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PD325/16
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 126
OPINION OF LORD CLARKE
In the cause
GEORGE EDWARD MANSON AND OTHERS
against
HENRY ROBB LTD
Pursuers: Milligan QC, Wilson Digby Brown LLP
Defenders: Sheldon QC; Clyde & Co (Scotland) LLP
Pursuers
Defenders
3 October 2017
[1] This is an action brought by the first and second named pursuers as executors
nominate for the late George Aberdeen Manson (hereinafter referred to as “the deceased”).
The first and second named pursuers, who were the sons of the deceased, also sue as
individuals. The third named pursuer is the widow of the deceased.
[2] The pursuers sue for damages in respect of the death of the deceased on 12 February
2016, the cause of death being recorded as epithelioid mesothelioma of the pleura. The
deceased had been for some years, in the past, employed by the defenders. They admitted
liability for his death as arising from the deceased’s employment with the defenders, due to
his exposure to asbestos dust and particles.
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[3] The case came before me for a Proof on quantum. At the outset of the Proof, counsel
advised me that agreement had been arrived at between the parties in respect of certain
matters. In the first place, they were agreed that, in terms of an offer on behalf of the first
and second pursuers, No 17 of process, and the acceptance thereof No 24 of process, the
defenders shall pay £90,000, inclusive of interest to date and gross of the payment of £13,455
payable under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 in satisfaction of
the first conclusion of the Summons which represents the sum due in respect of solatium
and past services in terms of section 8 of the Administration of Justice Act 1982, on behalf of
the deceased. I shall, in due course, pronounce decree for that sum.
[4] In terms of a Minute of Agreement between the parties (No 25 of process) it is,
agreed at paragraph 18 thereof that the sum to be paid to the third pursuer by way of
compensation for loss of financial support in terms of section 4(3)(a) of the Damages
(Scotland) Act 2011 is £89,480.31 inclusive of interest on any past element to 11 July 2017. In
terms of paragraph 19 of the said Joint Minute it is also agreed that the sum to be paid to the
third pursuer by way of reasonable expenses incurred in connection with the deceased’s
funeral should be £3,698.69 inclusive of interest until 11 July 2017. I shall, in due course,
pronounce decree in respect of the foregoing sums
[5] The deceased and the third named pursuer were married in 1957 and lived together
until the deceased’s death. The first and second named pursuers lived all their lives in the
same home with the deceased and their mother until the death of the deceased. All of the
pursuers gave evidence, which I accepted, to the effect that they formed a very close family
unit prior to the deceased’s death. The first named pursuer, who is 59 years old; told the
court that he and his brother, the second named pursuer, own the home which they had
shared with the deceased and his mother for 25 years. Before the diagnosis of the deceased’s
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fatal condition, in July 2015, the deceased had, the witness said, been a very fit and active
person. He had worked full-time until he was 72 years of age, working a six day week and
commuting to London every day, a journey of about one hour each way. His final
employment had been as a director in a large company which made satellite dishes. He had
been in that employment for 15 or 16 years.
[6] After the deceased retired he remained very active. He and the third named pursuer
would go out most days together. He did shopping on behalf of the family and dealt with
the family’s domestic financial matters. On a number of occasions in his evidence this
witness referred to the deceased as “our solid rock”.
[7] As regards his own relationship with the deceased, the witness said that the
deceased was someone for him to look up to, whose example he wished to follow and who
was always there for him. He would see the deceased every day.
[8] The deceased cared for the third named pursuer, taking her to the doctor, for
example, when required, and he did gardening and general household duties.
[9] When the deceased was diagnosed with his fatal condition in July 2015, the family
were informed that the deceased would be likely to live for only a few months. In the event,
the deceased survived for about ten months but his condition deteriorated rapidly and
within two months of diagnosis he could not really help himself. The third named pursuer
became his virtual full-time carer. The deceased lost a considerable amount of weight and
became steadily weaker. He required to be admitted to hospital where he died. Although
his family had been warned that the deceased was going to die, his death itself came as a
great shock to all of them. It had particularly affected the third named pursuer. She had
become withdrawn since it and did not like to go out too much.
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[10] The third named pursuer, who is 79 years old, in evidence, confirmed that she and
the deceased married in 1957 and had had two children, the first and second named
pursuers. They were born in Dalkeith but the family had moved to England in 1972 for
work reasons. She and the deceased had had a very close relationship. The witness said
that they went everywhere together. The deceased did most of the work required in the
house and looked after the garden. He would do shopping and also cook meals for the
family. He took responsibility for payment of household bills. These matters were now
attended to by her two sons. The witness said that the deceased’s death had affected her
“awfully”. She had depended on him so much.
[11] In his evidence to the court, the second named pursuer, who is 55 years old,
confirmed that, prior to the diagnosis of his fatal illness, the deceased had been a very fit
man and had done the shopping together with the third named pursuer. The witness had a
common interest with the deceased in model railways and this involved both of them
travelling to exhibitions of model railways, going as far as Germany for that purpose. The
family, the witness said, always did things together “as a group”. Although his father was
not a great gardener he persevered with it with some help from the third named pursuer.
The deceased would do household chores such as hoovering and shopping. On occasions
the deceased would do some cooking, particularly when the third named pursuer was not
well.
[12] This witness explained that he did not drive, whereas his father did. This witness
spoke in a similar vein to that of the evidence of the other witnesses in respect of the
deceased’s rapid and distressing decline after the diagnosis of his fatal illness. The
deceased’s death had seriously affected the third named pursuer. He and his brother had
tried to fill the gap left by the deceased’s death but it was difficult to do so.
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[13] The defenders led no witnesses.
[14] The other evidence which I was invited to consider by both parties, in terms of their
Joint Minute, was a report prepared by Dr P T Reid MD FRCP Consultant Physician, No 6/8
of process. Dr Reid, at the outset of his report explained that he was instructed to provide a
medical report on the late Mr Manson’s death due to mesothelioma and his life expectancy,
but for the development of this condition. For those purposes he had been provided with
medical records pertaining to the deceased and certain correspondence from medical
persons relating to the deceased. Dr Reid’s report is clearly a very careful and thorough
consideration of the deceased’s medical history. He notes at page 13 of his report under the
heading “Non asbestos-related conditions” as follows:
“Mr Manson suffered from diabetes mellitus from around 2009, which was
complicated by retinopathy and impaired circulation to the feet. He was also obese
with a body mass index consistently in the high thirties or low forties (ie he was
consistently at the upper end of the class 2 or lower end of the class 3 range). He had
hypertension, which was mostly adequately controlled with antihypertensive
medication. He had osteoarthritis of the hip and back, a kyphosis, benign prostatic
disease and benign colonic polyps”
At page 15 of the report Dr Reid reports under the heading “Cause of Death”:
“His terminal admission was prompted by hypercalcaemia, which is a recognised
complication of malignant pleural mesothelioma. The records from the terminal
admission are not available. However, information provided in the statement from
Janice Harris provides information regarding this period. In my opinion
Mr Manson’s (sic) died as a result of malignant epithelioid mesothelioma.”
Dr Reid then concludes under the heading “Anticipated Life Expectancy in the Absence of
Mesothelioma”:
“Mr Manson died at the age of 81 and 1 month. The average survival of an 81 year
old man is around 8.8 years (Ogden Tables 7th edition). As he never smoked I would
increase this by around 2 years. However informed by information in
Brackenridge’s Medical Selection of Life Risks I would reduce this by 5 years on
account of diabetes complicated by retinopathy, maculopathy, grade 2/3 obesity and
hypertension. Therefore, but for mesothelioma I estimate that Mr Manson would
have lived on average a further 5.8 years.”
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I understood that there was no quarrel between the parties, in relation to Dr Reid’s
conclusions, and, in particular, his assessment of the estimated life expectancy of the
deceased but for the fatal condition and that that would have been a further 5.8 years.
[15] Against the background of that evidence the remaining areas of dispute between the
parties related to the amount of compensation which fell to be paid by the defenders to the
pursuers in terms of section 4(3)(b) of the Damages (Scotland) Act 2011 and what sum fell to
be payable in compensating for the loss of services provided by the deceased under section 9
of the 2011 Act.
[16] I can deal with the second of the two areas of dispute quite shortly. All the witnesses
spoke to the deceased having carried out, to a significant extent, a number of services on
behalf of the family unit, of a domestic nature such as driving, gardening, shopping and the
taking care of household financial matters. The defenders chose not cross-examine any of
the witnesses on this aspect of their evidence. Senior counsel for the pursuers, in his
submissions to the court, submitted that a global figure of £9,000 would be an appropriate
sum to be awarded under this head with £3,000 thereof being allocated to the past
and £6,000 to the future. This, he contended, allowed for some deterioration in the
deceased’s physical abilities as he got older. I am satisfied, in the absence of any evidence to
contradict what the pursuers said in relation to these matters and, having regard to that
evidence, the figure suggested by senior counsel for the pursuers is reasonable and I shall
make an award to the third named pursuer to that effect.
[17] The main substantial dispute between the parties related to the position to be
adopted by the court to the pursuers’ section 4(3)(b) claims, in a case like the present, where
the deceased was at an advanced age at the date of his death, but where the relatives in
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question had lived with him en famille until the date of his death and had formed with him a
particularly close relationship.
[18] Senior counsel for the pursuers, in his submissions, relied, particularly, upon the fact
that all of the pursuers, living as they did with the deceased, witnessed, on a continuing
basis, the suffering the deceased endured during his fatal illness and that his death, it was
submitted, clearly had a devastating effect on all three of the pursuers. It could be taken
from the pursuers’ evidence that they had relied on the deceased, prior to his last illness, to
an extent much more than might be normal in such a case. The defenders would, it was
submitted, no doubt, seek to argue that any awards made in terms of section 4(3)(b) had to
reflect significantly the fact that the deceased was 80 years of age when he died and had
been suffering from various other ailments for some time. But these factors should not
significantly outweigh the extremely close relationship all of the pursuers had with the
deceased.
[19] Senior counsel for the pursuers also submitted that the decision in the case of
Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486 had made clear that the court,
in our system, required to seek to achieve consistency as between jury awards and awards
made judicially in death cases like the present - see Lord President Hamilton at
paragraph 63. To that end, jury awards should not be treated as any less a source of judicial
guidance than previous judicial awards in the assessment of what is the appropriate award
to be made in any particular case. See Lord Clarke at paragraph 86.
[20] The first reported judicial award made, it seems, after the discussion in Hamilton in a
case with some similarities to the present, but which involved claims under the previous
legislative regime in this area namely the Damages (Scotland) Act 1976, was McGee v RJK
Building Services Ltd 2013 SLT 428. In particular the court was concerned with the
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appropriate awards to be made in terms of section 1(4) of that Act to a widow and two adult
daughters of the deceased. The deceased was 71 at the date of his death. His widow was a
few months younger. The deceased and his wife had been married for 36 years. The court
held, on the evidence, that the marriage was a happy one and that the deceased and his wife
enjoyed a rich social life together. The relationship between them was described as being
“in practical terms particularly close”. The court awarded £80,000 to the widow in respect of
her section 1(4) claim. The deceased’s daughters were 44 and 37 respectively at the date of
the deceased’s death. The Lord Ordinary held that they both had enjoyed a close
relationship with the deceased. In both cases their marriages had broken down at a fairly
early stage. That made the presence of the deceased in their lives especially important both
for the daughters and their children. The Lord Ordinary observed at page 437K-L as
follows:
“It was clear that he had provided very considerable support, financially,
emotionally and in a practical sense, to both daughters. This included such matters
as looking after the daughters’ children when their mothers were at work, and taking
them to and from school. Both of the daughters and their families lived close to their
parents, and this meant they saw a great deal more of one another than is perhaps
the norm.”
In the foregoing circumstances the court awarded £35,000 to each of the daughters in respect
of their section 1(4) claim.
[21] In the case of McCarn v Secretary of State for Business Innovation and Skills 2014 Rep
LR 138, five adult children sought damages for loss of society in respects of the death of their
father who had died from mesothelioma at the age of 69. At the time of their father’s death
the children were aged 40, 38, 37, 36 and 31 respectively. The Lord Ordinary accepted that
the deceased had been the pursuers’ sole parent since their mother had died in 1998. There
was a strong emotional bond between the children and the deceased. It was agreed between
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the parties that but for the fatal condition the deceased would have lived for a further
18 years.
[22] At paragraph 48 of his Opinion the Lord Ordinary under reference to
section 4(3)(b)(iii):
“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.”
In the whole circumstances the Lord Ordinary concluded that an appropriate award for each
of the pursuers would be £35,000.
[23] The court in the case of Gallagher v SC Cheadle Hume Ltd 2015 Rep LR 33, another
mesothelioma death case, was required to make awards in respect of the deceased’s widow
aged 66 and his children who were aged 45, 43, 40 and 33 at the date of his death. The
deceased was age 70 at the date of death. The court found that the deceased had been a
remarkable man whose death had had a profound effect on the family. The Lord Ordinary
expressly followed very closely the approach taken by the Lord Ordinary in the McGee case
and awarded £80,000 to the widow and £35,000 to each of the children in respect of their
section 4(3)(b) claim.
[24] I was referred by senior counsel to the unreported jury awards in the case of Stanger
v Flaws which is referred to in McEwan & Paton on Damages at paragraph 13-167. This
involved the death of a lady in a fatal road traffic accident. She was 64 years old at the date
of her death. Her husband was 68 years old at that time. The couple had been married for
46 years. There were two sons who made claims under section 4(3)(b). They were aged 49
and 46 respectively at the date of the trial. The awards made by the jury were £120,000 to
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the widower and £50,000 each to the sons. The deceased was apparently described as the
central supportive figure in a close family being described as a homemaker and traditional
housewife. The family had suffered deep feelings of grief and sorrow and the husband had
been devastated by the loss of the deceased.
[25] It appeared that the first post Hamilton award made by a jury was in the case of Kelly
v UCS Ltd (in liquidation) 2013 Rep B 107-6. In that case the deceased was 82 years of age at
the date of death. He died of mesothelioma. He and his widow lived in separate houses but
spent most of their time together. The widow had nursed him during his fatal illness. The
jury awarded to the widow £40,000 for loss of society, distress and grief. A son and
daughter of the deceased apparently in their forties at the date of his death were each
awarded £25,000 in respect of their claims for loss of society etc.
[26] Senior counsel for the pursuers, relying, it seemed, on the awards made in the
Stanger case submitted that it could now be said that an appropriate sum to be awarded to a
widow/widower in a death case in respect of a section 4(3)(b) claim would be a six figure
sum. Reference was made to the recognition by the Extra Division in Young v Macvean 2015
SLT 729 at paragraph 45 of the “continuing upward pull of jury awards”. The awards made
by the jury in the case of Kelly, it was submitted, fell to be distinguished from the present
case in particular because it appeared that the parties had not been living physically together
as a family for some time.
[27] In reply senior counsel for the defenders submitted that the judicial task in assessing
damages in such cases was to seek to achieve a level of consistency between awards made
by juries on the one hand and those made judicially. There was no question, however, of
there being a fixed tariff. Circumstances could and did vary greatly from case to case. He
did not dispute senior counsel for the pursuers’ description of the exceptional and
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particularly close relationship of all the pursuers with the deceased. Senior counsel for the
defenders also accepted that all three pursuers had clearly been greatly affected by the
deceased’s death. Whilst seeing him suffering from his fatal illness would have been
distressing for them, that had endured only for a relatively short period of time. Against
these factors, however, had to be placed the age of the deceased at the date of his death and
his life expectancy at that date, particularly having regard to the other illnesses the deceased
had been suffering from. Senior counsel for the defenders said that he did rely, to some
extent, on the awards made by the jury, post Hamilton in the case of Kelly but accepted that
the awards made in that case may fall to be regarded on the low side. There were material
differences between the circumstances of the deceased and his relatives in the cases of
McGhee, Gallagher and McCarn, in particular the age of the deceased persons in each of those
cases and their life expectancy at the date of death but for the actual cause of death. The
children in the other cases relied upon by the pursuers were also significantly younger than
the first and second named pursuers in the present case.
Decision
[28] It is appropriate to recall what Lord Justice Clerk Grant said in McCallum v Paterson
at 1968 SC 280 at pages 282-283 viz:
“No precise rule can be laid down as a yardstick for solatium awards which must of
necessity be of a somewhat arbitrary character. Money cannot compensate for pain
and suffering and it is impossible, by a monetary award under this head, to put the
victim in the situation in which he would have been had the accident not occurred.
The test must always be what is fair and reasonable in the circumstances and,
because of that, and because of the absence of any specific rules for quantification,
reasonable men may vary considerably in their assessment of what the appropriate
award should be”.
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That dictim of course was in relation to the law relating to solatium. Section 4(3)(b) of the
2011 Act, of course, gives certain directions as to the specific factors which require to be
taken into account in making awards under its provisions but the assessment to be carried
out thereby, in my view, may be no less difficult than was the case in relation to assessing
solatium claims under the previous law. I consider that senior counsel for the pursuers was
correct in conceding that there was no room for anything like a tariff system operating in
relation to such claims. Each such claim must be determined on the particular and peculiar
facts of the case. Notwithstanding his concession in that respect, senior counsel for the
pursuers, in his submissions, might be said to have been advancing the proposition that a
tariff system now did exist when he suggested that it might be taken that an award in
respect of the spouse of a deceased would be a six figure sum in the range £100,000
to £120,000 and that should be regarded as normal for such a claim.
[29] In the present case there appears to me, to be two sets of factors which are of material
importance in seeking to reach a conclusion as to what are just awards in the circumstances.
The first set of circumstances relate to the extremely close and long enduring relationship
among all of the pursuers and the deceased and how that relationship operated in practice
among them. The second set of factors, on the other hand, relates to (a) the advanced age of
the deceased at his death, (b) his relatively short life expectancy at the date of his death,
having regard to his health, absent the fatal condition and (c) the ages of the pursuers
themselves. In that connection I would adopt what the Lord Ordinary said in Gallagher v SC
Cheadle Hume Ltd supra at page 37 where his Lordship was to the following effect:
“The existing statutory provision in Scotland contained in section 4(3)(b) of the
2011 Act, by which I am bound and to which I must give effect, in my opinion
necessarily involves inquiring in each case into the nature and extent of all three
elements referred to in the subsection. It is open to a pursuer to highlight the
positive aspects of a relationship and to a defender to highlight the negative aspects.
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In relation to the loss of such non-patrimonial benefit as the relative might have been
expected to derive from the deceased’s society and guidance if the deceased had not
died, the evaluation must consider what the non-patrimonial benefit is and for how
long it is likely that it would have been derived by the relative if the deceased had
not died. This must, in turn, involve consideration of the ages of the relative and of
the deceased at the date of the deceased’s death.”
Reference may also be had to what the Lord Ordinary said in the case of McCarn supra at
page 144, paragraph 47 and 48 where after citing the provisions of section 4(3)(b)(iii) his
Lordship said:
“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.”
In the present case, it is my opinion, that senior counsel for the pursuers in his submission,
underrated the significance of the age and life expectancy of the deceased and the respective
ages of the pursuers. The third named pursuer lost the continuing loving and close
supportive relationship of an elderly partner. She, herself, was elderly at the date of the
deceased’s death. The duration of what she lost can be less than a widow, say in her sixties.
The first and second named pursuers lost an elderly father. Their suffering in that respect is
different from children in a similarly close relationship with a parent where they were, say,
in their forties, and the deceased was in his sixties. The duration of what can be said to have
expected to be been lost by the death of the deceased, in such a case, is different from that
which obtains in the present case. In the difficult business of putting a money value on such
losses it seems to me that some significant differentiation in quantification falls to be made,
all other things being equal, in the two different sets of circumstances I have just referred to.
[30] As regards the element of distress and anxiety endured by the pursuers in
contemplation of the suffering of the deceased himself, before his death, the evidence of the
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first named pursuer, which I accepted, was that the deceased who died on 20 February 2016
was, prior to the diagnosis of his fatal illness in July 2015 “a very active and fit person”.
Without in any sense underestimating the nature of the distress suffered by the pursuers
from July 2015 until February 2016, in witnessing the deceased decline, the length of time
during which this was endured was relatively short compared, for example, with a case
where a person witnesses a long drawn out painful final illness of a close relative.
[31] I have had regard to the various awards referred to by counsel, on both sides of the
bar. Unsurprisingly none of those on their facts could be said to be virtually identical to the
present. While, of course, I accept the submissions of senior counsel for the pursuers to the
effect that, following in particular the decision of the court in Hamilton the task of the court,
in making a judicial award in such a case, has to be carried out with regard to the level of
jury awards in similar cases, to ensure a level of consistency between judicial awards and
jury awards. The cases to which I have been referred, while of assistance in showing a range
of judicial and jury awards in relation to claims such as the present all, understandably,
differ, to a greater or lesser extent, particularly with regard to the ages of the parties, the
duration of the relationship and the life expectancy of the deceased at the date of his death,
absent the fatal illness in question. (As has been seen, the court was referred to only two
jury awards, which do not demonstrate a pattern of awards on such case). Doing the best I
can, having due regard to that range of awards and the particular facts of the present case I
have determined that the following awards should be made under section 4(3)(b); (a) To the
third named pursuer the sum of £75,000 two thirds thereof being referable to the past and
one third referable to the future; (b) To the first named pursuer and the second named
pursuer I shall award in each case the sum of £30,000, one half thereof referable to the past
and one half referable to the future.
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[32] As I have already indicated I shall make an award of £9,000 in respect of loss of
services under section 9 of the 2011 Act to the third named pursuer with £3,000 thereof being
allowable to the past and £6,000 to the future and there shall also be paid by the defender to
the first and second pursuers, as executors nominate of the deceased, the sum of £90,000
Sterling inclusive of interest to date and gross payment of £13,455 payable under the
Pneumoconiosis etc (Workers’ Compensation) Act 1979 in satisfaction of the first conclusion
of the Summons. I shall pronounce decree also for payment by the defenders to the third
named pursuer, by way of compensation for loss of financial support, in terms of
section 4(3)(a) of the Damages (Scotland) Act 2011 of the sum of £89.480.31 inclusive of
interest on any past element to 11 July 2017. I shall, furthermore, pronounce decree for
payment by the defenders to the third named pursuer of £3,698.69 inclusive of interest to
11 July 2017 in respect of expenses incurred in connection with the deceased’s funeral.
[33] With regard to any outstanding questions of interest, payable on any of the foregoing
sums I shall have the case put out By Order so that any such matters may be determined and
a final interlocutor can be pronounced. In the event of the parties being in agreement in
relation to all questions of interest then such a hearing may not be required.
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