Updated: Dec 1, 2021
The relatives of a young man who was killed when he was knocked out of a cherry picker by a tour bus have been awarded £315,000 in damages for loss of society after their success in an action against the operators of the coach and their insurers in the Outer House of the Court of Session.
Robert McArthur, the father of the deceased, raised the action along with the deceased’s mother, half-sister, and stepfather. The defenders, Timberbush Tours Ltd and ERS Syndicate Management Ltd, contended that the sums sued for were excessive and that there was contributory negligence on the part of the deceased.
The case was heard by Lord Armstrong. The pursuers were represented by Galbraith QC and Singer, solicitor advocate, and the defenders by Miller, advocate.
Thrown from the platform
The deceased, Michael McArthur, had been working in the platform of a cherry picker on Balkerach Street, Doune, on 27 September 2018. A tour bus operated by the first defender struck the arm of the cherry picker, causing him to be thrown from the platform and sustain fatal injuries from the fall. He was pronounced dead within an hour of the accident occurring. At the time of his death, he was 26 years old.
The first defender admitted liability in respect of the accident and agreed that the injuries sustained from it led to the death of the deceased. It was also agreed by the parties that the deceased had not been secured to the cherry picker by a lanyard or harness, that he had not been wearing any protective equipment, and that there was no system of traffic management placed around the cherry picker.
In evidence, the pursuers spoke to the quality of the relationship they had with the deceased, who had been the first and second pursuer’s only son. In terms of his employment, he had been working for his boss, Kevin Bowie, at the time of the accident in a number of jobs since he was 16, with whom he had sometimes argued concerning safety at work. Mr Bowie was the subject of prosecution in relation to the accident, with no trial diet having been fixed at the time of the damages action.
It was submitted for the pursuers that in all the circumstances of the pursuer’s suffering, an
award of £5,000 in damages would be appropriate in respect of transmissible solatium. Further, the manner of the deceased’s death had contributed to the extent of the grief suffered by his family, with whom he had a very close relationship, with his younger sister having required counselling after the accident. Given these close bonds and the violent nature of his death, the appropriate awards were considered to be £120,000 for the first and second pursuers, £50,000 for the third pursuer, and £70,000 for the fourth.
In response, the defenders submitted that the deceased had been spending less time with family as he had grown older and had become less dependent on them in adulthood. Further, he had materially contributed to the circumstances of his death, as he had displayed a reckless disregard for his own safety in going up without a harness and increased the risk of his situation on his own initiative.
In his decision, Lord Armstrong said of solatium: “Having regard to the catastrophic nature of his injuries, it is reasonable to infer that the period immediately prior to death would have been painful, frightening and traumatic. Having regard to the Judicial College Guidelines for the Assessment of General Damages in Personal Injuries Cases, I am persuaded that a fair and reasonable award for transmissible solatium, in these circumstances, should be fixed at the sum of £5,000.”
Turning to the deceased’s relationship with his family, he said: “On the evidence presented, the deceased would appear to have been a remarkable young man who brought people together and was much appreciated by his local community. I accept that in the context of strong family ties, his relationships with the pursuers were particularly close, and that, in consequence, his death has had a profound effect, and has especially affected them.”
On whether there was contributory negligence, Lord Armstrong noted: “It is accepted that there was no system of traffic management, in the form of traffic cones, around the cherry picker at the referable time. While it is also accepted that the deceased was not wearing a harness, there was no evidence to the effect that he had been provided with one for the work in hand, or what difference the wearing of a harness would have made to the consequences of the accident. On the basis that Kevin Bowie was in control of the work to be carried out, I accept that there appears to have been a failure on his part in assessing how the work
involved was to be carried out safely.”
He continued: “The evidence which I accept indicates that the deceased had an awareness of the need to work safely, and had previously refused to work in a manner required of him which he considered to be unsafe. I do not accept, therefore, that it was part of the deceased’s character that he would work in a manner which indicated a reckless disregard for risk in his working environment.”
Lord Armstrong concluded: “In the whole circumstances, having regard to the particular facts of this case, and, in particular, given the nature of the working relationship between the deceased and Kevin Bowie, I find that, in relation to the accident which caused his death, the deceased was not contributorily negligent.”
For these reasons, Lord Armstrong awarded damages in respect of transmissible solatium of £5,000, as well as damages in respect of loss of society to each pursuer. The first and second pursuers were each awarded £100,000, the third pursuer £45,000, and the fourth pursuer £70,000.
Scottish Legal News Ltd July 2021