ROBERT McARTHUR AND OTHERS AGAINST TIMBERBUSH TOURS LTD AND ANOTHER [2021] ScotCS CSOH_75 (22 July 2021)

ROBERT McARTHUR AND OTHERS AGAINST TIMBERBUSH TOURS LTD AND ANOTHER [2021] ScotCS CSOH_75 (22 July 2021)

Exceptional closeness of family bonds, violent nature of death, and catastrophic injuries justify high awards for loss of society. Deceased was not contributorily negligent as he was under employer's control, no evidence of reckless disregard, and no proof of harness provision or its effect.

Citation
[2021] ScotCS CSOH_75
Parties
First Pursuer (individual and Executor Dative): Robert McArthur; Second Pursuer: Second pursuer (mother of deceased); Third Pursuer: Third pursuer (half-sister of deceased); Fourth Pursuer: Fourth pursuer (step-father of deceased); First Defender: Timberbush Tours Limited; Second Defender: ERS Syndicate Management Limited
Jurisdiction
Scotland
Judgment Date
22 July 2021
Procedural Posture
Personal Injury (fatal Accident) / Final Judgment After Proof
Outcome
Judgment for pursuers
Legal Topics
Damages for Loss of Society, Transmissible Solatium, Contributory Negligence, Funeral Expenses
Personal Injury Delict Employment Law Damages for Loss of Society Transmissible Solatium Contributory Negligence Funeral Expenses

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Parties

Robert McArthur

First Pursuer (individual and Executor Dative)

Second pursuer (mother of deceased)

Second Pursuer

Third pursuer (half-sister of deceased)

Third Pursuer

Fourth pursuer (step-father of deceased)

Fourth Pursuer

Timberbush Tours Limited

First Defender

ERS Syndicate Management Limited

Second Defender

Procedural Posture

Personal Injury (fatal Accident) / Final Judgment After Proof

Legal Issues

  1. 1 quantum of damages for loss of society under Damages (Scotland) Act 2011 s4(3)(b)
  2. 2 assessment of transmissible solatium
  3. 3 contributory negligence of deceased

Ratio Decidendi

Exceptional closeness of family bonds, violent nature of death, and catastrophic injuries justify high awards for loss of society. Deceased was not contributorily negligent as he was under employer's control, no evidence of reckless disregard, and no proof of harness provision or its effect.

Court Disposition

Judgment for pursuers

Orders

  • Transmissible solatium £5,000 to first pursuer as executor, with interest at 8% per annum from 27 September 2018 until decree.
  • Funeral costs £4,994 to first pursuer as executor, with interest at 8% per annum from 6 November 2018 until decree.