and Wolff v John Moulds (Kilmarnock) 2012 SLT 231) markedly undervalued claims for the death of a relative.
[3] The reclaimers’ submission then turned to “the most similar judicial award” in Shaher v British Aerospace Flying College 2003 SC 540, in which an Extra Division had overturned a judicial award of £30,000, which had had regard to a jury award of that amount in Strang v Le Brusq 2001 Rep LR 52, and substituted one of £20,000. The Division had not been satisfied that there was a pattern in recent jury awards which would indicate that the sum awarded in Strang ought to be regarded as reflecting societal expectations (Lord Marnoch at paras [6] and [7]).
[4] The reclaimers’ submission, as understood by the Lord Ordinary, proceeded as follows:
“[15] … 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 (sic) as it did the natural order of things. … Accordingly … the present value award of Shaher should initially be doubled (to £56,000) to reflect the importance of this particular type of loss. … [A]n 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. …
[16] … Considerable emphasis was placed on the dicta … in Hamilton … (at page 520) … 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 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.”
[5] The respondents’ reply had contained the following:
“[22] … 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 (sic) of ‘Nimrod’ cases were very special and turned on their own facts. Secondly, post‒Hamilton … there were no jury awards relating to the death of adult children. … [In Kelly v UCS] the jury had been given a range from £40,000 to £80,000 by the presiding judge. … [T]he only recent guidance … could be found in … Shaher … all as now informed by the dicta in Hamilton … The process of uprating in Wolff …, McGee … and Ryder … might also assist …”.
[6] In dealing with these submissions, the Lord Ordinary observed that it would, as was said in Hamilton (at para [63]), take time before the new process envisaged in that case had matured. As yet the only recent jury award (Kelly (supra)) was:
“[30] … 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 … 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 …
… [T]he 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. … [T]he £65,000 … could be regarded as effectively the updated midpoint between Shaher and the Thomson jury award … 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. … [A]ll 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 (sic). The award itself is of no assistance to me in determining the appropriate awards to the pursuers.”
[7] The Lord Ordinary proceeded to review McGee and Ryder before returning to what she said had been agreed as “the starting point” in Hamilton to the effect that pre‒existing judicial decisions had markedly undervalued death claims. However:
“[31] 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 …
[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 available for the loss of a young adult son is Shaher [(supra)] …”.
The Lord Ordinary uprated the award in Shaher to £28,000 to take into account inflation and applied a 50% uplift to arrive at the figure of £42,000 (cf 60% in McGee (supra) and Ryder (supra)).
Grounds of appeal and submissions
Reclaimers
[8] The grounds of appeal (RCS 38.18) are in clear and readily understood terms. The Lord Ordinary had erred:
“a) that the Lord President in … Hamilton … had made clear that previous jury awards must be treated with ‘great caution’, rather than as was said by Lord Hamilton, with ‘appropriate caution’; and
b) in her interpretation of paragraph 73 … of the Opinion of the Lord President in … Hamilton, by concluding that the First Division … had regarded the award made to Mr Thomson as excessive according to the ‘100% working rule’ …”.
It can be seen immediately that what is being focused upon are errors by the Lord Ordinary, which might, if made out, open up the awards for review. There is no discrete point that the awards were inadequate.
[9] The...
To continue reading
Request your trial
-
Young v MacVean
...the benefit of the opinion of the court delivered by Lord Carloway in the unsuccessful reclaiming motion at the instance of the pursuer: 2015 SC 351. As plainly and clearly excessive, the Lord Ordinary’s award was accordingly amenable to review by this court: Purdie v William Allan & Sons L......