Scottish Court of Session Decisions

 

 

 

 

 

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 121
PD1343/13	OPINION OF LORD BANNATYNE   in the cause   JOSEPH BERNARD McCARN and OTHERS   Pursuers;   against   SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS   Defender:   ________________

 

Pursuer:  Lloyd;  Shields, Solicitor Advocate;  Thompsons

Defender:  McGregor;  Simpson & Marwick WS

 

5 August 2014

 

Introduction

[1]        This personal injury action came before me for proof.  Mr Lloyd, Advocate appeared for the pursuers and Mr McGregor, Advocate appeared for the defender.  Liability was not in dispute.  Evidence and submissions were accordingly confined to the issue of quantum of damages to be awarded to the first and third to sixth pursuers as individuals.  Each of these pursuers was an adult child of John McGhee McCarn (“the deceased”). 

 

Background

[2]        The deceased was born on 28 August 1940, and died on 24 November 2009 aged 69 years.  It was a matter of admission that he died from mesothelioma, which resulted from his asbestos exposure in the course of his employment with Scotts Shipbuilding and Engineering Company Ltd.  The defender is responsible for the rights and responsibilities of the former British Shipbuilders in respect of said employment.

[3]        The first and third to sixth pursuers are as follows:

(a)        Joseph Bernard McCarn, son of the deceased, born 1 January 1969, aged 45 and aged 40 at the time of death of the deceased;

(b)        Paul Martin McCarn born on 1 June 1971, son of the deceased, aged 42 and aged 38 at the time of death of the deceased;

(c)        Robert John Mary McCarn, son of the deceased, who was born on 17 September 1972, aged 41 and who was aged 37 at the time of death of the deceased;

(d)        Stephen John McCarn, son of the deceased, born on 2 September 1973, aged 40, who was aged 36 at the time of death of the deceased;  and

(e)        Catherine McCarn, daughter of the deceased, who was born on 13 November 1978, who was aged 35 years and aged 31 at the date of death of the deceased.

 

Evidence

[4]        Each pursuer was led in evidence and in the course thereof each of them spoke to matters relevant to their various claims in terms of section 4(3)(b) of the Damages (Scotland) Act 2011.  There was no cross-examination of these witnesses.

[5]        In the pursuers’ written submissions, the pursuers’ counsel sought to summarise the evidence of the pursuers.  His summary of their evidence was not challenged on behalf of the defender and it is perhaps convenient at this stage if I set out the summary of this evidence:

“the evidence showed the McCarn family to be a very close and loving family, of which the deceased was the patriarch.  Each pursuer spoke of their ties of mutual love and affection with the deceased, and how closely involved he was in their lives.  With the exception of the fifth pursuer, who lives in Australia, each of them lives close to the family home in Dublin.      

 

It should be said, at this point, that, despite the distance, the fifth pursuer maintained a close contact with his father.  He kept in contact via Skype, and by telephone.  The deceased had been to Australia on more than one occasion, and the fifth pursuer, had it not been for the deceased’s death, would have brought his family back to Ireland for holidays.

 

Each of the pursuers produced a statement, which they spoke to in evidence. 

 

It is submitted that it was a factor of some importance that the pursuers’ mother had died in 1998, and that she died from cancer.  Each of the pursuers was of adult age in 1998, and was aware of the suffering she endured before her death.  That being the position, it was all the more difficult for them to see the decline of their father, particularly when the evidence was that he had been, pre-diagnosis, a very fit man, especially for his age.

 

Further, following the death of the pursuers’ mother in 1998, the deceased played a bigger part in the lives of his children.  From that time on, he was their sole parent, and his loss, on that account, was, perhaps, even more devastating.

 

…

 

So far as section 4(3)(b)(i) is concerned, the court heard evidence from all of the pursuers about their involvement with the deceased after diagnosis, and during his period of decline.  They spoke about the impact upon them. 

 

The grief and sorrow of the pursuers was obvious in the giving of their evidence. 

 

In relation to the ‘non-patrimonial’ loss suffered, the relationship of all pursuers was very close, and would have continued in that vein.  The deceased was a man for whom family was very important.  He played a big part in the lives of his grandchildren, much to the obvious pleasure of the pursuers, for whom the loss of that involvement, was of particular importance, and a source of regret.  He was and would have remained a source of advice.

 

(the court) heard from the sixth pursuer, how much she regrets that her son will never meet his grandfather.  She is getting married in August, and she spoke of how she regrets that her father will not be there to give her away.  Her relationship with the deceased was, if any, closest, perhaps just because, when he died, she was not in a relationship, and it seemed as though he was, in a way, the man in her life.  She spoke of her father with obvious emotion, and was quite tearful.

 

Her brothers were, also, obviously close to their father, but they were less open in displaying their emotions, though it will be recalled that the fourth pursuer did become quite upset, when we were discussing his father’s reaction to being given his diagnosis.  The first and third pursuers were, more in control, but any differences in that regard are really of no importance.  That simply reflects how each pursuer dealt with, and is dealing with, his or her grief in different ways.”

 

[6]        In addition to the evidence of the pursuers there was a joint minute in which it was agreed that the medical report from Dr Semple, consultant physician, no 6/1 of process, was agreed as being accurate in respect of the medical history of the deceased before his death, and as equivalent to the oral evidence of its author.  From that report it could be seen that there was a period of about 1 year from the diagnosis of the deceased’s condition, until his death.  During that time, the deceased declined in health, as witnessed by the various pursuers. 

[7]        Further it was agreed that, but for his mesothelioma, the deceased would have lived for a further 18 years.  It was not contentious that all three elements of section 4(3)(b) of the 2011 Act were engaged. 

 

The legislative framework for the various claims

[8]        All of the claims were founded on section 4(3)(b) of the 2011 Act which is in the following terms:

“4.       Sums of damages payable to relatives

 

(1)        B is liable under this subsection to pay –

 

(a)        to any relative of A who is a member of A’s immediate family, such sums of damages as are mentioned in paragraphs (a) and (b) of subsection (3),

 

(3)        The sums of damages are –

 

(b)        such sum, if any, as the court thinks just by way of compensation for all or any of the following –

 

(i)         distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death,

 

(ii)        grief and sorrow of the relative caused by A’s death,

 

(iii)       the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.”

 

The issue

[9]        The matter in dispute between the parties was this:  what was the proper approach to the quantification of the various pursuers claims?

 

Submissions on behalf of the pursuers

[10]      Counsel commenced his submissions by putting forward two propositions:

(a)        Where (as here) all three elements of section 4(3)(b) are engaged, the award of damages should be higher, other things being equal, than in a case where section 4(3)(b)(i) is not present.

(b)        Where the relationship between relatives would have subsisted over a longer period, in comparison to a different case, all other things being equal, the award of damages should be higher.

In developing his argument in support of those propositions he contended that the starting point when considering damages in a fatal case was Hamilton v Ferguson Transport (Spean Bridge) Ltd;  Thomson v Dennis Thomson Builders Ltd 2012 SLT 715. 

[11]      It was counsel’s position that the effect of the decision in the case of Hamilton was this:  that judges are now required to make awards which are significantly higher than would have been the case, beforehand.  That follows he submitted, as a matter of generality, from the Lord President’s criticism of the awards in Bellingham v Todd 2011 SLT 1124 and Wolff v John Moulds (Kilmarnock) Ltd 2012 SLT 231, as being “markedly undervalued”.  That criticism in respect of the awards to the adult children in Wolff, he submitted was of particular relevance in this case, because, in respect of the facts in Wolff, it was a very similar case.  In Wolff, the deceased had died of mesothelioma, aged 67.  His life expectancy was said to be 17 years.  Counsel went on to submit that the point of the decision in Hamilton was that it sought to address the gulf, which the court had observed, and commented upon, in Shaher v British Aerospace Flying College Ltd 2003 SC 540, between judge and jury awards.  The means by which that gulf was to be bridged, was by judges giving greater weight to jury awards.  That was an exhortation which had been given before, but the difference, in Hamilton, was that the court set out a means by which it was hoped that the gulf would, over time, be bridged, namely:  the introduction of “guidance” to juries, a substitution for the prior embargo on information being given as to the level of judge awards.  In this way, what were two parallel systems would be made to come into contact.  These submissions were made under reference to the opinion of the Lord President in the Hamilton case at paragraphs 58 to 63;  70 to 71 and 72. 

[12]      From the foregoing counsel submitted that the Hamilton case, therefore, meant two things:

(a)        Awards in fatal cases must be significantly increased from before;  and

(b)        Particular attention must be given to jury awards, where guidance had been given.

The previous practice of treating a single jury award with caution, and instead, waiting for a “pattern” to emerge should no longer be followed.  That is so, because, otherwise, the court would not be according proper weight to the jury’s award, and would defeat the object of the exercise in establishing the new system of guidance.

[13]      Mr Lloyd directed my attention to Currie v Esure Services Ltd 2014 CSOH 34.  In this case the Lord Ordinary made certain obiter comments, which he accepted could be interpreted as being at odds with the second point which he had taken from the Hamitlon case, insofar as it may be suggested that a judge had to await a “pattern” before attaching weight to a jury award (see:  paragraph 30).  He submitted that if that was the correct interpretation of this passage in the Lord Ordinary’s opinion, the Lord Ordinary was wrong and I should not follow that approach.  It was his position that that approach was inconsistent with that set out in Hamilton at paragraph 63. 

[14]      Having examined the legal landscape it was his position that the starting point in valuing the various claims was the jury awards made in Kelly v UCS unreported 29 July 2012.  Kelly was also a mesothelioma case.  In that case, the deceased was 82 when he died.  It was understood that he was not in good health, generally, for reasons unconnected with his mesothelioma, but, in any event, it was a matter of agreement, between parties, that his life expectancy was only 4 years from the date of death.  It was understood that the deceased’s daughter was 41 at death, and 45 at the date of trial.  His son was about 2 years older.  They were each awarded £25,000.  Kelly was decided on 29 July 2012.  Indexed to January 2014 the awards would now be worth £26,000.  The ages of the adult children pursuers in Kelly were slightly older than in the present case, but, broadly comparable.  The main difference in the two cases was that the life expectancy of the deceased in Kelly was markedly lower than in the present case being 4 years compared to 18 years.

[15]      His position therefore was this:  having regard to Kelly, which was as the Lord President had stated in the Hamilton case, “a valuable source for assessment in future cases”, then the awards which should be made in the present case would require to be significantly greater than the £26,000 awarded in Kelly.  This must be the case he submitted given the significant difference in the life expectancy.

[16]      He conceded that the case of Wolff on its facts was perhaps closer to those in the instant case than Kelly.  However, he contended that it should not be taken as a starting point.  In support of that position he argued this:  it was obvious, he submitted, that the actual awards of £15,000 and £18,000 were no guide, being “markedly under value”.  Albeit that that was the situation, it may be thought that this deficit could be corrected by a process of “uplifting” as had been done in the recent cases of McGee v RJK Building Services Ltd 2013 SLT 48, Ryder, and Currie v Esure Services Ltd.  However, it was his position that there were problems with that approach, which, he submitted, meant that it could not be, in this case at least, the primary approach, though it may be used as a cross-check. 

[17]      Wolff was decided on 29 September 2011.  Indexing the awards to January 2014, they would now be worth £15,900 to £19,080.  If those index figures were then uplifted by about 50% the appropriate awards, in this case would fall in the range £23,850 to £28,620.  This approach was followed in McGee for the son though not the daughters and in Currie. 

[18]      In Ryder the uplift would have been 60% in a case involving the loss of a parent who was aged 36 at the time of death, by a son who was aged 17 at the time and 21 at proof.  The award would have been £40,000, based upon the award in Bellingham of £25,000.

[19]      He submitted that neither Bellingham nor Ryder were cases similar on the facts, first because the deceased in those cases was much younger, and secondly they were “sudden death” cases where section 4(3)(b)(i) was not engaged, as it was in Wolff and Kelly.  Thus these cases could not provide the court with any base figure.  They were referred to only for the process of uplifting pre-Hamilton cases.

[20]      He went on to submit that McGee was perhaps something of a hybrid.  It was significant because it was the first judicial award, post-Hamilton and, therefore, had set the tone for what followed in the more recent cases.  In McGee, the deceased was 71 when he died.  He fell downstairs and was injured resulting in death, from cardiac arrest, two days later.  Two things counsel submitted should be noted about this case:  one, the deceased in McGee was of comparable age to the deceased and secondly section 4(3)(b)(i) must have been engaged, because the deceased survived for two days, and there was an agreed award of £4,000 for transmissible solatium.  That said, McGee was, still, very different from a mesothelioma case, where the relevant period of suffering was much greater and the impact upon the relatives correspondingly so.

[21]      It was his position that these cases were mentioned in the context of the submission that the uplift exercise was, necessarily, an indirect one.  The object of the exercise was for judges to take account of jury awards, and give them greater weight.  Any uplift was really a judicial approximation of what a reasonable jury might do, confronted with the same facts.  If that was so, then, it was submitted it was an approach which had less to commend it than a direct comparison with a real jury award in a case which was similar on the facts.

[22]      Lastly he submitted that although Wolff had greater similarity, on the facts, than Kelly, an uplift approach had greater artificiality.  Secondly the direct approach better achieved the objective of Hamilton because the original figures in Wolff, though said to be uprated for jury awards, did not give enough weight, and it was thus difficult to conceive that the Lord Ordinary would not have chosen much higher figures had he had the benefit of knowing what was awarded in Kelly de-indexed to September 2011 which was £24,558. 

[23]      It was his position that the result of the comparison was that Kelly de-indexed represented an uplift of 63.7% over the lower award in Wolff, not dissimilar to the 60% uplift in Ryder.  But Kelly was a case which, on any view, was not as bad as the present case, and that he submitted meant any uplift approach would have to be considerably higher to reflect the difference in life expectancy.

[24]      Counsel then sought to put forward an alternative position on the basis that the court was persuaded that Wolff was the appropriate starting point.  It was his position that using the indexed award and uplifted that gave a range of £23,850 to £28,620 (plus 50%) or £25,440 to £30,528 (plus 60%).

[25]      The indexed awards in Kelly were £26,000.  If Kelly was taken into account, in any real way, the awards in the present case must be higher, and considerably higher, than £26,000 because it was inconceivable that the jury would not have awarded a much higher figure, if the deceased had 18 years to live instead of 4.  Were McGee to be looked at, the awards ranged from £27,500 to the son to £35,000 to the daughters.  Indexed to January 2014 those awards would be £28,259 to £35,966, but, in McGee, the Lord Ordinary proceeded on the basis that the deceased had a life expectancy of 12 years, compared to 18 years in the present case, and, as already noted it was not a mesothelioma case.  Those facts were reason for uplifting the McGee awards.

[26]      In summary the submission for the pursuers was that the court should make an award of £35,000 to each of the pursuers.  That figure was £9,000 higher than Kelly following indexation, which he submitted satisfied the demands for a significant increase above that case.  Moreover the figure of £35,000 was the figure awarded to the two daughters in McGee.  Arguably the pursuers in this case had the same or similar degree of closeness in their relationship with their father as did the two daughters in McGee.  Certainly, on the evidence it would be closer than that of the son in McGee.  But in any event, the present case had features which would justify a higher figure than McGee, and if the court were not satisfied that the present case had the relevant features of McGee, the increased life expectancy and the greater element for section 4(3)(b)(i) would, he submitted bridge any gap. 

 

The reply on behalf of the defender

[27]      Mr McGregor commenced his submissions by asserting that there was less between him and Mr Lloyd than first may appear, particularly with respect to the relevance of the case of Kelly.  His position was this:  the figure awarded in Kelly, £25,000, was the appropriate level of award for each of the pursuers in the present case and his core disagreement with the position as advanced on behalf of the pursuers, related to the submission that a larger figure than that awarded in Kelly would be appropriate, based on the difference in life expectancy of the deceased in the two cases. 

[28]      In development of that contention he began by referring to the case of McGee which he advised me, was the most recent important decision concerning the loss of a father, grandfather and husband. 

[29]      In that case the awards made by the Lord Ordinary were as follows:  £80,000 to the widow, £35,000 to each of the daughters, whom it was established had a close relationship with their late father and £27,500 for a son whose relationship had not been so close.  An award of £20,000 was made to a granddaughter to reflect the close nature of the relationship with the deceased, £25,000 for a grandson where the deceased had been the main adult figure in his life and £12,000 for two older granddaughters where it was said that no special factors applied. 

[30]      He then directed me to where in the course of the opinion, the Lord Ordinary had referred to the jury decision in Kelly v UCS.  At page 437E under reference to the submissions on behalf of the pursuer, the Lord Ordinary explained that:

“she also drew attention to a recent jury award in Kelly v Upper Clyde Shipbuilders Ltd 29 July 2012, where, in respect of the death of an 82 year old man from mesothelioma, £40,000 was awarded to the widow, £25,000 to each of the adult children (whose ages are not known), £8,000 to a grandchild aged 18, £4,000 to a grandchild aged 11 and £1,500 to a grandchild aged 5.  She submitted that those awards were lower than recent judicial awards.  I am not convinced that that is so;  at 82, the deceased in Kelly was markedly older than the deceased in Wolff, who was aged 67, and that is bound to have had an effect on the award.”

 

[31]      With respect to the above observations of the Lord Ordinary it was Mr McGregor’s position that the Lord Ordinary was wrong to dismiss the application or relevance of the jury decision in Kelly simply on the basis of the age of the deceased.  In the first place, he submitted that it was not clear how it could be said that the age of the deceased in Kelly was “bound” to have had an effect on the awards.  Mr McGregor argued that it was unclear whether the Lord Ordinary had been referred to Murray’s Executrix v Greenock Dockyard Co Ltd 2004 SLT 1104 and McLean v William Denny and Bros. Ltd 2004 SC 656 (they were not referred to in the Lord Ordinary’s opinion).  It was Mr McGregor’s position that these cases were of some significance in that they provided a basis for his core submission that, at the range of ages which might be described as old age, it was not appropriate to begin a comparison based on the age of the deceased and to dismiss the relevance of an award on that basis alone.

[32]      This was the basis upon which he was arguing that the approach of Mr Lloyd:  that the court in this case should award a higher figure than was awarded in Kelly because of the difference in life expectancies in the two cases was a flawed approach.

[33]      Mr McGregor went on to look in some detail at the Murray’s Executrix case and submitted as follows:  In Murray’s Executrix, the Lord Ordinary awarded the widow of a man who died from mesothelioma at age 63 the sum of £20,000.  The pursuers reclaimed and the reclaiming motion was heard immediately following another reclaiming motion in the case of McLean in which the Lord Ordinary had awarded the widow £28,000 in respect of her section 1(4) claim.  In the summary of the case report at page 1104J in Murray’s Executrix, it is reported that the First Division held that the sum of £20,000 awarded to the widow was too low and that an award of £28,000 would be more appropriate “it having been unnecessary to distinguish between her and the widow in McLean”.  Mr McGregor drew my attention to the age of the deceased who was 63 years old at the date of death.  The Division (in Murray’s Exec) did not simply advise that a comparison was “unnecessary”.  At page 1107B, the Lord President stated that “We do not consider that it is either necessary or appropriate to draw any distinction between her and the widow in McLean.”  He submitted that it was not appropriate to draw such a distinction based on age.  The reason for not doing so was perhaps elucidated in the Opinion of the Court in McLean also delivered by the Lord President.  At page 661 para 19, one of the submissions of the defenders and reclaimers was recorded as “the Lord Ordinary had failed to take into account the fact that the deceased had died at the age of 75, and hence would have had a relatively limited life expectancy”.  The First Division rejected this argument at para 20, advising that the Lord Ordinary was “well entitled to regard the life expectancy of the deceased as counterbalanced by the strength of the relationship between him and the first pursuer which was founded on a long and happy marriage.”  Mr McGregor on the basis of the above went on to submit this:  such is the difference in ages between the deceased in the present case and in Kelly that it should make no difference to any award;  not only was it unnecessary to distinguish between the widows in McLean and Murray’s Executor but more significantly, the court held that it was not appropriate to do so.

[34]      Against that legal landscape Mr McGregor submitted that this court was entitled to consider the relevance or otherwise of the decision of the jury in Kelly.  The relevancy he submitted lay in the nature of the case, namely:  that it was a claim by relatives in respect of their section 1(4) claims following the death of the late Mr Kelly at the age of 82 from mesothelioma.  This was the first jury trial following the recommendations made by the First Division in Hamilton v Ferguson Transport.  The jury was addressed by the Lord Ordinary as to the range of awards that the jury might make albeit highlighting that they were not bound necessarily to make awards within that range.  The jury in Kelly ultimately awarded the adult children £25,000, the widow was awarded £40,000 and the two teenage grandchildren were awarded £8,000 each and two younger grandchildren who were aged 4 and 2 at the date of death, the sum of £1,500 each.

[35]      Counsel then turned to refer to the most recent opinion issued by a Lord Ordinary in a fatal case namely Currie v Esure Services Ltd.  This was a case involving claims by the father, mother and older brother of the deceased who was 25 years old when he was struck by a car and killed.  At paragraph 29 the Lord Ordinary referred to the concerns expressed by the Extra Division in Shaher v British Airspace Flying College that the court must be guarded in relation to any single jury award, expressing the view that “it is really only a pattern of apparently similar jury awards that will be of direct assistance.”  The Lord Ordinary appeared to have discounted the influence or value of the decision of the jury in Kelly for these reasons: 

“The present case is being decided during the process that the dicta above describes as one that will take time and experience to mature.  There has to date been only one publicised jury award, (Kelly v UCS Limited) since the decision in Hamilton v Ferguson Transport.  That is clearly insufficient to provide any pattern under the new system of juries being given judicial guidance as to be of direct assistance.” (paragraph 30).

 

He pointed out that the Lord Ordinary did however determine that the starting point for determining an appropriate award was to consider judicial awards.  The reason for this was “the absence of any relevant recent jury awards where the jury had the benefit of judicial guidance.”  (paragraph 33).   Mr McGregor submitted that in the present action involving mesothelioma and the death of a father the case of Kelly cannot of course be said to provide a pattern.  However, it was his position that it did provide a starting point and moreover it provided an end point in determining what amounted to reasonable compensation for these pursuers under the statutory scheme. 

[36]      Finally he turned to the opinion of the Lord President in Hamilton v Ferguson Transport and referred to his observations at page 732F-I:

“[62]    In McLean v William Denny & Bros Ltd (a reclaiming motion from the Lord Ordinary) the court, of which I was a member, made certain obiter observations at paras [29] and following.  These included noting at para [32] what Lord Hope had said in Girvan at page 17 where he “drew no distinction between awards by judges and those made by juries”.  The court went on to say:

“We may say that we did not understand counsel for the first pursuer to advance the view that any greater weight should be attached to an award by a jury per se than that attached to a judicial award.”

 

The objective and how it may be achieved.

 

[63]      That concession, which I do not understand the court in McLean to have doubted, requires, in my view, some comment.  If greater regard than hitherto is not had by judges (at first instance or in the Inner House) to jury awards, then the disparity between judicial and jury awards is likely to remain – a state of affairs which “lacks the consistency which is one of the hallmarks of a mature system” (McLeod v British Railways Board, at para [17]).  The objective must now be to seek to narrow that disparity and to eliminate, in so far as practical, that lack of consistency.  That can be done by three measures:  first, by judges, sitting alone or in the Inner House, having significantly more regard to available jury awards (particularly where they demonstrate a pattern);  secondly, by juries being given by the presiding judge fuller guidance than hitherto as to the level of damages which, consistently with other cases, might reasonably be awarded by them;  and, thirdly, by appellate courts continuing to intervene, where necessary, on comparative justice grounds as envisaged under statute since 1815.  This is a process which will take time and experience to mature.  As to the first element, proof as well as jury trial has been a competent mode of inquiry in personal injury actions since 1866 (Evidence (Scotland) Act 1866, section 4).  There is no reason to suppose that Parliament intended that awards by juries should have priority over awards by judges – or vice versa.  Judicial and jury awards give different but complementary guidance for what is a just award of damages (see para [44] above).  In an age when life may be thought to be more precious than it may have been thought to be by earlier generations, and where consequentially the loss of the life of a close relative may seem a greater loss than it might have seemed earlier, the input of jury awards, reflective of the views of the community, may, in death cases, be particularly important.  While awards made by juries without the benefit of judicial guidance may be at greater risk of being arbitrary or of having been influenced by illegitimate factors, those made with that (non-prescriptive) benefit are likely to be a valuable source for assessment in future cases.”

 

On the basis of all of the foregoing he in conclusion submitted that the awards to the adult children in Kelly were a significant increase in the awards of £15,000 and £18,000 made in Wolff.  Those awards were made with the benefit of judicial guidance and were in his submission as such a valuable source as anticipated by the Lord President.  It was his position that, just as with the widows in McLean and Murray’s Executrix, it was not appropriate to compare and distinguish between children who suffer loss in similar circumstances.  Likewise, it was an artificial exercise to apply an RPI factor to the £25,000 awarded in Kelly.  It was his position that the £25,000 was the round figure sum which a jury may well award today.  Interest would of course require to be applied to the sum on the basis of one half to the past at 4%.  For these reasons in his submission, the awards to the children should be the same as those awarded in Kelly.

 

Discussion

[37]      The issue before me is a narrow one in that both parties accepted that the starting point in assessing in terms of section 4(3)(b) of the 2011 Act what is just by way of compensation for the distress and anxiety endured by the pursuers in contemplation of the suffering of the deceased before his death, the grief and sorrow of the pursuers caused by the death and the loss of such non-patrimonial benefit as the pursuers might have been expected to derive from the deceased’s society and guidance if he had not died, is the awards made in the Kelly case. 

[38]      I am, without difficulty persuaded, having regard to the guidance given in Hamilton, that the proper approach in making the assessment of the awards is to take as a starting point the awards in Kelly.  The awards therein are clearly a valuable source for assessment of the awards to be made in the present case. 

[39]      I would respectfully disagree with the obiter comments made by the Lord Ordinary in Currie v Esure to which my attention was directed.  I do not accept that a judge post Hamilton has to await a pattern being formed in jury awards before attaching weight to a jury award. 

[40]      Against the background of the foregoing agreement as to the starting point the issue before me is this:  are the awards in Kelly both a starting point and an end point?

[41]      The pursuers’ argument in its essentials was this:  the deceased in the present case, would have lived for 18 years but for contracting mesothelioma and not 4 years as in the Kelly case.  Thus it was argued by Mr Lloyd that the pursuers in the present case, all other things being equal should receive materially greater awards than those made in Kelly.  The defenders position in summary was this:  the difference in the figures for life expectancy in the two cases was of no significance in the assessment of damages in terms of section 4(3)(b) of the 2011 Act. 

[42]      I am persuaded that the difference in life expectancy is a significant factor in the assessment of damages in terms of section 4(3)(b) of the 2011 Act.  I accept the core proposition advanced on behalf of the pursuers:  where the relationship between the pursuer and the deceased would have subsisted over a materially longer period, in comparison to a different case, the award of damages should be higher, other things being equal.

[43]      In terms of section 4(3)(b) the award to be made by the court is that which the court believes is: 

“just to compensate for all or any of the following:

 

“(i)       distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death.”

 

[44]      With respect to the above element the issue of life expectancy has no relevance. 

[45]      The next element to be compensated is:  “Grief and sorrow of the relative caused by A’s death.” 

[46]      It appears to me with respect to the above factor that the issue of the life expectancy of the deceased may have a relatively minor effect on grief and suffering.  However, in assessing an award under this head it does not appear to me that life expectancy has any real significance.

[47]      Turning to the third element which is to be compensated it is this: 

“(iii)     The loss of such non-patrimonial benefit as the relative might have been expected to derive from the society and guidance if A had not died.”

 

[48]      In assessing what is the appropriate measure of compensation in terms of this paragraph I am clearly of the opinion that a very material consideration must be the length of time for which the claimant has been denied the society and guidance of the deceased.  I am persuaded that the greater the period of life expectancy of the deceased, the higher the sum which it would be just to award a claimant to compensate for the loss of society and guidance. 

[49]      Thus I am satisfied that where (a) all three elements of section 4(3)(b) are engaged as they were in Kelly and in the present case;  (b) there are no exceptional circumstances in terms of paragraphs (i) and (ii) in the two cases being considered, as in Kelly and the present cases and thus the two cases are broadly comparable in terms of these two paragraphs;  and (c) there is a material difference in the life expectancy of the deceased, 4 years in Kelly and 18 years in the present case and no other exceptional factors regarding society and guidance were present as in Kelly and in the case before me, a higher award should be made in the case before me than in Kelly.  This higher award is necessary in order to compensate the pursuers for the greater length of time that they have been deprived of the deceased’s society and guidance. 

[50]      In my opinion if the difference in life expectancy between Kelly and the case before me had been much smaller ie between 2 to 4 years I would not have concluded that a higher award should necessarily be made to the pursuers in the case before me to compensate for the loss under paragraph (iii), however, I believe that a difference of 14 years is a highly significant difference justifying holding that there should be a materially higher award. 

[51]      In the approach of counsel for the defender I do not believe that he has had proper regard to the terms of paragraph (iii) of section 4(3)(b).  I am unable to construe that paragraph in any way which would justify not taking into account the life expectancy of the deceased when assessing compensation in terms thereof.  It appears to me to say that the loss of 18 years of society and guidance should be compensated at the same level as the loss of 4 years society and guidance would not properly reflect the language of paragraph (iii) and would in fact run contrary to a proper construction of paragraph (iii).

[52]      I am satisfied that there is nothing in the decisions in Murray’s Executrix and McLean upon which Mr McGregor relied to cause me to believe that it is unnecessary to distinguish between the award in Kelly and the award to be made in the present case.

[53]      In McLean the following argument was put forward on behalf of the reclaimers:

“[19]    ….The Lord Ordinary had failed to take into account the fact that the deceased had died at the age of 75, and hence would have had a relatively limited life expectancy.”

 

[54]      With respect to the above argument the court said this:

“We do not consider that consideration of the age of the deceased demonstrates the Lord Ordinary was in error as a matter of law.  He was well entitled to regard the life expectancy of the deceased as counterbalanced by the strength of the relationship between him and the first pursuer, which was founded on a long and happy marriage.” (see:  paragraph 20)

 

[55]      It appears to me that in the said observations the court is saying no more than this:  an award in a case involving a deceased with limited life expectancy may be the same as in the case of a deceased with a materially greater life expectancy where a counterbalancing factor exists, as there did in that case, namely:  the strength of the relationship between the deceased and the first pursuer.

[56]      The submission, on behalf of the pursuers in the instant case is that the cases of Kelly and the present one are in all respects in terms of paragraphs (i), (ii), (iii) broadly similar, with one material difference, namely the question of life expectancy. 

[57]      From the foregoing it appears to me that there is no counterbalancing factor when considering the cases of Kelly and the present case which would entitle me to consider that the award in Kelly was an appropriate one to make in the instant case.  Rather the situation is that there is a materially significant difference between the two cases namely life expectancy.  I am persuaded that the foregoing difference must be compensated.

[58]      For the foregoing reasons I am persuaded that the two cases to which I was referred by Mr McGregor are of no assistance in furthering his argument.

[59]      Finally I find some support for the view that I have reached as to how I should approach the awards in the Kelly case in the observations of the Lord Ordinary in McGee v RJK Builders Services Ltd to which I was directed by Mr McGregor (although of course he did not accept these observations).

[60]      In the whole circumstances and for the above reasons I conclude that Mr Lloyd’s submissions should be preferred to those made by Mr McGregor.

[61]      I have concluded that in the whole circumstances a significant increase over the awards in Kelly is reasonable and appropriate in the present case.  Having considered the whole circumstances I believe the figure put forward on behalf of the pursuers is just by way of compensation, namely:  £35,000 for each pursuer.  I have also found of some assistance in arriving at my view on the appropriate awards in the present case in the awards in the case of McGee.

[62]      In relation to each pursuer I would ascribe one half of the award to the past and apply interest thereon at the rate of 4% per annum, giving a figure for interest to date in relation to each pursuer’s claim of £3,270. 

[63]      I have reserved all questions of expenses as I was not addressed on this.

 

Decision

[64]      For the above reasons I would award each pursuer the sum of £35,000 and I would ascribe one half of the said award to the past and one half to the future and would apply interest at the rate of 4% per annum, giving a figure for interest to date for each pursuer of £3,270.