McLean v William Denny & Bros Ltd
| Jurisdiction | Scotland |
| Judgment Date | 30 April 2004 |
| Date | 30 April 2004 |
| Docket Number | No 51 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lord Cameron of Lochbroom
Damages - Assessment of damages - Loss of society - Death of husband from mesothelioma - Damages (Scotland) Act 1976 (cap 13), sec 1(4)
Section 1(4) of the Damages (Scotland) Act 1976, as amended by the Damges (Scotland) Act 1993 (cap 5), provides for the court to make to certain relatives of a deceased person 'such an award as the court thinks just by way of compensation for all or any of the following - (a) distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death; (b) grief and sorrow of the relative caused by the deceased's death; (c) 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 court in making an award under the subsection is not required to ascribe specifically any part of the award to any of paras (a), (b) or (c).
The widow of a man who died from mesothelioma sought damages for loss of society. It was not in dispute that she was entitled to an award under all three heads of sec 1(4). She and the deceased had had a long and happy marriage, with three children. She had cared for the deceased when he became ill, in about November 2000, until he died in June 2001. The Lord Ordinary (Cameron of Lochbroom) awarded 28,000 under sec 1(4) (McLean v William Denny & Bros Ltd 2004 SLT 422). He considered recent judicial and jury awards for compensation for loss of a relative, in particular McManus' Exrx v Babcock Energy Ltd and Shaher v British Aerospace Flying College Ltd,and observed that the court should look for guidance to jury as well as judicial awards; that awards in respect of children were not directly relevant to awards to widows; and that the 'base figure' used in McManus should be considered afresh in the light of subsequent awards. The defenders reclaimed. They contended that the Lord Ordinary had misinterpreted the decision of the Extra Division inShaher in supporting the view that judicial awards to widows were too low; that too much attention had been given to a comparison with awards in respect of children; and that there had been special circumstances in Shaher justifying a higher award. The pursuer cross-appealed, contending that the award was inadequate given that the Lord Ordinary had recognised that awards to widows were too low, and that all three heads of sec 1(4) applied.
Held (affg judgment of Lord Cameron of Lochbroom) that: (1) the Lord Ordinary had not erred in law as the defenders contended, and in particular was entitled to proceed on the basis that judicial awards for bereavement had been too low, and that the 'base figure' inMcManus required to be considered afresh (paras 20,21); (2) there was no inconsistency between the Lord Ordinary's findings and his decision as the pursuer contended, and no ground for interfering with his award (paras 27, 28); and reclaiming motion refused.
Observed that if there are a number of jury awards which indicate a level or range of awards a jury might be expected to make, that would be important evidence for a judge making an assessment; that in general, judicial awards in bereavement cases had been on the low side, including awards to widows, but because of the paucity of jury awards, no definite conclusion could be drawn from them as to the extent to which judicial awards should be increased; however, the 'base figure', in the case of sudden death, that is without allowing for head (a) of sec 1(4), should in the absence of special features be in the region of 25,000 (para 37).
MARION RENWICK THORBURN MCLEAN,Alison A Campbell, Kenneth Campbell, Henry McLean, Charlotte McLean and Andrew T McLean brought an action in the Court of Session against William Denny & Bros Ltd, Kendrick Computing plc (in liquidation) and Richard Victor Yerburgh Setchin for damages in respect of the death of Henry McLean from mesothelioma. On 5 December 2003 the Lord Ordinary (Cameron of Lochbroom) made an award of damages in favour of the first pursuer against the first and third defenders, the remaining claims having been settled (McLean v William Denny & Bros Ltd 2004 SLT 422).
The first and third defenders reclaimed. The first pursuer cross-appealed.
Cases referred to:
Devlin v Strathclyde Regional Council 1993 SLT 699
Donald v Strathclyde Passenger Transport Executive 1986 SLT 625
Heil v RankinELR [2001] QB 272
Jarvie v Sharp 1992 SLT 350
Kelly v Glasgow CorporationSCSC 1949 SC 496; 1951 SC (HL) 15
Kempton v British Railways Board 18 May 1993, unreported
McIntosh v Findlay 2001 Rep LR 66
McManus' Exrx v Babcock Energy LtdSC 1999 SC 569
Sands v DevanSC 1945 SC 380
Sargent v DewarUNK 2001 SCLR 190
Shaher v British Aerospace Flying College LtdSC 2003 SC 540
Strang v Le Brusq 2001 Rep LR 52
Wells v Hay 1999 Rep LR 44
Textbooks, etc referred to:
A M, Hajducki, Changing Values: Bereavement Awards in the post-Shaher World 2003 SLT (News) 189-193
Scottish Law Commission, The Effect of Death on Damages (Scot Law Com no 134, 1992), paras 3.22, 4.38, 4.39
The cause called before the First Division, comprising the Lord President (Cullen), Lord Hamilton and Lord Weir for a hearing on the summar roll, on 16 and 17 March 2004.
At advising, on 30 April 2004, the opinion of the Court was delivered by the Lord President (Cullen) -
OPINION OF THE COURT -[1] The Lord Ordinary, all other aspects of this action having been resolved by agreement, awarded the first pursuer the sum of 28,000 under sec 1(4) of the Damages (Scotland) Act 1976, as amended, as part of an award of damages against the first and third defenders (to whom we will refer as 'the defenders'). The defenders have reclaimed against that part of the Lord Ordinary's decision, and the first pursuer has taken the opportunity of cross-appealing against it. In each case it is claimed that the Lord Ordinary erred in law.
[2] The first pursuer is the widow of the late Henry McLean, whom she married in about 1954. At the time of his death on 18 June 2001 they were 67 and 75 years of age respectively. As the Lord Ordinary narrates in his opinion, it had been a very happy marriage. There were three children of the marriage. The first pursuer and her husband enjoyed each other's company in many ways, socially and in outside activities, such as walking and gardening. Her husband, who liked to keep himself fit, used to swim each week. He did not smoke, and he drank within moderation.
[3] Prior to and around 1990 he had experienced chest pains, which were mainly due to tension or anxiety. Some years prior to 2001 he became aware that he had developed plaques on his lungs. In the course of the spring and summer of 2000 the first pursuer noticed that he was not as fit as he had been. He complained of being very tired, and developed a cough which he had not had before. He became unable to carry out gardening. The first pursuer was worried about his tiredness. An element in her anxiety was her awareness that the plaques might develop into a malignant cancer. Her husband became increasingly breathless. These symptoms were in fact related to the onset of mesothelioma.
[4] In November 2000 the deceased was referred to hospital for x-ray examination. Subsequently he underwent pleural aspiration, and a biopsy was undertaken. The first pursuer stated in evidence that the doctor was very anxious about her husband's condition. Although there was no suggestion at that time that he had developed mesothelioma, these were very...
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