Weir & Ors v. Robertson Group (Construction) Ltd & Ors [2006] ScotCS CSOH

"Explained and averred the deceased and two of his colleagues helped to remove the section of roofing which created the hole to facilitate installation of a staircase. The deceased and his colleagues were therefore aware of the existence of the whole."

In the course of his cross-examination of the pursuer, Mr Laing sought to advance a case that the deceased ought to have known that the safety net had been removed. Objection was taken to this line on the basis that there was no record for it. I upheld that objection. Although the new personal damages rules contained in Rule of Court 43 encourage abbreviated pleadings, they do not dispense with the requirements of fair notice. Rule of Court 43.2 requires the summons to contain averments "relating only to those facts necessary to establish the claim". The same approach, in my view, applies mutatis mutandis to the defences, though there is no specific rule about defences. The defences should aver the facts which the defender regards as necessary to support his defence or plea of contributory negligence. Otherwise how is the pursuer to know what investigations to make and what evidence to lead? On the basis of my ruling, the only contributory negligence case open to the defenders was that the deceased was aware of the existence of the hole. It might fairly be inferred that the first defenders were contending that he was careless in being too close to it or stepping into it.

[8 ] The difficulty for the defenders in advancing a case on contributory negligence is the lack of any eye-witness evidence of what happened. The evidence that there was came from two individuals employed by the first defenders, namely Mr Mackay, the site manager, and Mr Illsley, the project manager. They were both careful and patently honest witnesses who were clearly upset by what had happened. It is apparent from their evidence that they could say very little about how the accident occurred. Mr Illsley said that from his office at some point between 8 and 10am, for perhaps a split second, he observed a man working on the roof in a position that suggested he was taping the joints. But he could not say whether that was the deceased or someone else. That observation of a man on the roof occurred, on that timing, at least 50 minutes and possibly up to 2 hours and 50 minutes before the accident. Mr Illsley confirmed that there was no problem with visibility on that day. He had been on the roof either that day or the next day and was able to see the hole from a distance of 5 to 7 metres. He also said that there was no problem with the weather, but this was in an answer to a question about visibility, and I took the answer as limited to that. There was no evidence as to whether, for example, it was or had been raining so as to make the roof slippery. Mr Mackay said that when he was personally involved in lowering the pre-cast steps through the hole, the deceased approached him and offered to help. He refused that help and the deceased went away. Mr Mackay did not know what he did then. He was able to say, however, that after the accident was reported he saw some tape hanging over the edge of the hole, suggestive of the deceased having been working on taping the joints just before he fell. From this evidence it is possible to infer that immediately before the accident the deceased was doing this work on the roof. To do this he would require to work downwards from the top of the curved roof. He would be walking backwards and bending to fix the tape to the roofing. But more than that one cannot say. In particular, one cannot say whether he simply stepped backwards into the hole without looking or whether, on the other hand, he slipped or tripped on the roof. It might have been possible for some light to have been cast on this by forensic examination of the body at the foot of the steps, but no evidence of any such examination was put before me. Equally, evidence of the state of the roof might have been instructive, to see, for example, whether there were any obstructions over which the deceased might have tripped or whether the roof was wet. It might have been relevant to see whether the tape was neatly fixed all the way down until close to the edge or whether, conversely, the tape showed signs of a fall having started much higher up. Without any evidence from which to be able to determine what happened to cause the fall, it seems to me impossible for the court to find, even on balance of probabilities and by drawing inferences, that the deceased failed, in some way, to take sufficient care for his own safety so as to justify a finding of contributory negligence.

[9 ] Mr Laing submitted that notwithstanding the lack of evidence as to precisely what happened, the mere fact that the deceased had put himself in a position of proximity to the hole so that he could slip, trip or fall in some other way was itself sufficient to justify the finding of contributory negligence. I disagree. There was no case put forward that the deceased should not have been on the roof or was not carrying out instructions from his employers. Indeed, Mr Laing accepted that the analysis had to proceed on the basis that he was meant to be where he was. Equally, since I had ruled that no such case was open on the pleadings, there was no case put forward that the deceased was or ought to have been aware that the safety net had been removed. Again, Mr Laing in his submissions accepted that the analysis had to proceed upon the basis that the deceased was entitled to assume that the safety netting was in place. I do not accept the suggestion that the deceased should not have been entitled to rely upon it since it might have failed had it not been tied on properly. In circumstances where the deceased could reasonably assume that the safety net was in place, and was working according to instructions, it seems to me to be impossible to find that he was at fault in being on a part of the roof close to the hole.

[10 ] Accordingly, I reject the defenders' argument on contributory negligence.

Damages

[11 ] I turn next to the question of damages. On these questions I was addressed carefully and in some detail by both counsel, with reference to written submissions and to schedules. I found this of considerable assistance. There was also a considerable amount of agreement between counsel on a number of the items.

[12 ] Funeral expenses were agreed in the sum of £4,158.95 and it was also agreed that interest should run on this figure from 15 July 2002 until the date of decree.

[13 ] There was considerably more dispute as to the other items claimed, namely loss of support, claims under section 1(4) of the Damages (Scotland) Act 1976 and claims for loss of services under section 9(2) of the Administration of Justice Act 1982. I deal with each of these below.

Loss of support

[14 ] The award of damages for loss of support involves identifying both a multiplier and a multiplicand. In the present case the multiplier was a matter of substantial agreement between the parties. The multiplicand, however, raised issues of principle upon which there was no similar agreement.

[15 ] The first step in arriving at the multiplicand is to assess the deceased's net income. The deceased was self-employed. His tax return for the last full year before his death showed a figure for earnings, net of tax and national insurance contribution, of £17,789. However, his previous two years, in reverse order, showed figures of £11,825 and £7,392. In evidence, the pursuer explained that the deceased had been in the construction industry for about 10 years and he was starting to build up his business and getting a name for himself. In those circumstances it is not surprising that the figures should show a rise in net earnings over those three years. The pursuer might have been able to argue that earnings for the following years would have continued to show an increase, but she contented herself with reliance upon the figure of £17,789. For the first defenders, it was argued that the fact that the deceased was self-employed raised "some imponderable contingencies" (see Sargent v Secretary of State for Scotland 2001 S.C.L.R. 190 per Lord Clarke at para.[27]); and further that the use of a longer period, rather than the final year only, would tend to even out any irregularities arising from self-employment (see Prentice v Chalmers 1985 S.L.T. 168 per Lord Hunter at p.172). Absent the evidence about the deceased's business being built up and him beginning to get a name, I would have accepted that there was some merit in taking the average over a longer period. However, that would be inappropriate and unfair to the pursuer if, as I accept, she is right in her explanation of why the figures have increased over the recent years. There was no evidence led either from the pursuer or the first defenders to suggest that the building industry was susceptible to periods of downturn such as to make it unlikely that someone in the position of the deceased would have been able to maintain earnings of the rate indicated by his latest tax return. In those circumstances I am prepared to accept that figure as representing a reasonable estimate of his net earnings.

[16 ] The pursuer argued that I should take account of a likely increase in the deceased's earnings between the date of death and the date of decree. It was suggested that, as a rough and ready approach, I should increase his earnings in accordance with inflation. She did not argue that in calculating future wage loss I should make some prediction of increased earnings over the next 13 years or so. The pursuer's submissions were opposed by the first defenders. They submitted, as I understood it, that the earnings of a self-employed person in the position of the deceased were too imponderable; I should simply take the net earnings as I found them to be at the date of death. I prefer the pursuer's submission on this point. It seems to me that the court has sufficient information to make some small increase to the deceased's earnings over the 4 years to date. Logically it would be sensible to continue to take account of future increases, but no information was made available to me to enable this to be done. The pursuer's argument, therefore, tends towards a conservative approach and I think it is justified in the present case.

[17 ] On the basis that the pursuer's approach was accepted by the court, parties were agreed that the appropriate figure to take for the deceased's net earnings as they would probably have been as at today's date was £19,923. This was the figure on the basis of which to assess future loss of support. As regards past loss of support, it is appropriate to take the average between that figure and the starting point of £17,789. This leads to a calculation for past loss of support over the 4 years up to the date of decree on the assumption of an average income of £18,856.

[18 ] The next question to consider is what contribution the deceased made and would have made to the family from those net earnings. It was agreed that there were two factors relevant to this. One was to ascertain a percentage which could be applied to the deceased's net earnings to represent how much of those earnings would have been available to the family and therefore have been lost on account of his death. The second was the question of whether the income of the surviving spouse is to be taken into account.

[19 ] Before coming to deal with these two separate factors, it is necessary to summarise briefly the evidence given by the pursuer in this respect. She said that the deceased smoked cigarettes, possibly up to about 20 a day depending upon how busy he was. He did not drink much. He never went to the football. She gave the impression of a close family life in which the deceased was involved with domestic affairs and gardening as well as being a good father to his children. She felt that substantially all of his earnings came into the family and that he kept little for himself. She also had an income of £3,615.15. Both of their incomes were paid into the joint account and used for the benefit of the family as a whole.

[20 ] I am told that there is no hard and fast rule reflected in the Scottish authorities as to the appropriate percentage to apply. However, the English cases have shown the development of a standard practice, which might almost be described as a rule, to be applied in the absence of factors justifying a departure from it. In terms of this rule, the appropriate percentage is 75% where there are dependent children of the family, and 66.67% where there are no children. The justification for this that where there are children the net earnings of the deceased are divided between four equal recipients, namely the deceased himself, the spouse, the children and the household in general, whereas, where there are no children, there are only three equal participants in the net earnings. An exposition of this conventional rule is to be found in the case of Robertson v Le Strange [1985] 1 All.E.R. 950 at 955. It is not necessary for me to refer to other passages in the authorities and textbooks in support of this approach, since Mr Smith, for the pursuer, suggested that to reflect the fact that there would be dependent children in the family for a number of years but that thereafter they would leave the home, I should find a figure between these two extremes and take 70% as the appropriate percentage. Mr Laing for the first defenders was content with this.

[21 ] The more controversial matter was the question of whether any, and if so what, account should be taken of the fact that the pursuer herself was earning in the year prior to death and would, one must assume, have continued earning in the future. In Brown v Ferguson 1990 S.L.T. 274, Lord Sutherland suggested that the proper approach was as follows:

"The normal approach to the position where both spouses are earning is to add the income together and deduct say 25 per cent as being for maintenance of the deceased. The net figure so arrived at less the earnings of the surviving spouse forms the loss of dependency."

That approach, as Mr Laing pointed out, has been applied, albeit without further analysis, in a number of cases including Wotherspoon v Strathclyde Regional Council 1992 S.L.T. 1090, Beggs v Motherwell Bridge Fabricators 1998 S.L.T. 1215 and Sargent v Secretary of State for Scotland (supra).

[22 ] Mr Smith urged me not to adopt this approach. He submitted that it was "not logical". He also submitted that it was not consistent with the decision of the House of Lords in Shiels v Cruickshank 1953 S.C. (H.L.) 1. I do not accept that the decision in Cruickshank is inconsistent with the approach adopted in Brown v Ferguson and the succeeding cases. In Cruickshank the action was brought by the widow of a man killed in a road accident. The defender averred, in answer to the claim for loss of support: "The defender also believes and avers that the pursuer has a substantial private fortunate available for her support." That plea by the defender was debated on the Procedure Roll and the plea to the relevancy thereof was sustained. The House of Lords dismissed the appeal from the Inner House, which had upheld a decision of the Lord Ordinary. The reason, as I understand the speeches of their Lordships, is that that averment as it stood was irrelevant. It was not an averment which, in terms, is focused upon the extent to which the deceased's income contributed to her support. But that is not the same as saying, as the rubric summarised the decision, that the widow's private means did not fall to be taken into account in assessing damages. Their Lordships left open the possibility that the widow's own means might be relevant to an averment of the extent to which she was in fact dependent upon the deceased's income.

[23 ] I have to confess to having had some difficulty in understanding the justification for the approach in Brown v Ferguson, at least in the ordinary case. Take a case of the deceased having earned, net of tax and national insurance contributions, say, £20,000 per annum. The assumption underlying the 75/25 split, which is considered appropriate in a case where there are children of the family, is that the deceased will have spent, approximately, a quarter of his net earnings, i.e. about £5,000, on himself. That is, presumably, because that is the amount which he chose to spend on himself. One cannot assume, without more, that he only spent this amount because that was all that was available. In such circumstances, if one now assumes that the wife takes a job and earns £5,000, why should one assume that the deceased will spend more on himself, or that any less of the deceased's net earnings would have been available to the family? Much will depend, it seems to me, on whether the deceased's spending on himself is limited by the amount available for the needs or lifestyle of the family. In a case where, within limits, he will spend as much on himself as is available, I can see some logic for saying that as the wife's income increases, and with it the money available to (and the lifestyle enjoyed by) the family, the amount spent by the deceased upon himself may rise. But I fail to see why that should be an assumption. It may be that evidence would be required to assess into which category a case falls. It seems to me likely that a case such as the present, where the wife earns only a small fraction of the deceased's earnings, will fall into the category where one should simply ignore the wife's earnings.

[24 ] However, I am conscious that this is not the approach that has been followed in Scotland and I do not think that I, as an Outer House judge, should depart from the line of decisions to which I have referred. I therefore propose to take the pursuer's income into account in the way described by Lord Sutherland in Brown v Ferguson. Parties were agreed as to the appropriate method of calculation to give effect to this.

[25 ] As I have indicated, there was agreement between the parties as to the multiplier to be adopted. The agreed multiplier is 17.61. In accordance with Dingwall v Walter Alexander & Sons (Midland) Ltd 1981 S.L.T. 313, it was agreed that the multiplier should be applied from the date of death. It was also agreed that the appropriate course was to treat the period between the date of death and the date of decree, in this case almost precisely 4 years, as giving rise to past loss of support; and to deduct that period from the multiplier to obtain the new, reduced, multiplier for calculating future loss of support. This seems to me to be an entirely sensible way of proceeding. It was agreed between the parties that the appropriate apportionment for past and future loss of support is 60% to the pursuer and 20% to each child.

Section 1(4) Damages (Scotland) Act 1976

[26 ] Section 1(4) of the Damages (Scotland) Act 1976 provides for an award to the deceased's "immediate family" as compensation for (a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death; (b) grief and sorrow caused by the death; and (c) the loss of non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance had he not died. It is agreed that I should approach this part of the claim on the basis that the deceased died almost instantaneously and therefore that any award under section 1(4) should be confined to heads (b) and (c). The pursuer argued that I should award £45,000 for the pursuer personally and £40,000 each for the two children. The first defender, on the other hand, argued that the appropriate award for the first pursuer personally was £25,000, and that that for the two children was £12,500 each.

[27 ] Until recently there was a considerable disparity between awards of damages made by judges and by juries in respect of bereavement. This disparity was recognised by the Inner House in Shaher v British Aerospace Flying College Ltd 2003 S.C. 540, in which it was described as a "huge gulf". In that case the court reiterated that judges should look for guidance to jury awards as well as judicial awards, the rationale being that assessment of damages is primarily a matter for a jury and that, in making awards at the level they did, juries reflected the expectations of society. The difficulty was in identifying how to bridge that gulf. In a case where there is a clear pattern of jury awards, judges should take that pattern into account. However, the court should be wary of relying upon only one or two jury awards in the absence of such a pattern. Nonetheless, even in cases where no particular pattern can be identified to inform the proper level of award applicable to specific relationships, nonetheless the court should generally take account of the fact that jury awards have, in the past, tended to be higher than judicial awards and make appropriate adjustments.

[28 ] Shaher was concerned with an award for loss of society to the parents of a student who had died in a flying accident. The Lord Ordinary, by reference to his assessment of current jury awards, had awarded them £35,000 each under that head. The Inner House reduced those awards to £20,000 each. The relationship in Shaher was very different to that to which I am concerned in this case. Here I am concerned with an award to the wife and young children of the deceased.

[29 ] I was helpfully referred to examples of pre-Shaher awards of this type. In Wotherspoon v Strathclyde Regional Council 1992 S.L.T. 1090, loss of society awards of £6,000 (now worth £8,580) and £7,000 (£10,000) were made in favour of children aged 8 and 5 respectively. In McManus v Babcock 1999 S.C. 569, a 57 year old widow was awarded £20,000 for distress, grief and loss of society. The marriage had lasted 29 years and the family was clearly a close one. Although both children had grown up, one still lived at home and the other was in regular contact. In Sargent v Secretary of State for Scotland, a 15 year old child received an award of £4,000 (now worth £4,520). Since Shaher, I should approach these judicial awards with caution.

[30 ] Mr Smith, for the pursuer, referred me to two recent jury awards to widows and children of a deceased. In Warnock v Clark Contracts 2005 Rep.L.R. 90, a loss of society award of £40,000 was made in favour of the widow of a 34 year old man who died after falling through a skylight. The report indicates that awards in favour of the three children, aged 9, 6 and 3 at the date of death, were in the amount of £23,000 each, but I was told by counsel that this is incorrect and that the actual figures were approximately £16,000. The second jury award was that in Gillies v Lynch (unreported 24 March 2006), in which the jury awarded £80,000 to the mother of a 24 year old female who was killed in a road accident. Mr Smith told me that he had appeared in that case and that it had certain unusual features. I was shown a draft of the reference to that case in the (as yet unpublished) second edition of Hajducki, Civil Jury Trials. It appears that the deceased's mother had a long history of mental health and physical problems, including depression, had an unusual degree of emotional dependence upon the deceased, became aware of the death in the most harrowing of circumstances and was suffering from a pathological grief reaction. I was also told that a motion for a new trial had been enrolled. It would be dangerous, in my opinion, to take too much from either of these awards. They certainly do not form a pattern, either taken by themselves or when added to the jury awards mentioned in Shaher. The most that can be said is that the facts in Warnock bear a close similarity to those in the present case, having regard to the age of the parties and the fact of the apparently instantaneous death of the deceased.

[31 ] Since Shaher, there have been two further decisions of the Inner House which are of relevance to this area. The first was McLean v William Denny & Bros Ltd 2004 S.C. 656 in which the Inner House upheld an award of £28,000 to the widow of a 75 year old man who died of mesothelioma. In Murray's Executrix v Greenock Dockyard Co Ltd 2004 Rep.L.R. 86, the Inner House, differing from the Lord Ordinary, made awards of £28,000 and £10,000 respectively to the 63 year old widow and the 32 year old daughter of a man who also died of mesothelioma. I do not think it necessary to go into the facts in each of those cases, but they provide some helpful guidance on how the court should approach the matter of awards under section 1(4) in the light of Shaher. The court in McLean reaffirmed that there was evidence that in general judicial awards in bereavement cases had been on the low side. However, it emphasised the difficulties of applying any particular jury award. As it pointed out, "little is known of the circumstances" of a particular case; "It cannot be known what factors the jury regarded as influential". This reinforces the need to try to identify a pattern before following the level of jury awards uncritically. This point, so it seems to me, has particular force in relation to the two recent jury awards to which I have referred. In Murray's Executrix, the court emphasised that "there is a longstanding and continuing tendency for awards to create a hierarchy between different classes of relative" and that "while an award for one class of relative may be of some value in considering what would be an appropriate award in respect of another class, it cannot be assumed that what holds good for one will necessarily apply to the other". The same point was made in McLean, where it was said that the jury awards, being relatively few in number, did not necessarily "yield a measure which is readily transferable to a different class of claimant".

[32 ] Finally, I should mention two recent judicial awards to which I was referred. These also were concerned with death as a result of mesothelioma. In Ryan v Fairfield Rowan Ltd 2004 Rep.L.R. 138, Lord Drummond Young made an award under section 1(4) of £28,000 to the elderly widow of a 78 year old man. In Cruickshank v Fairfield Rowan Ltd 2005 S.L.T. 462 Lord Brodie awarded £10,000 to the elderly mother of a 54 year old man. That judgment in particular provides a helpful summary of the approach in that type of case.

[33 ] A number of matters relevant to the assessment of an award are well-established or are clear. First, there is an established hierarchy of awards. An award to a widow is likely to be significantly higher than an award to parents or children of the deceased. There are good reasons for this. The husband and wife will have developed and grown together throughout their marriage, both physically and emotionally. The loss of a spouse will be particularly hard to bear. Within the range of other relatives, much will depend upon age and vulnerability. The likely award to a parent of a deceased child will vary according to the age of the child and the emotional dependency of the parent on that child. Similarly, the likely award to a child of a deceased parent will depend to a large extent on the age and dependency of the child upon the parent. Further, there seem to me to be differences in the assessment of what award is appropriate in the case of sudden death as opposed to death by debilitating illness, particularly, in the latter case, when the deceased is elderly. The case of sudden death will involve only paragraphs (b) and (c) of section 1(4) of the Act. The case of death from debilitating illness, such as mesothelioma, is likely to involve serious consideration of paragraph (a) as well, but on the other hand there will usually be a reduced life expectancy. In looking for any direct comparison in the present case I would tend to put to one side cases such as Ryan and Cruickshank as well as McLean and Murray's Executrix. All involved elderly widows of victims of mesothelioma. I would expect the awards in such cases to be lower than in a case such as the present, involving a 36 year old widow with her whole married life ahead of her. In a sudden death case, Shaher is arguably more relevant, though the award in that case was to the parents of the deceased. I would expect an award to the widow of the deceased to be significantly higher than that in Shaher.

[34 ] The pursuer and her late husband had been married for some 15 years at the time of his death. On the evidence before me the marriage was a particularly close one. The pursuer described her husband's contribution in this way: "He made the kids laugh. He had time to spend with them." She described how typically on a Saturday he would be up before any of them came down for breakfast and he would have made a packed lunch and be ready to take them all out on a surprise trip. He would play with the children, make things for them, take Steven to football practice and sit and draw with Stacie. In addition he would be around the house, doing the gardening, taking them all dancing and driving them wherever they went. He was very much a family man. I was told of the upset caused to the children. The pursuer described how the upset has never really left Stacie. Steven, the younger of the two children, had become moody. Stacie had not got over her initial problems. She was angry; she had had counselling but that did not help her; she had sometimes taken to drinking; and she had tried self-harm. Steven will go to college and Stacie to university, but clearly the upset will stay with them. I heard evidence from Stacie which confirmed the picture given by the pursuer.

[35 ] It seems to me that a fair award to the pursuer under section 1(4)(b) and (c), having regard to the previous authorities, is one of £35,000. This is higher than the award in Shaher, but the relationship to the deceased justifies this. It is also higher than the awards in the mesothelioma cases, and deliberately so. It was agreed that I should treat both children of the family the same - and in my opinion it would have been invidious to do otherwise. It seems to me that the figures put forward by Mr Smith cannot be justified by the authorities. Equally, however, the £12,500 suggested by Mr Laing does not take fully into account the very special relationship between the children and their father. I consider that an award of £17,000 for each child is the correct figure.

[36 ] It was agreed that 50% of these figures would be attributed to the past and would attract interest at half the judicial rate from the date of death until the date of decree.

Loss of services

[37 ] Finally, I have to deal with the question of loss of services. The deceased was clearly a very handy individual, and helped not only in the garden but around the house. He did the decorating, built an arch in the livingroom, built his own garden shed, helped with the gardening and undertook driving duties for the family. I am satisfied that had he lived he would have continued to do a large amount of the work around the house. It is not possible to give a precise evaluation but it seems to me that a fair value to be attached to the services he contributed and which have been lost by his death is £1,750 per annum. In relation to past services I shall, therefore, award the sum of £7,000, with interest at 4% over that period. As regards future services, I will take the same multiplier, deduct the 4 years and in consequence make an award of £23,817. It was agreed that the awards of services should be apportioned between the pursuer in her own right and the two children on the basis of 67% to the pursuer and 16.5% each to the two children.

Disposal

[38 ] Parties helpfully provided me with spreadsheets on the basis of which I could quantify the awards resulting from my decisions. In the alternative, they suggested that I should put the case out By Order so that they could do the calculations. I propose to adopt the latter course.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Weir & Ors v. Robertson Group (Construction) Ltd & Ors [2006] ScotCS CSOH_107 (11 July 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_107.html Cite as: [2006] ScotCS CSOH_107, [2006] CSOH 107

Scottish Court of Session Decisions