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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray & Ors v. Greenock Dockyard [2003] ScotCS 164 (04 June 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/164.html Cite as: [2003] ScotCS 164, 2004 SCLR 647 |
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OUTER HOUSE, COURT OF SESSION |
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A837/00
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OPINION OF J GORDON REID, Q.C., SITTING AS A TEMPORARY JUDGE in the cause JOSEPHINE MURRAY and OTHERS Pursuers; against GREENOCK DOCKYARD COMPANY LIMITED Defenders:
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Pursuers: Maguire (Solicitor-Advocate), Marshall (Solicitor-Advocate), Thompsons
Defenders: Anderson Q.C., Biggart Baillie
4 June 2003
Introduction
[1] The late Joseph Murray died on 31 March 2001 as a result of mesothelioma caused by exposure to asbestos while in the employment of the defenders. His widow, the first pursuer, sues as executrix for the loss, injury and damage suffered by the deceased prior to his death, and also as an individual for her own loss arising from his death. The second pursuer, Kirsten Allardice, the adult child of the deceased and the first pursuer, also sues for loss arising from the deceased's death. [2] A proof before answer was held on 29 April, and 1, 2 and 3 May 2003. When the case called for proof, I was informed that liability was admitted and that claims by the third and fourth pursuers (the deceased's son-in-law, Andrew Allardice, and the deceased's mother and latterly her executrix) had been settled by Tender and Acceptance. I was also informed that part of the first pursuer's loss of support claim had been agreed, namely from the date of the deceased's death to 30 April 2003 at £3,237 (subsequently revised by agreement to £3,737) and that a multiplicand had been agreed, namely £1688.60 per annum from 1 May 2003. A Joint Minute was lodged on the third day of the proof. The main issue in the evidence was the medical opinion as to what the deceased's life expectancy would have been had he not died of mesothelioma. Mr Maguire led the evidence of the first and second pursuers and Doctor Peter Semple DL, MD, FRCP. Mr Anderson led the evidence of Dr Francis Moran, BSc, MB.Ch.B. (Glasg.), M.S. (Northwestern), F.R.C.P (Edin. & Glasg). By agreement between the parties, following discussion in court, Dr Moran sat in court while Dr Semple gave evidence. [3] Both parties moved short amendments to their Pleadings at the Bar. I allowed these. The pursuers' was relatively formal. The defenders' was more significant as it changed the defenders' position on life expectancy at the date of the deceased's death from 11-12 years to no more than five years. In allowing this amendment, I made it clear to Mr Maguire that if he required an adjournment to consider these new figures with his expert, a motion therefor would be treated sympathetically. In the event, no adjournment was sought.Facts
(a) The Murray Family
[4] Mr and Mrs Murray were married in 1959. They were both twenty one years old. They met when they were about seventeen. When Mr Murray died, they had been married some 41 years. There is one child of the marriage, namely Kirsten, who was born in 1968. The marriage had its ups and downs over the years, as any marriage of that length would be expected to have. Mrs Murray mentioned that during the nineteen eighties, her marriage was for a time difficult. Mr Murray was drinking heavily. She left the matrimonial home with her daughter, to give him, as she put it "a wee fright". She returned to him after about two weeks. He undertook to cut back on his drinking, and normal married life was resumed. During that decade, Mrs Murray suffered a number of family bereavements which caused her to suffer from depression for a time for which she received treatment. [5] Mrs Murray worked within the laundry facility at a local hospital. She retired when she was fifty. Mr Murray retired from work in about 1992 or 1991. Mrs Murray looked after the family finances and carried out the domestic chores. Mr Murray helped out occasionally with cooking and household chores. [6] I am quite satisfied on the evidence of Mrs Murray and her daughter that the marriage was generally a happy one and that there was a close loving relationship between Mr and Mrs Murray, and between Kirsten and her parents. In particular, over the last ten or so years before his death, Mrs Murray looked after her husband. She was devoted to him and during the last year of his life organised her day each day so that she could be with him, if not all the time, for most of the time. She and her daughter gave him emotional support. Prompted by her daughter, she purchased a mobile phone, so that she and her husband could keep in touch when she was out of the house shopping. She drove him to hospital on many occasions; latterly she had to organise a wheel chair for him for the journey from the car to the hospital clinic. She cooked and cleaned for him, fetched and carried and latterly helped him in and out of the toilet. At night, he would sweat profusely and she sponged him down and comforted him. [7] Mrs Allardice left the family home when she was about twenty. She lived nearby and regularly visited her parents usually twice a week and sometimes on a Sunday. Her husband, whom she married in 1994, usually accompanied her on Sundays. After Mr Murray's diagnosis in early February 2000, she visited her parents more frequently, generally at least three times each week. She is a hair stylist and cut her father's hair from time to time. [8] Mr Murray died peacefully at his home on 31 March 2001. He was resting in a chair and had been sipping a glass of whisky and smoking a cigar. He was 63 years old. Mrs Murray was with him when he died. She telephoned her daughter who arrived shortly thereafter. Mrs Murray was naturally distraught. She was assisted by her daughter in making the usual arrangements. Mrs Murray has required anti-depressant medication since her husband's death. [9] Both Mrs Murray and Mrs Allardice gave their evidence clearly and without embellishment and I found them both to be reliable and credible. There was, in any event, not much dispute about this aspect of the evidence.(b) Mr Murray's medical history
[10] Mr Murray was a heavy smoker. He suffered from smoking related disease with chronic bronchitis and emphysema. In the eighties, at least, he was also a heavy drinker. In the eighties and nineties he had numerous episodes of chest infection for which he attended his GP who usually prescribed antibiotics. A chest x-ray report dated 20 February 1987, disclosed long standing bronchitic change and quite severe generalised emphysema and pulmonary arterial hypertension. The accuracy of this report was a matter of some dispute between Dr Semple and Dr Moran. There is no subsequent mention of pulmonary arterial hypertension in Mr Murray's case records. In about 1989, he was screened as part of a study known as the West of Scotland Coronary Prevention Study, administered by Glasgow University. However, he was excluded from participation in the Study. His cholesterol level was 7.28; up to 5.2 is currently regarded as acceptable. Nowadays 7.28 would lead to a hospital referral or dietary advice. He was fit for work until about the Summer of 1990, although he did not appear to retire until 1991 or 1992. On 8 January 1991, Dr Semple wrote to Mr Murray's GP stating that Mr Murray was "really quite limited now with emphysema. Radiologically and clinically this is quite gross. Peak flow rate is 175.....I...have explained already that if he doesn't stop smoking completely there is absolutely no hope for him." Normal peak flow rate is about 500. By 1991 Mr Murray's emphysema was fairly severe. In the nineties however, he cut back on his smoking and drinking habits. His consumption of alcohol and smoking habits during that period cannot be stated with any precision. At their fortieth wedding celebrations in 1999 Mr Murray suffered a "breathless turn" while smoking a cigar. This led to a visit to his GP and subsequently to hospital referral which ultimately led to the diagnosis of mesothelioma. [12] Mr Murray was referred to Inverclyde Acute Hospitals in November 1999. A chest X-ray showed a left effusion with a collapsed lower left lobe. A CT scan of his chest showed what appeared to be a left sided mesothelioma. Dr Semple referred him to Hairmyres Hospital for consideration of open pleural biopsy. Mr Murray was admitted to Hairmyres on 24 January 2000; a bronchoscopy and pleural biopsy were carried out on 26 January; a chest drain was inserted and removed a few days later; he was discharged home on 4 February 2000. During that period the presence of malignant mesothelioma was confirmed. It was untreatable. His life expectancy was now under one year. Later that month, he underwent radiotherapy (three fractions) at the site of the chest drain. He was reviewed in March 2000 by Dr Semple who recorded that pain did not seem to be a problem. [13] Mr Murray, in the last year of his life, was less unfortunate than some mesothelioma sufferers. He did not suffer quite as much pain and discomfort as some, who have mesothelioma, do. I recognise that he did suffer pain and discomfort. However, Mr Murray accepted his fate stoically and did not complain, which was to his credit;(c) Life Expectancy
[14] Dr Semple's final opinion was that, but for the mesothelioma, Mr Murray's life expectancy would as at 31 March 2001 have been eight to nine years. Dr Moran's opinion on the same hypothesis was five years and possibly less. I found it surprising that there was such a difference on a number of important issues between these two distinguished experts. [15] Dr Semple proceeded on the basis that normal life expectancy for a 63 year old man is 19 years. This was said to be based upon an actuarial table which was not produced. Dr Moran's figure was 14.5 years taken Scottish Health Service Statistics based upon the 1991 Census, also not produced. Dr Semple's assessment of nine years was based upon a study of Scottish miners suffering from emphysema, in which he was involved. A Panel had been set up by the Department of Trade and Industry. It appeared that there were documents and tables relating to this study upon which Dr Semple placed reliance. None of these documents was produced. [16] Dr Semple was critical of Dr Moran's apparent reliance upon the radiology report dated 20 February 1987. His view was that, if it were correct, he would have expected to see an increased breathlessness condition over the ensuing five years with ankle swelling, and a bluish skin discolouration being noted in the case records. This was not to be found in the records. His view was that it was highly unlikely that Mr Murray had pulmonary arterial hypertension, and if he did, it was not significant. He accepted that there was an increased risk of Mr Murray suffering heart disease. If Mr Murray had cut back on his drinking in the Nineties then the risk of premature death through alcohol would be reduced. On the other hand, Dr Moran was of the opinion that the 1987 report was prepared by an experienced radiologist; there was no good reason to doubt its accuracy; the finding was to be expected in the circumstances; the fact that it was not mentioned in subsequent reports did not mean it was not still present. Dr Semple was also critical of Dr Moran's reliance upon the fact that Mr Murray was excluded from the West of Scotland Coronary Prevention Study in about 1989. Dr Moran's analysis was that Mr Murray appeared to have been excluded because of high cholesterol levels, and an ECG abnormality; a report in the medical records disclosed the ECG to be borderline/normal. Dr Semple was not familiar with this phrase and thought the author must have been inexperienced. Dr Semple argued that as later records showed a normal electrocardiogram in 1999, there was no objective evidence of heart or coronary disease. Dr Semple also pointed out that if Mr Murray had stopped smoking, the rate at which the continued and increasing obstruction of his airways would occur, would slow down. [17] Dr Moran's opinion was that neither ankle swelling nor bluish discolouration were direct evidence of pulmonary arterial hypertension. It was highly probable that Mr Murray had pulmonary arterial hypertension having regarded to the terms of the 1987 report and the severity of his emphysema. It may be symptomless until cardiac failure occurs. Pulmonary hypertension is caused by lung disease and there were several factors in its genesis. He was familiar with the West of Scotland Study. The records disclosed that in 1989 Mr Murray was consuming 46 units of alcohol which he regarded as fairly high. He had come across the phrase "borderline/ normal". He said it meant that the person reporting was unhappy with the result and it therefore meant abnormal. It was likely Mr Murray had a degree of coronary arterial disease; he was, at least, at greater risk of this than others. He thought it was difficult to identify the loss of life expectancy caused by Mr Murray's consumption of alcohol. The GP's records also disclosed that Mr Murray suffered from recurrent chest infection. This was a separate matter from the numerous entries showing his chest to be "clear" (on which he had been cross examined). This made Mr Murray's emphysema worse. Dr Semple's views were drawn from Scottish miners where criteria would be given in terms of lung function and related to life expectancy tables. Smoking damages the heart, and blood vessels as well as other organs. The effect of recurrent infection was that the lung function deteriorated. The fewer cigarettes and cigars smoked the slower is the rate of lung function deterioration. His assessment was focused on the effects of smoking. His figure of five years was based upon the "literature illuminated by [his] experience". Industrial emphysema cannot be compared with emphysema caused by smoking as there are other complications involved. There was also a difference between them on the inference to be drawn from oxygen levels recorded in the medical records. [18] Mr Maguire referred me to various parts of McEwan & Paton on Damages for Personal Injuries in Scotland, including Table 38 and submitted that an appropriate multiplier was 8.07. He criticised the evidence of Dr Moran on the basis that he placed too much weight on the 1987 x-ray report referring to pulmonary arterial hypertension, and that his views on life expectancy were based on limited information. He submitted that there was nothing in the GP records to show that Mr Murray had any heart problems. Dr Moran failed to take into account the fact that Mr Murray cut back on his smoking habits in the nineties. The records relating to oxygen levels demonstrated according to Dr Semple that it was highly unlikely that Mr Murray had pulmonary arterial hypertension. Dr Moran seemed to attach weight to the emphysema and to Mr Murray's smoking; the emphysema was a factor in the smoking already. He did not take account of the fact that Mr Murray in his later years at least smoked less frequently. The same point was made in relation to Mr Murray's alcohol consumption. The evidence about cholesterol levels was inconclusive. [19] Mr Anderson submitted that identifying a multiplier was not an exact science. Dr Moran heard Dr Semple's evidence but was not prepared to change his views. Dr Moran had taken into account the various matters referred to in the medical records such as possible heart abnormality, cholesterol levels, pulmonary arterial hypertension, emphysema, and recurrent chest infections; these fell to be weighed in the balance when assessing life expectancy. Dr Moran's point about smoking was that it caused or could cause illnesses other than emphysema. Mr Anderson drew my attention to various pages in the GP records to show that it had not been established that Mr Murray had given up smoking in the nineties. Mr Murray was smoking in 1999 when he had an episode of breathlessness, which led ultimately to the mesothelioma diagnosis. Dr Moran took an overview of Mr Murray's health and gave his views on life expectancy based upon the literature illuminated by the light of experience. Dr Semple's conclusions appeared to be entirely based upon tables relating to miners and the Ogden tables which related to England and Wales. [20] I found the evidence of each expert to be unsatisfactory in a number of respects. Neither produced the base material upon which their critical conclusions proceeded. They both relied on different statistical evidence which was not produced. This hampered a proper and complete understanding of their evidence, restricted possibly fruitful cross examination and informed comment by each on the other's opinion. Neither expert had examined the 1987 x-ray to which the report referring to pulmonary arterial hypertension related. They were fundamentally at odds over this issue. Dr Moran had not had an opportunity thoroughly to read all the medical records. Neither expressed an opinion on life expectancy on the hypothesis that his views on pulmonary arterial hypertension were unsound. They were both to some extent speculating on the interpretation of the medical records, which in places were not entirely clear. The GP's records contained contradictory notes on Mr Murray's smoking habits in the nineties. [21] I did not find the evidence of either expert sufficiently convincing to enable me to reject entirely the evidence of the other. On balance, I consider that Dr Semple has taken insufficient account of Mr Murray's emphysema and his smoking and drinking habits over the years, while Dr Moran has probably taken insufficient account of the fact that, while not giving up smoking or drinking completely, Mr Murray cut back these habits to a significant extent in his later years. I also consider that Dr Semple placed too much reliance on data relating to Scottish miners, which was not before the court. This chapter of his evidence could have been objected to with some justification. I found it particularly unhelpful not have this material. To a lesser extent, the corresponding part of Dr Moran's evidence can be criticised on the same basis. Balancing the expert evidence and taking into account its gaps and flaws as best I can, I incline to the view that because of his generally poor state of health, and his heavy drinking and smoking (albeit that Mr Murray cut back in his latter years), Dr Semple's figure of nine years is far too high. I consider that an appropriate figure for Mr Murray's life expectancy was 6.5 years as at 31 March 2001, had he not had mesothelioma.The first pursuer's claim as executrix for solatium
[21] Mr Maguire proposed an award of £54,500 which is the same as the award made in McManus' Executrix v Babcock Energy Ltd 1999 SC 569 at page 573F updated in accordance with McEwan & Paton's Tables to take account of inflation. He reminded me that, by section 9A of the Damages (Scotland) Act 1976, I was required to take into account Mr Murray's awareness of his loss of expectation of life under this head of claim. Mr Anderson submitted that there were differences in the present case which pointed to a slightly lower award than McManus. He proposed a figure of £45,000 to £50,000. [22] In my opinion, a fair and reasonable sum for this head of claim is £47,500. There are a number of significant differences between the present case and McManus. In McManus, the deceased suffered very real distress over a period of about eight months. He had hitherto enjoyed good health, did not smoke and drank only occasionally; he exercised regularly. At the age of almost 56 he would have been expected to live another 24 years until he was 80. He underwent major surgery, and chemotherapy and suffered its side effects. He suffered terrible pain and lost weight. He spent the last few weeks of his life in a Hospice. This is all in marked contrast to Mr Murray's circumstances as described above. I recognise of course that mesothelioma is an insidious disease and anyone who suffers from it deserves the greatest sympathy. However, the courts always examine the facts and circumstances of each case. Awards in similar cases provide a useful guide, but they should not be slavishly followed as a tariff (see McManus at page 583F). Mr Murray, appears to have been less unfortunate than most mesothelioma sufferers. He was at least spared the worst the disease can impose. Awards of solatium cannot be made with scientific precision. However, the differences between McManus and Mr Murray's circumstances are such as to justify a slightly lower award. [23] Parties were agreed that interest should run on the award at eight per cent per year from the date of death until payment.Claim by the first pursuer for necessary services rendered to Mr Murray under section 8 of the Administration of Justice Act 1982.
[24] Mr Maguire again relied on McManus. He submitted that the services rendered over the period of one year before Mr Murray died should be valued at £9,500; this was just under £200 per week. This was the total sum awarded in McManus updated to take account of inflation, and recognising that the services provided in McManus were more intense and over a different period. He also referred to Farrelly v Yarrow Shipbuilders Ltd 1994 SLT 1349 at 1351C&K. [25] Mr Anderson submitted that the services in the present case were less intense than in McManus and referred to various passages in that case to support the argument. Mr Anderson proposed £115 per week for one year i.e. about £6,000. [26] It is a difficult task to value necessary services rendered by a devoted wife to her dying husband. In general, I consider that the such services have been significantly undervalued over the years. It would be extremely difficult to find nursing care of the same quality as that provided by a devoted and loving wife. A wife is essentially on call twenty four hours a day even although she may render services for a few minutes, or half an hour from time to time throughout the day and night. The fact that a devoted wife is present most of the time must be a great comfort to any husband in such tragic circumstances. Unless some sort of time and motion study were to be carried out it would be extremely difficult to calculate the number of hours each day in which such a wife was actually doing something extra for her husband and thus rendering a necessary service, such as cooking a special meal, making additional cups of tea, cleaning, ironing, washing up, fetching and carrying etc. A cross check with rates paid to nurses is of limited assistance because unless the arithmetical exercise were to be based upon a team of nurses employed or available to perform all the necessary tasks twenty four hours a day, a realistic comparison cannot be made. While, no doubt, nurses and others in the care industry can provide high quality care, it is simply not the same as the devotion of a loving wife or husband. Moreover, it is notorious that nurses are not generally regarded in the eyes of the public as well paid. [27] In my view, Mr Maguire's adoption of the figures in McManus is misconceived. There were four separate periods; one was agreed on a basis that is not disclosed in the report; one was a nominal figure and different rates were applied to the remaining two periods. One cannot simply take a weekly average and transpose the figures to the present case; there is no logic in such an approach. Moreover, in McManus the circumstances were somewhat different. Mr McManus suffered to an even greater extent than Mr Murray. The additional necessary services were more extensive and probably more intense, albeit over a slightly shorter period. This would be balanced to some extent by the fact that Mrs McManus was in employment whereas Mrs Murray was not. [28] There was no evidence at all as to what might be suitable remuneration or a suitable rate. £115 per week is less than £16.50 per day for a seven day week. That seems to me to be far too low an estimate of the value of the extra services provided by a wife to her dying husband. Mr Maguire's figure of about £200 per week is about £28.50 per day. There is no evidence of what it would cost to have a suitably qualified nurse on call twelve or even twenty four hours per day and to be present say in the morning and evening when extra assistance might most likely be required. In this case, it also has to be borne in mind that Mr Murray, even without mesothelioma, did not enjoy good health. [29] Although I have criticised Mr Maguire's methodology, I consider that his resulting figure of just under £200 per week or £28.50 per day is a relatively modest one in the circumstances. There is no basis in the evidence which enables me to apply different rates to different periods. In my opinion, in the circumstances, the sum of £9,500 claimed is reasonable and I shall therefore award it under this head of claim. [30] Parties were agreed that interest should run at eight per cent per year from the date of death until payment.Claim by the first pursuer as an individual for loss of personal services under section 9 of the Administration of Justice Act 1982.
[31] Mr Maguire accepted that the evidence disclosed that these services were not extensive. He suggested that an award should be made from May 1999 when Mr Murray had his breathless "turn" and that £5000 in total was appropriate for both past and future loss of such services. Mr Anderson proposed £350 per annum for six years which brought out a total of £2,100. He contrasted the circumstances in McManus where Lord Kingarth awarded £15,000 based upon a multiplicand of £1,500 per year and a multiplier of ten for a fifty six year old man. [32] In my view, having regard to the paucity of evidence, only a relatively small award is justified. By 1999, Mr Murray was in a generally poor state of health. The first pursuer's evidence amounted to no more than that the deceased occasionally helped out with cooking and household chores. Unlike Mr McManus, Mr Murray, in his latter years at least does not appear to have been "particularly adept at a wide variety of tasks" (see McManus at page 590E). In these circumstances, the sum proposed by Mr Anderson seems to me to be on the generous side. I shall nevertheless award it (£2,100). [33] Parties were agreed that interest should run at four per cent a year on one third of the sum awarded from 30 May 1999 to the date of decree and thereafter at eight per cent on the whole sum awarded until payment.Funeral Expenses
[34] These were agreed in the Joint Minute at the sum of £2076.00. It was also agreed that interest should run on that sum at the rate of eight per cent a year from 30 April 2001 until payment.Loss of Support
[35] I have already determined that the deceased's life expectancy was about 6.5 years. Parties are agreed that the multiplicand is £1688.60 per year from 1 May 2003. For the period from date of death to 30 April 2003, parties are agreed that the loss of support is £3,737.00 (although the Joint Minute stipulated £3,237) exclusive of interest. Mr Maguire proposed a multiplier of 8.07 based upon a life expectancy of 9 years. For the figure of 8.07 he relied upon the actuarial tables in Table 38 McEwan & Paton and reduced it by 2 to take account of the two years between the date of death and the proof. Mr Anderson proposed a multiplier of 4, but pointed out that if Table 38 were used then the multiplier for an expectancy of 6 and 7 years would be 5.58 and 6.43 respectively. [36] Adopting the approach of both parties leads me to a multiplier of about 6 based upon a life expectancy of 6.5 years. Applying Mr Maguire's methodology, that falls to be reduced to 4. This produces a total of £6,754.00 to which falls to be added the agreed sum of £3,737 making a total of £10,491. [37] Parties were agreed that interest should run on the sum of £3,737 at 4% per year from the date of death until 30 April 2003 and at 8% per year on the total sum awarded, £10,491, from the 1 May 2003 until payment.Claims by the first and second pursuers under section 1(4) of the Damages (Scotland) Act 1976
(i) Mrs Murray
[38] Mr Maguire submitted that Mrs Murray's worries began in May 1999 following her husband's episode of breathlessness. He referred to the poignant circumstances of Mr Murray's death. Mrs Murray missed her husband, was lonely and her social life had been curtailed. Mr Maguire informed me that Wells v Hay 1999 Rep LR 44, which had been disregarded by Lord Kingarth in McManus, was no longer under challenge. A Jury awarded the mother of a youth aged nineteen, who died sixteen days after a horrifying car crash, the sum of £37,146 under section 1(4) as amended. That sum, updated, amounted to £40,442. He also referred me to Strang v le Brusq 2001 Rep. LR 51 in which a jury made loss of society awards of £30,000 to each parent for the loss of their twenty year old son who was killed outright in a car crash. Mr Maguire submitted that damages to a widow should be on a par with these awards. He also drew my attention to Kempton v British Railways Board, McEwan & Paton on Damages 13/93-2 where a widow aged 37 was awarded £35,000 for loss of society; her husband was 39 at death; and to Shaher v British Aerospace Flying College Ltd 2002 SLT 833 where Muslim parents were each awarded £35,000 for loss of society for the death of their eldest son. The ages of the parents and their son are not disclosed. This case is the subject of a reclaiming motion due to be heard in May 2003. [39] Mr Maguire also submitted that there is too great a disparity between awards for the loss of a child and the loss of a spouse. He therefore proposed an award of £35,000 for the first pursuer under this head of claim. [40] Mr Anderson relied heavily on McManus. He accepted that all three elements of section 1(4) were present. He submitted that there was no warrant to depart from approach there subject to updating. If anything a lower award was appropriate because of the particular circumstances of that case. The fact that the Murrays' marriage was a long and happy one was not a good ground for increasing the award. The cases cited by the pursuers were not relevant except Kempton which Lord Kingarth considered in McManus. He submitted that updating McManus an appropriate award would now be between £18,530 and £21,800, which was £17,000 to £20,000 updated. [41] In McManus, I note that Lord Kingarth held that section 1(4) of the 1976 Act, as amended, was not intended to change the basis of the loss of society award (ibid page 582D). He concluded that (i) previous awards should be considered with care, (ii) distress in contemplation of the suffering of the deceased prior to death can be significant in the case of terminal illness, (iii) jury awards should be taken into account (iv) Wells should be distinguished on the basis that it related to the death of a nineteen year old youth; and because the circumstances were very different, (v) loss of society awards had to a degree fallen out of step with the general level of awards, particularly in relation to adult children for the death of a parent, (vi) all three elements identified in section 1(4) were present in the case before him, (vii) in assessing quantum the fact of a long and very happy marriage has to be taken into account, and (viii) awards of £20,000 for the widow and £5,000 to each of the adult sons were appropriate. [42] I agree that all three elements of section 1(4) are present in this case. I also gratefully accept and adopt Lord Kingarth's analysis as set out above. In my opinion, jury awards to a parent for the death of a child of whatever age are not directly relevant when considering a claim by a widow. Nor are awards to children of whatever age for the death of a parent. They are, however, of some interest as they show generally that judge-made awards may be out of line with the value placed by society on the loss of a relative. However, as Mr Anderson pointed out, the Courts have always regarded such claims as different when assessing quantum. If they are now to be equiperated it is not for me, sitting in the Outer House to do so. Moreover, jury awards are only part of the overall picture which must be considered. The circumstances of each case must always be analysed and weighed in the balance. I am content to follow the approach in McManus. In my opinion, a slightly lower award than McManus, updated, is appropriate. The spouses there were a few years younger. Mrs Murray's grief and suffering was real but not extreme. The distress and anxiety endured by Mrs McManus is likely to have been harder to bear given that her husband was a fit and healthy man, and having regard to the particularly tragic circumstances of the last eight or so months of his life. In my opinion, a fair and reasonable sum under this head is £20,000. [43] Parties were agreed that interest should run at four per cent a year on one half of the sum awarded from the date of death to the date of decree and thereafter at eight per cent on the whole amount until payment.(ii) Mrs Kirsten Allardice
[44] Mr Maguire referred to the cases noted in (i) above. His submissions essentially covered the same ground. He submitted that there had been a good relationship between father and daughter; she lived nearby and visited her parents two or three times each week; she was present shortly after Mr Murray died. He pointed out that awards for parents varied between £30,000 and £45,000. The award in McManus for adult sons was £5,000. Updated that would amount to £5,450. He submitted that in the past there had been too great a disparity between awards to adults and children for the death of a parent. He proposed an award of £12,000. [45] Mr Anderson accepted that there was a normal loving relationship between Mrs Allardice and her father. Mr Murray was in poor health, quite apart from his mesothelioma, and his life expectancy was already reduced. The period over which Mrs Allardice would be deprived of her father's society and guidance would be limited. She had already left the family home and was married. He submitted that throughout the whole of the last century awards had been greater for the death of a spouse than the death of a parent. Awards for young children were larger than adult "children". Kempton where an award of £11,500 for quite young children was therefore distinguishable. In Schaher the age of the parent was 62 but the son's age was not disclosed in the report or in Lord Wheatley's Opinion. That case was being appealed essentially on the ground that the Lord Ordinary fell into the trap Lord Hope of Craighead warned against in Girvan v Inverness Dairies 1998 SC (HL) 1, namely taking account of one jury award and not balancing it against other awards. The best guidance was McManus and a similar award should be made which updated would be £4,905 to £5,450. [46] In considering the appropriate sum to award, I note in particular that Mrs Allardice, left the family home when she was 20. She married a few years later and was 32 when her father died. There was a normal loving relationship between father and daughter. She visited the family home regularly. Her distress, anxiety, grief and suffering and loss of society and guidance were no greater or less than one would reasonably expect them to be in relation to the death of a parent suffering from a fatal disease. I disregard Shaher as it is the subject of a reclaiming motion. Parties agreed that I should not await the outcome of that case before issuing my Opinion. It is not, in any event, directly relevant. My impression is that the award of £5,000 in McManus was on the low side although it offers the best general guidance. Historically, the amendment to the 1976 Act arose in part because of the groundswell of opinion that loss of society awards by the courts were too low (see McManus at page 579E-I). As the Scottish Law Commission observed, there can be few injuries more serious for a family than the death of one of its members. In my opinion, a fair and reasonable sum to award is £6000. [47] Parties were agreed that interest should run at four per cent a year on one half of the sum awarded from the date of death to the date of decree and thereafter at eight per cent on the whole amount until payment.Recovery of Benefits
[48] Parties were agreed that no State Benefits fell to be taken into account or deducted by the Court in making its awards.Summary
[49] My assessment of the claims is as follows:-1 The first pursuer as executrix
(a) Solatium to date of death £47,500
(plus interest at 8% from the date of death)
(b) Section 8 services £9,500
(plus interest at 8% from the date of death)
(c) Funeral Expenses £2,076
(plus interest at 8% from 30/4/01)
2 The first pursuer as an individual
(a) Loss of services under section 9 £2,100
(plus interest at 4% on one third from 30/5/99 to the date
of decree and thereafter at 8% on the whole sum awarded)
(b) Loss of support £10,491
(plus interest on £3737 at 4% from the date of death until
30/4/03, and on £10,491 from 1/5/03 at 8%)
(c) Claim under section 1(4) £20,000
(plus interest at 4% on one half from the date of death to the
date of decree, and thereafter at 8% on the whole sum awarded)
3 Second pursuer as an individual
Claim under section 1(4) £6,000
(plus interest at 4% from on one half from the date of death to the
date of decree, and thereafter at 8% on the whole sum awarded)
Result
[49] I shall sustain the first and second pursuers' first plea-in-law, repel the first, second and third pleas-in-law for the defenders and grant decree in favour of (i) the first pursuer as executrix in the sums specified in paragraphs 1(a), (b), and (c) of the above Summary, (ii) the first pursuer as an individual in the sums so specified in paragraphs 2(a), (b), and (c) and (iii) the second pursuer in the sum so specified in paragraph 3, all with interest as above noted. All questions of expenses are meantime reserved.
