Charmaine Haggerty-Garton (for Herself and as Personal Representative of the Estate of David Haggerty-Garton) v Imperial Chemical Industries Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ritchie |
| Judgment Date | 03 November 2021 |
| Neutral Citation | [2021] EWHC 2924 (QB) |
| Docket Number | Case No: QB 2020 001305 |
| Year | 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 2924 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ritchie
Case No: QB 2020 001305
( John Paul Swoboda instructed by Field Fisher, London) for the Claimants
( Philip Turton instructed by Clyde & Co Manchester) for the Defendant
Hearing dates: 28/29 October, 3 rd November 2021
Approved Judgment
The parties
The first Claimant is the wife of the deceased and brings the claim for herself and her three children Joshua, Ben and Zachary. The 2 nd and 3 rd Claimants are daughters of, the 4 th and 5 th Claimants are sisters of and the 6th Claimant is the granddaughter of the deceased.
The Defendant, ICI employed the Claimant in the 1970s.
The issues
This disease based personal injury claim is for damages arising from the death of the deceased (David) due to his exposure to asbestos whilst at work for the Defendant between 1973/4 and 1978/9. Judgment has been entered for damages to be assessed.
The 3 quantum issues remaining for this court to determine are:
PAST
1. Estate claim: solatium for David's pain, suffering and loss of amenity.
PAST and FUTURE
2. Dependency: loss of past and future services which David would have provided.
3. Loss of David's society to the 1 st Claimant and her three children. And interest on past loss and expense.
The heads of loss which are agreed are as follows:
Past
4. Dependency: financial, agreed at £7,944.46.
5. Care provided to David during his illness: £13,320.
6. Patrimonial expenses: £7,424.19
7. Funeral expenses: £3,553.32.
And interest on past loss and expense
Future:
8. Dependency: financial, agreed at £138,687.12
The summary of claim and defence
The claim form was issued on the 7th of April 2020. In the amended particulars of claim the Claimants asserted that David was exposed to asbestos whilst employed by the Defendant between the tax years 1973/1974 and 1978/1979. During those years David worked at the ICI factory in Ardeer, Stevenston, Scotland. Part of his work involved removing old and friable asbestos lagging from pipe work. David was not provided with any adequate safety masks or respirators whilst doing this work and the Claimants alleged that the Defendant did not provide David with any information or training about the dangers of asbestos. The Claimants alleged inhalation of injurious quantities of asbestos dust and fibre and asserted that the Defendant was negligent in causing or allowing that to occur. The Claimants pleaded that the law applicable to the claim was Scots law but insofar as it is relevant also English law. The 1 st Claimant brought the claim under the Damages (Scotland) Act 2011 for herself and her children and asserted that the 1 st Claimant and the 2nd to 6th Claimants were dependents/family of David. In addition the Claimants asserted that the first Claimant and her children: Joshua, Benjamin and Zachary, suffered distress, anxiety and horror in the contemplation of David's death and thereafter grief and sorrow, loss of society and bereavement. Likewise under the amended particulars of claim, by late amendment, the second to sixth Claimants sought awards for loss of society.
In the defence dated 23rd June 2020 ICI did not admit the 1 st Claimant was the widow of David and required the 1 st Claimant to produce her marriage certificate. Nor did they admit that the 1 st Claimant was the executrix of the estate of David and required the 1 st Claimant to produce a copy of the grant of probate. Nor did they admit that any of the children were entitled to damages. The Defendant required the Claimants to prove that David was employed by them and all facts relating to liability. The Defendant denied David “would have been required to handle asbestos”. Defendant required the Claimants to prove that any dust inhaled by David was such that it gave rise to a reasonably foreseeable hazard. As to the applicable law the Defendant denied that Scots law was applicable and pleaded the applicable law was wholly or partly the law of England. The Defendant submitted that any cause of action accrued in England and averred that the recoverability of loss was governed by the law of England. Causation was denied. No admission was made in relation to the report of Doctor Twort, consultant chest physician, served with a particulars of claim. The Defendant did not admit that David developed mesothelioma and asserted that the doctor had failed to give sufficient weight to David's previous medical history and asserted that David had an excessive alcohol intake. A counter schedule was served with the defence and the Defendant asserted that damages for dependency could only be claimed under the Fatal Accident Act 1976 and by the estate under English law, not Scottish law.
The chronology of the action
By an order dated 22nd October 2020 the parties agreed to the trial of a preliminary issue to decide the applicable law for the claim. Directions were given in relation to the preliminary issue and the trial was to take place on the 13th of January 2021 or within six weeks thereafter.
The Defendant abandoned the objection to the proper law and by an order dated 8th of January 2021, by consent, the parties agreed that Scots law did apply to the issues of liability and quantum.
By an order dated 11th January 2021 Master Gidden required the parties to give standard disclosure on quantum by the end of March, to file witness statements by the end of April 2021, gave the Claimant permission to rely on the medical report of Doctor Twort, dated 6 June 2019 and gave the Defendant permission to obtain medical evidence from a consultant physician to be served by the 28th of May 2021. The Claimant was to serve and file an updated schedule of loss by the 30th of July and the Defendant was ordered to file an updated counter schedule by the 27th of August 2021. The case was listed for a 3 day trial in a window commencing the 1st of October 2021
The 1 st Claimant's schedule of loss for trial was served within time and totalled £760,289. The Defendant's counter schedule was dated 10.9.2021 and served at some time thereafter. Unless there was an agreement between the parties the counter schedule was served late, only six weeks before trial. The total admitted therein was £432,127.
Evidence
The evidence before me was contained in the witness statements of David, dated 14th September 2018; the 1 st Claimant dated 21st April 2021 and Dushal Mehta dated 19th November 2020.
I also had before me the expert reports of Doctor Twort, dated 6th June 2019 and two witness statements from David Short, an expert on Scottish law, dated 25th November 2020 and February 2021. Both were agreed.
The Defendant served and called no evidence.
Agreed facts
Despite the denials and non admissions in the defence, by the time of the trial, liability had been admitted, it was admitted that Scots law applied to the quantification of the claim, it was admitted that the first Claimant was David's wife and the executrix of his estate. It was admitted that her children were entitled to make the claims that they did and it was admitted that the 2nd to 6 th Claimants were entitled to make the claims that they had.
The day before the trial started the second to sixth Claimants' claims were settled and came before me only for the purposes of approval.
The application to amend the counter-schedule
Two days before the trial the Defendant served a skeleton argument which contained substantially different figures from those contained in the Defendant's served counter schedule. Although the Defendant did not accept that it needed permission to amend its counter schedule, the Claimants asserted that they were prejudiced by the reductions in the figures which had been admitted in the Defendant's counter schedule, which were reduced in the Defendant's skeleton and that the pleaded case was being changed without permission. To explain this, for instance, in relation to loss of society, having admitted that the appropriate figure was £85,000 in relation to the first Claimant and £30,000 in relation to each of the first Claimant's 3 male children, in the skeleton the Defendant sought to reduce those sums respectively to £25,000, and £5,000 for each of the children.
I was asked to determine whether an application to amend the Defendant's counter schedule was necessary to enable the Defendant to alter its case so radically.
I heard submissions on that topic and gave a ruling on the necessity for amendment of the Defendant's statement of case. Having given that ruling the Defendant gave an undertaking to file a part 23 notice of application to amend its counter schedule by 4:00 PM on Monday the 1st of November and I preceded to determine the application by the Defendant to amend its statement of case to reduce the figures admitted therein. For the reasons set out in the extempore judgement which I gave on the application, I refused permission to the Defendant to amend its counter schedule. I will not rehearse those reasons here save to say that I did not allow the submitted reductions in the sums admitted in the counter schedule by the Defendant.
The trial therefore proceeded on the basis of 6 quantum issues which, by the morning of day two, had reduced to the 3 issues set out above and the parties relative positions in relation to each issue is set out in the table below. By the time of closing submissions the issues were as follows:
...Head of Damage
To continue reading
Request your trial