Assessment of Damages for Loss of Society and Transmissible Solatium in Workplace Fatality Cases: McArthur v Timberbush Tours Ltd [2021] ScotCS CSOH_75

Introduction

The case of Robert McArthur and Others against Timberbush Tours Ltd and Another ([2021] ScotCS CSOH_75) was adjudicated in the Scottish Court of Session on July 22, 2021. This tragic case arose from a fatal workplace accident where Michael McArthur, while operating a cherry picker at a construction site on Balkerach Street, Doune, was violently struck by a tour coach operated by Timberbush Tours Limited. The collision caused Michael to fall from the elevated platform, leading to his immediate death due to severe injuries.

The plaintiffs in this case include Michael McArthur's father, mother, half-sister, and stepfather, who sought damages for Michael's untimely death. Timberbush Tours Limited, along with their insurer ERS Syndicate Management Limited, were the defendants. While Timberbush Tours admitted liability for the accident, they contested the extent of the damages claimed, arguing that the pursuers’ demands were excessive and partially attributable to Michael’s own negligence.

Summary of the Judgment

The court meticulously examined the evidence presented by both parties, including testimonies from family members and expert witnesses. The judgment focused on compensatory damages under the Damages (Scotland) Act 2011, specifically concerning distress, anxiety, grief, and loss of society. Additionally, the court addressed the issue of contributory negligence, ultimately finding that the primary responsibility lay with the defendant, Timberbush Tours Ltd.

The court awarded the following damages:

£5,000 for transmissible solatium related to Michael's suffering before death.
Funeral costs of £4,994.
Damages for loss of society: £100,000 each for the first and second pursuers (father and mother), £45,000 for the third pursuer (half-sister), and £70,000 for the fourth pursuer (stepfather).

The court dismissed claims of significant contributory negligence on Michael’s part, attributing the accident primarily to the driver’s failure to avoid an obvious hazard.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to frame the assessment of damages and contributory negligence:

Lyell v Sun Microsystems (2005) SCLR 786: Focused on duty of care in employment relationships.
Ruddy v Monte Marco & M & H Enterprises Ltd [2008] CSOH 40: Addressed the extent of negligence in workplace accidents.
Toner v George Morrison Builders (2011): Examined reckless disregard for safety in construction work.
Wallace v Stewart Homes (Scotland) Ltd & Another (2014) SCLR 1: Looked into contributory negligence in hazardous working conditions.
Cameron v M & K McLeod Limited [1995] GWD 34-1721: Considered contributory negligence even under contractual control.
Dyson v Heart of England NHS Foundation Trust [2017] EWHC 1910 (QB): Provided guidelines for transmissible solatium.
Hamilton v Ferguson Transport (Spean Bridge) Ltd, Scott v Parkes, Young v MacVean, and McCulloch and others v Forth Valley Health Board: Influenced the assessment of losses for close familial relationships.

These precedents collectively informed the court’s approach to determining the appropriate compensation levels and the assessment of contributory negligence.

Legal Reasoning

The court applied the Damages (Scotland) Act 2011, section 4(3)(b), which allows for compensation related to distress, anxiety, grief, and loss of society due to the death of a loved one. The court assessed each pursuer's relationship with Michael, considering factors such as closeness, dependency, and the nature of the loss.

Regarding transmissible solatium, the court evaluated the nature and duration of Michael's suffering before his death, allocating £5,000 based on the Judicial College Guidelines and comparable cases like Dyson v Heart of England NHS Foundation Trust.

On contributory negligence, the court examined whether Michael’s actions significantly contributed to his demise. Despite evidence suggesting Michael did not wear a harness, the court found no substantial link between his actions and the accident's occurrence, attributing primary fault to the driver of the coach and systemic safety failures by Timberbush Tours Ltd.

Impact

This judgment reinforces the judiciary's commitment to adequately compensating close family members for the profound loss resulting from workplace fatalities. By delineating the appropriate levels of damages for loss of society and transmissible solatium, the case sets a clear precedent for future cases involving similar circumstances. It underscores the importance of duty of care by employers and contractors, emphasizing that failures in safety protocols and negligence can lead to significant legal and financial repercussions.

Additionally, the dismissal of significant contributory negligence highlights the court’s stance on prioritizing employer responsibility in ensuring safe working conditions, thereby encouraging businesses to adhere strictly to safety regulations to mitigate liability.

Complex Concepts Simplified

Transmissible Solatium

Transmissible solatium refers to compensation awarded to the family members of a deceased person for the pain, suffering, and emotional distress caused by the death. It acknowledges that the emotional impact of the loss is transmitted to the relatives, warranting financial compensation.

Loss of Society

Under Damages (Scotland) Act 2011, section 4(3)(b), loss of society encompasses the grief, loss of companionship, and emotional support that family members experience following the death of a loved one. It accounts for the non-material benefits that relatives would have derived from the continued presence and guidance of the deceased.

Contributory Negligence

Contributory negligence occurs when the injured party is found to have partially contributed to the harm suffered. In this case, the court evaluated whether Michael’s failure to wear a harness significantly influenced the accident's outcome. The court concluded that his actions did not materially contribute to the accident, placing primary responsibility on the defendants.

Conclusion

The judgment in McArthur v Timberbush Tours Ltd [2021] ScotCS CSOH_75 exemplifies the Scottish courts' approach to assessing and awarding damages in fatal workplace accidents. By meticulously evaluating the depth of familial relationships and the nature of the loss, the court ensured that the compensation awarded was commensurate with the emotional and psychological impact on the family members.

Furthermore, the dismissal of significant contributory negligence in favor of holding the employer accountable serves as a potent reminder of the paramount importance of safety in the workplace. Employers and contractors are thereby incentivized to implement and adhere to stringent safety measures to protect their employees, knowing that lapses can result in substantial legal and financial consequences.

Overall, this case reinforces existing legal principles while providing clear guidance on the calculation of damages related to loss of society and transmissible solatium, thereby contributing to the jurisprudence in personal injury and wrongful death cases in Scotland.