Description
Jury Awards/Judicial Awards/Negligence/Contributory Negligence/Damages/Section 1(4), Damages (Scotland) Act 1976
The pursuers sought damages for the death of a family member caused by a road accident. They claimed that the defender's actions leading to the accident amounted to negligence. However, it was accepted that there was a degree of contributory negligence on the part of the deceased. There were three issues for determination: (a) was the defender negligent? (b) if so, how should liability be apportioned between himself and the deceased? and (c) what is the correct valuation of each family member's claim for damages?
Held; Firstly, the defender was in part to blame for the accident. There was no emergency on the road requiring the emergency stop the defender performed. By breaking hard, he was in breach of his duty of care to his fellow road users. He did not adhere to the provisions of the Highway Code to brake early and lightly. In relation to causation, the accident would not have happened but for the defender's negligence. Secondly, the collision was principally caused by the negligence of the deceased whose conduct was reckless or verging on reckless. He did not allow himself sufficient distance to come to a stop. The deceased was 80% liable for the accident and the defender was 20% liable. Thirdly, in an assessment of damages and the variation between judicial and jury awards five propositions arise from relevant case law; i) the assessment of damages is essentially a jury question; ii) that is because such awards should reflect the expectations of society; iii) the court is therefore encouraged to look for guidance to jury decisions; iv) reliance can be placed upon a consistent pattern of jury awards; v) caution should, however, be exercised before reliance is placed on only one jury award, or equiperating awards in respect of different classes of relative (Girvan v Inverness Farmers Dairy 1998 SC(HL) 1, 24; Shaher v British Aerospace Flying College Ltd 2003 SC 540, McLean v William Denny & Bros Ltd 2004 SC 656 and Murray's Ex v Greenock Dockyard Co Ltd 2004 SLT 1104).
Lord Woolman further observed that caution should be exercised when considering jury awards where the jury may be especially sympathetic to deaths of young service men and women. Secondly, that any judicial awards now made should be materially increased above the rate of inflation because jury awards provide a surer guide to the correct level of damages. Thirdly, awards to different classes of relative should not be viewed in isolation. There is 'an established hierarchy of awards' and a surviving spouse will usually receive a higher sum than surviving parents or children of the deceased (Weir v Robertson Group (Construction) Ltd 2006 Rep LR 114 at [33]).
