Joseph Bernard Mccarn And Others V Secretary Of State For Business, Innovaton And Skills
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2014] CSOH 121 |
| Court | Court of Session |
| Published date | 05 August 2014 |
| Year | 2014 |
| Date | 05 August 2014 |
| Docket Number | PD1343/13 |
| 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...
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