Phillips v Grampian Health Board (No.1)
| Jurisdiction | Scotland |
| Judgment Date | 20 January 1989 |
| Date | 20 January 1989 |
| Docket Number | No. 15. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Sutherland.
DamagesPersonal injuryLoss of societyLoss of supportInevitable death of husband within few years from date of marriageMalignant tumour diagnosed by time of marriageWhether widow entitled to claim for loss of society and loss of supportWhether her knowledge at time of marriage a mitigating factor in assessment of loss of society awardDamages (Scotland) Act 1976 (cap. 13), secs. 1 (3) and (4), 9 and (1) and (2) and Sched. 1, para. 1 (a).1
The pursuer was sisted in an action of damages originally raised by her late husband against a health board in respect of alleged negligence of doctors in the employment of the health board in the diagnosis of a malignant tumour from which her husband suffered. Her husband died in 1986. The pursuer averred that the tumour ought to have been diagnosed in 1978 and that, had it been treated, then a full recovery would have been made. In 1981 the pursuer and the deceased married by which time the malignant tumour had already been diagnosed. The health board took the pursuer's averments to procedure roll debate and argued that the pursuer had had no prospect of enjoying her husband's society or obtaining his support for more than a very few years and that, although the Damages (Scotland) Act 1976 gave the pursuer a right to sue for loss of society and loss of support, that loss should be quantified at nil or, alternatively, that the circumstances of the cause were sufficient to mitigate the damages for loss of society. The Lord Ordinary (Sutherland) held that there was nothing in sec. 1 (3) or (4) of the 1976 Act which would necessitate the widow's claim being quantified at nil and, further, that public policy should prevent the defenders from, in effect, founding on their own negligence. The Lord Ordinary therefore excluded from probation certain averments of the defenders which supported their arguments. The defenders reclaimed to the Inner House.
Held (rev. the judgment of Lord Sutherland) that it was clear that in this action the court was, or might be, faced with a difficult and novel question namely, whether this particular pursuer, in the particular circumstances of this case, had a relevant claim for loss of support since the death of her late husband within the meaning and intendment of sec. 1 (3) of the Act of 1976 and a relevant claim for a loss of society award within the meaning and intendment of sec. 1 (4) of that Act; but that it was going too far too fast to attempt to answer that difficult and novel question on the pleadings alone so that the only wise course was to reserve that question for decision, if it should arise at all, after proof before answer on the whole averments of both parties on record and when the precise circumstances in which the present pursuer married her late husband had been established; and reclaiming motion allowed.
Mrs Marilyn Souter or Phillips was sisted as pursuer, on 26th May 1987, in an action of reparation for damages originally raised by her late husband, Paul James Phillips, against Grampian Health Board...
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