RTA Law

With news of yet another motorcyclist fatality on Scotland’s roads, after the tragic shock of such an event, thoughts inevitably turn to the family of that motorcyclist.

The son, the father, the brother that he was.

Families of fallen motorcyclists are often forgotten about, yet tragically they are the ones who are subject to life sentences of pain and grief for the loss they have suffered. No conviction of the driver who may be responsible for the motorcyclist’s death is enough when stacked against the  grief following the loss of a loved one.

Worse still, it may take the Police and Prosecuting Authorities years to bring some form of Criminal Justice for the family.

However, a detail often overlooked is redress utilising the Civil Law; a process which is quicker, more efficient and entirely separate from any Criminal Proceedings which may or may not materialise.

Bereaved families are often unaware of the civil remedies open to them.

In Scotland, there is a statutory scheme for awarding damages for fatal accident claims, the Damages (Scotland) Act 2011. Under the Act, family members can seek compensation for their grief and sorrow following the loss of a loved one. This type of claim is generally known as ‘loss of society’.

A family’s decision on whether to pursue such a course of action can, at times, be affected by a wider problem that exists within our society, i.e. how compensation payments are viewed. In the past, I have had conversations with families of fallen motorcyclists who were dissuaded from pursuing a loss of society claim because it was somehow viewed as shameful or undignified. It is important to therefore set out the purpose of compensation.

Compensation is not a prize, it is not “free money”. The clue is in the name, any award is compensatory in nature and even then, when measured against the loss of a loved one, any claim for compensation, no matter the figure written on the cheque, will ever be enough make up for that loss.

I often tell my clients that compensation is an attempt to redress the imbalance that exists when they have been injured because of someone else’s negligence. The principle is to put that injured individual back into the position they would have been “but for” the incident. And, whilst this aim is, in principle, an admirable one, it is also a fallacy. For a bereaved family, the only way to make them whole again is to turn back time, nothing else will ever suffice.

But, there is sun after the rain and love after the pain and as a bereaved family looks to the future, that future can seem frightening and unknown which is where a loss of society claim can come into its own.

Any award of damages will depend on a number of factors, however as a general rule of thumb the below of awards for grief and sorrow are frequently made by the Civil Courts.

  • Loss of spouse/partner  – £100,000 – £140,000
  • Loss of son or daughter as well as step sons or daughters  – £80,000 – £100,000
  • Loss of parent – £30,000 – £95,000
  • Loss of sibling – £20,000 – £45,000
  • Loss of grandparent – £8,000 – £25,000

The ranges are quite large and often Courts and compensators, such as insurance companies, will request information on the nature of the relationship that existed between the deceased and the person bringing the claim, the nature of the deceased’s death and the age of the deceased and the person bringing the claim.

As well as a claim for grief and sorrow, civil courts will also compensate those in the family who were financially dependent on a lost loved one. This is known as ‘loss of support’ and its aim is to prevent financial hardship and anxiety as the bereaved family contemplates the unknown future ahead.

This is where having expert legal representation really comes into its own. Having someone to guide you and your family through the unknown is so important when making a loss of society or loss of support.

To be there for you, to listen to you, to care about you. In the legal world, many Solicitors keep themselves at arm’s length from their clients, hiding behind a secretary or a keyboard. Inaccessible in an Ivory Tower of their own making.

At Motorcycle Law Scotland, we don’t do Ivory Towers, we don’t do arm’s length and we certainly don’t hide from our clients.

As fellow motorcyclists, we know what it is like to feel vulnerable on the road, we know what it is like to have a close call as a result of someone else’s lapse in judgement and we know how to help the families of fallen motorcyclists.

We are working hard, campaigning to stop the rising fatality rate of motorcyclists through our #TakeAnotherLook campaign and one day, perhaps, we will achieve the goal of no motorcycle related deaths on Scotland’s roads.

However, until that day comes, we will always be here for those families left behind to guide them through the unknown.

Thomas Mitchell 

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