ROBERT McARTHUR AND OTHERS AGAINST TIMBERBUSH TOURS LTD AND ANOTHER

Factual and Procedural Background

On 27 September 2018, the deceased was working in the basket platform of a cherry picker elevated at the exterior of a building on Balkerach Street, Doune. A tour coach traveling on the same side of the road struck the arm of the cherry picker, causing the deceased to be thrown from the basket platform and fall to the road, sustaining fatal injuries. The pursuers, comprising the deceased's father (both individually and as executor), mother, half-sister, and step-father, brought an action seeking damages from the defenders: the first defender being the owners and operators of the coach, and the second defender their insurers. The first defenders admitted liability but contended the sums claimed were excessive and that the deceased's own fault was a cause or contributor to the accident.

The evidence at proof was limited and included testimony from the pursuers and two expert witnesses. No defender witnesses were called. The parties agreed on key facts including the cause of death, the deceased's lack of personal protective equipment or harness at the time, and that the deceased held a certificate for safe use of mobile working platforms. Prosecutions related to the accident under health and safety legislation were ongoing against a third party, Kevin Bowie, who was identified as the deceased's de facto employer and in control of his work.

Legal Issues Presented

1. Whether the sums claimed by the pursuers as damages were excessive.
2. Whether the deceased was contributorily negligent in causing or contributing to his own death.
3. The appropriate quantum of damages payable to each pursuer under the Damages (Scotland) Act 2011, section 4(3)(b), including transmissible solatium.
4. The nature of the working relationship between the deceased and Kevin Bowie, and the implications for duty of care and contributory negligence.

Arguments of the Parties

Pursuers' Arguments

• The first defenders admitted liability but argued the sums claimed were excessive and that the deceased was solely or materially at fault.
• The deceased had been under the control of Kevin Bowie, who was responsible for safe working conditions and equipment provision.
• The deceased was not reckless and had previously refused unsafe work; he held relevant safety training, though the extent of its applicability was unclear.
• There was no evidence a harness had been provided or that it would have prevented the accident.
• The accident was caused by the first defenders' driver failing to avoid an obvious hazard.
• The pursuers sought damages for funeral costs, transmissible solatium, and loss of society based on close family bonds and the violent nature of the deceased's death.
• They denied contributory negligence or, if found, argued it should be minimal.

Defenders' Arguments

• Accepted funeral costs and that the deceased suffered catastrophic injuries.
• Argued the deceased's suffering prior to death lasted about 50 minutes, warranting a lower transmissible solatium award than claimed.
• Contended the deceased's relationships with the pursuers were not extraordinarily close, as he had become more independent and spent increasing time with friends.
• Argued the deceased was contributorily negligent, citing lack of traffic management, absence of a harness, and unsafe conduct in operating the cherry picker.
• Suggested a contributory negligence finding of 40% would be appropriate based on precedent.
• Contended the deceased was not wholly controlled by Kevin Bowie and had some autonomy, including refusing unsafe work.

Table of Precedents Cited

Court's Reasoning and Analysis

The court found all witnesses credible and reliable. It accepted that the deceased sustained catastrophic injuries and was conscious and in significant pain for approximately 50 minutes before death, justifying a transmissible solatium award of £5,000 based on guidelines and precedent.

Regarding damages under the Damages (Scotland) Act 2011, section 4(3)(b), the court recognized the deceased as a remarkable young man with strong family ties and significant community appreciation. It acknowledged the deceased had become more independent as a young adult but maintained close contact with family, rejecting the defenders' argument that he was estranged.

The court found no distinction between the first and second pursuers, both having equally strong bonds with the deceased. It assessed awards of £100,000 each to the first and second pursuers, £45,000 to the third pursuer (half-sister), and £70,000 to the fourth pursuer (step-father), attributing half of each award to past loss.

On contributory negligence, the court accepted that Kevin Bowie was in de facto control of the deceased’s work and owed him a duty of care analogous to that of an employer. It found the deceased was aware of safety concerns, had previously refused unsafe work, and was not reckless. The absence of a harness or traffic management was attributed to failures by Kevin Bowie, not the deceased. The court rejected a finding of contributory negligence against the deceased.

Holding and Implications

The court AWARDED DAMAGES as follows:

• £5,000 transmissible solatium with interest to the first pursuer as executor.
• £4,994 for funeral costs with interest to the first pursuer as executor.
• £100,000 each for loss of society to the first and second pursuers, with interest on half the amount.
• £45,000 for loss of society to the third pursuer, with interest on half the amount.
• £70,000 for loss of society to the fourth pursuer, with interest on half the amount.

The court found no contributory negligence on the part of the deceased. It reserved the question of expenses and allowed parties time to consider interest calculations. No new legal precedent was established; the decision applied existing principles on damages, duty of care, and contributory negligence in workplace fatality claims.