Margaret Anne Gallagher And Others Against S.c. Cheadle Hume Ltd And Others
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2014] CSOH 103 |
| Published date | 24 June 2014 |
| Date | 24 June 2014 |
| Docket Number | PD2598/12 |
| Court | Court of Session |
| OUTER HOUSE, COURT OF SESSION
| |
|
| [2014] CSOH 103
|
| PD2598/12
| OPINION OF LORD UIST
in the cause
MARGARET ANNE GALLAGHER and OTHERS
Pursuers;
against
S C CHEADLE HUME LTD and OTHERS
Defenders:
________________
|
Pursuers: MacMillan; DAC Beachcroft Scotland LLP
1st, 2nd, 4th and 5th Defenders: McGregor; HBM Sayers; Simpson & Marwick WS
24 June 2014
Introduction
[1] The late James Patrick Gallagher was born on 9 February 1939 and died of mesothelioma on 23 December 2009. This action for damages is brought by his widow Margaret Ann Gallagher (the first pursuer), who was born on 22 December 1943 and whom he married on 29 December 1962, their four surviving children and seven grandchildren. The four surviving children are James Joseph Gallagher, born on 18 April 1966; Angela Mary McCabe, born on 18 April 1964; Mary Ann Thomson, born on 16 March 1976; and Theresa Rose Gallagher, born on 17 April 1969. They are respectively the second, third, fourth and fifth pursuers. James lives in Aberdeenshire and his sisters live in Ayrshire. The seven grandchildren are RJG, born on 25 June 1999 and DSG, born on 26 March 2002 (the sons of James Joseph Gallagher); Michael Joseph McCabe, born on 8 December 1997 (the son of Angela Mary McCabe); SJG, born on 8 October 2007, and JPG, born on 4 October 2009, the sons of Mary Ann Thomson; Marie Therese Guise Gallagher (daughter of Theresa Rose Gallagher), born on 11 April 1987, who is the sixth pursuer; and Laura Grace McCrimmond (daughter of James Joseph Gallagher), born on 28 September 1988, who is the seventh pursuer. Apart from Laura, who lives in the United States, all the grandchildren live in Scotland. Liability to make reparation to the pursuers in respect of Mr Gallagher’s death has been admitted by the first, second, fourth and fifth defenders, each of whom negligently exposed him to asbestos during his employment with them. The action therefore went to proof on the issue of quantum only. I heard evidence from the first to sixth pursuers and from Michael Joseph McCabe, who was a minor when the action was raised but is now over the age of majority.
[2] Mr Gallagher’s mesothelioma first manifested itself in the form of a cough in 2008. On 26 October 2008 he attended Crosshouse Hospital with what was noted to be “cough with purulent sputum for the last few days, today sharp pain across back and chest, worse on inspiration”. On 14 February 2009 he contacted NHS 24 with what was noted to be “chest wall pains for 7+ days and shortness of breath, pain at back worsens on movement, sore to touch”. He was examined by Dr McHattie, who recorded “Chest pains for 1 week. Getting worse. No medical advice sought. Sharp pains and sore to touch. Intermittent. All at right side at back of shoulder, lower back and right pectoral area. Not breathless, sharp pain when taking a deep breath. No URTI. O/E Dyspnoeic at rest. JVP elevated. No ankle oedema. Pulse 96/min. BP 130/86. HS 1+2+0. Poor AE on right. PN L=R=resonant.” It was Dr McHattie’s impression that Mr Gallagher was suffering from pneumonia, that he required a chest x-ray and that he should be referred to Crosshouse Hospital. On 16 March 2009 an x-ray showed that Mr Gallagher’s right pleural infusion had increased since previous views. On 14 April 2009 he attended at the clinic of Dr Kenneth Anderson, Consultant Physician, who recorded: “Chest discomfort and cough have been present since February 2009. The chest x-ray shows a right pleural effusion with some pleural thickening. … His weight has reduced by about half a stone over the last few weeks … the chest x-ray showed a right pleural effusion with a possible mass. An urgent CT scan of the thorax has been requested.” On 19 May 2009 Dr Anderson recorded: “The CT scan shows pleural thickening with a pleural effusion which requires a VATS biopsy.” On 9 June 2009 Mr Gallagher underwent a video imaged pleural biopsy, drainage of the pleural effusion and talc pleurodesis at the Golden Jubilee National Hospital, Clydebank, from which he was discharged on 11 June 2009. He was diagnosed with mesothelioma on 27 July 2009. He was a patient receiving palliative care at Crosshouse Hospital from 10 December 2009 until his death.
[3] It was clear from the evidence that Mr Gallagher was a remarkable man and that his death has had a profound effect on his family. He was born and brought up in the Anderston area of Glasgow, one of a family of seven children. At the age of 11 he moved with his family to Saltcoats. He attended local schools and after leaving school became a clerk with British Rail in Kilmarnock. He was called up to do his national service in the RAF. He thereafter went on to establish a successful career as an instrument engineer. He and his wife had five children (four of whom survive him) and subsequently seven grandchildren, all of whom I have referred to above. He was very much a family man and was greatly respected and admired by his family: indeed, I think it would not be going too far to say that he was adored by them. He was musically gifted, his father having been a master mandolin player who encouraged him to play music from an early age. He was an accomplished guitar player. He was also a man of deep faith who was a member of the music group in his parish church. His family were devastated by his unexpected illness and death. Mrs Gallagher described the loss of his companionship as absolutely devastating. Two grandchildren were specially affected by his death. Marie Therese Gallagher looked upon him as the only father figure in her life and called him dad when she was little. She was effectively brought up by her grandparents and considered their home, where she spent the majority of her time until March 2012, to be hers also. He provided her with emotional and spiritual guidance and she was shocked when she learned of his illness and, subsequently, his death. Mr Gallagher’s grandson Michael Joseph McCabe, who suffers from an unpleasant medical condition, was also specially affected by his death. He looked upon his grandfather as his main role model and had a particularly close relationship with him. In his own words he held his grandfather, who helped him greatly with his medical condition, nurtured his religious faith, instilled in him a love of music and provided him with love and support whenever he was confused “on a pedestal in a childish manner”. He described Mr Gallagher as irreplaceable.
The principal dispute
[4] The principal dispute between the parties related to the appropriate awards which should be made to the pursuers under section 4(3)(b) of the Damages (Scotland) Act 2011 (“the 2011 Act”), which covers
“such sum, if any, as the court thinks just by way of compensation for all or any of the following:
- distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death,
- grief and sorrow of the relative caused by A’s death,
- the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society if A had not died.”
Section 4(4) of the 2011 Act provides that the court, in making an award under section 4(3)(b), is not required to ascribe any part of the award specifically to any of the sub-paragraphs of that paragraph. I was referred to certain recent cases dealing with awards under section 4(3)(b) of the 2011 Act or its statutory predecessor, section 1(4) of the Damages (Scotland) Act 1976 (“the 1976 Act”) and I propose to deal with each of these in turn and then to narrate the submissions of counsel briefly before setting out my views and determining the amounts of the awards to each of the pursuers.
Previous decisions
[5] In Bellingham v Todd 2011 SLT 1124 Lord Woolman considered previous judicial and jury awards. At para [47] he stated as follows:
“The issue of how to deal with the variation between judicial and jury awards has been addressed in a number of cases: Girvan v Inverness Farmers Dairy 1998 SC (HL) 1; Shaher v British Aerospace Flying College Ltd 2003 SC 540; McLean v Wiilliam Denny & Bros Ltd 2004 SC 656 and Murray’s Ex v Greenock Dockyard Co Ltd 2004 SLT 1104. I draw the following propositions from those decisions:
- the assessment of damages is essentially a jury question;
- that is because such awards should reflect the expectations of society;
- the court is therefore encouraged to look for guidance to jury decisions;
- reliance can be placed upon a consistent pattern of jury awards; and
- caution should, however, be exercised before (i) reliance is placed on only one jury award; or (ii) equiparating awards in respect of different classes of relative.”
The deceased in that case was aged 40. The age of the widow is not given, but it is stated that they had two young children. The deceased also had a son Steven, aged 25, from a previous relationship. On 5 May 2011 Lord Woolman made the following awards under section 1(4) of the 1976 Act: £50,000 to the widow; £25,000 to each of the two young children and £15,000 to the adult son, Steven.
[6] In Wolff v John Moulds (Kilmarnock) Ltd 2012 SLT 231 the deceased died from mesothelioma aged 67 in 2007. The awards made by Lord Doherty on 29 September 2011 under section 1(4) of the 1976 Act were as follows: £50,000 to the widow; £15,000 to each of two adult daughters who lived away from home but had regular contact with the deceased; £18,000 to the youngest daughter aged 32 who lived at home and had relied on the deceased to a much greater extent than her siblings; and £6,500 to the granddaughter, on the basis that the bond between a grandchild and grandparent was less strong than the bond between child and parent. At p 236B-C, para [23] Lord Doherty said:
“In relation to each of the pursuers I require to make a judicial assessment of what is just compensation for the matters referred to in section 1(4). That involves the difficult exercise of taking account...
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