Damages paid to builder after son’s death were ‘excessive’, says judge

Damages of £90,000 paid to a Shetland builder whose son was killed in a workplace accident were excessive and the case should be heard again with guidance given to jurors on compensation, appeal judges ruled today.

Dennis Thomson from Brae sued his own firm Dennis Thomson Builders Ltd following the death of his son James, 26, after a canister of expanding foam exploded on a building site in Levenwick in March 2007.

Scotland’s retiring senior judge, Lord President Lord Hamilton, said the current absence of guidance from the presiding judge at civil jury trials to the 12 jurors over the level of damages was “an unsatisfactory feature of our practice” and now needed to be changed.

Lord Hamilton and a specially convened bench of four other judges at the Court of Session in Edinburgh held that loss of society awards made to Mr Thomson and to Kirsty Hamilton after her mother was killed on a Highland road were too high.

But the senior judge said that he also considered that recent decisions over awards to relatives in other cases made by judges sitting on their own “markedly” undervalued the damages.

Kirsty Hamilton was 17 when her mother Caroline, 50, from Ballachulish in Argyll, was killed after a lorry toppled over and crushed her car on the A82 Fort William to Ballachulish road in December 2007.

Miss Hamilton sued Ferguson Transport (Spean Bridge) Ltd at the Court of Session and was awarded a total of £142,060 with the jury giving her £120,000 for loss of society last year.

Both the firms sought to have new jury trials in the cases and the five-judge bench was convened to hear them as potentially they gave rise to important issues of principle and practice.

They heard that in cases involving deaths there was a perception that awards made by judges were “falling well below” those given by civil juries.

Lord Hamilton said: “If greater regard than hitherto is not had by judges to jury awards, then the disparity between judicial and jury awards is likely to remain – a state of affairs which ‘lacks the consistency which is one of the hallmarks of a mature system’.”

He said: “The objective must now be to seek to narrow that disparity and to eliminate, in so far as practical, that lack of consistency.”

The senior judge said that could be done by judges having significantly more regard to jury awards, by juries getting fuller guidance over the level of damages which might reasonably be awarded consistent with other cases and by an appeal court continuing to intervene where necessary.

“Judicial and jury awards give different but complementary guidance for what is a just award of damages,” he said.

“In an age when life may be thought to be more precious than it may have been thought to be by earlier generations, and where consequentially the loss of the life of a close relative may seem a greater loss than it might have seemed earlier, the input of jury awards, reflective of the views of the community, may, in death cases be particularly important.

“The objective should be to eliminate, or at least reduce, the disparity between judicial and jury awards while at the same time securing awards in comparable cases bear a coherent relationship with each other.”

Lord Hamilton said it was ultimately “a matter of impression” whether the awards made to Mr Thomson and Miss Hamilton were beyond what might have been reasonably awarded.

He said he had come to the view that the £90,000 award to Mr Thomson was excessive and a new trial should be allowed in his case.

Mr Thomson told the court that he reckoned the longest he had gone without seeing his son during his life would be two weeks.

Of Miss Hamilton, the senior judge said: “Although Miss Hamilton by the time of her mother’s death had left school and was studying away from home, she was very close to her mother.”

They spent a lot of time together and she confided in her mother and remained deeply affected by her loss at the time the case was heard.

She believed that, if her mother had survived, their relationship would have become even better,” said Lord Hamilton.

The senior judge said despite such features he was satisfied that the £120,000 award was excessive.

Miss Hamilton, who studied speech and drama, told jurors: “We were friends as well as mother and daughter.”

Lord Hamilton said civil juries would in future by offered guidance in assessing damages with the presiding judge suggesting a spectrum in which the award might lie.