Elizabeth Wolff And Others V. John Moulds (kilmarnock) Limited And Another
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2011] CSOH 159 |
| Court | Court of Session |
| Published date | 29 September 2011 |
| Year | 2011 |
| Date | 29 September 2011 |
| Docket Number | PD963/10 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 159 | |
| PD963/10 | OPINION OF LORD DOHERTY in the cause ELIZABETH WOLFF & OTHERS Pursuers; against (FIRST) JOHN MOULDS (KILMARNOCK) LTD; and (SECOND) WEIR CONSTRUCTION LIMITED Defenders: ________________ |
Act: Marshall, Solicitor Advocate; Shields, Solicitor Advocate; Thompsons, Solicitors.
Alt: McGregor; Biggart Baillie, solicitors
29 September 2011
Introduction
[1] The pursuers in this action are the family of the late William Gardner Wolff. Mr Wolff was born on 23 November 1940. He died on 30 March 2007. The cause of death was mesothelioma. The first pursuer is his widow. She was aged 69 at the proof. She sues both in her capacity as the deceased's executrix and as an individual. The second, third, and fifth pursuers (Gillian, Elaine and Caroline) are adult daughters of the deceased, aged 32, 43 and 45 respectively at the proof. The fifth pursuer also sues (as sixth pursuer) qua guardian of her daughter Evie (aged 13 at the proof). Claims made by other family members have been settled.
[2] Mr McGregor appeared for the second defenders. There was no appearance for the first defenders. The second defenders accepted that the deceased's mesothelioma had been caused by negligent exposure of the deceased to asbestos dust during his employment with them. The pursuers sought decree only against the second defenders. At the proof I heard evidence and submissions relating to quantum of damages. Most of the evidence was uncontentious.
[3] The first pursuer and the deceased were married on 26 June 1962. They had started going out three years earlier, when the first pursuer was 16 and the deceased was 18. The deceased had been the first pursuer's only boyfriend. They had four children, three daughters and a son. They had three grandchildren. They were a devoted couple.
[4] The deceased was a joiner. He had been in employment for 50 years before he had retired in 2005. He had done a good deal of work to their current home, which had been purchased in about 2001. It was an older property (about 110 years old). Work done by him had included fitting a new kitchen, renewing the central heating, redecorating every room, helping with - and supervising - the rebuilding of a double garage, building a greenhouse, laying decking, and restructuring the garden.
[5] The deceased did much of the household maintenance himself. He shared the household and other chores with the first pursuer, including cooking, cleaning, shopping and gardening. He did the heavier tasks.
[6] The deceased had retired three months before his sixty-fifth birthday in order to retire at the same time as the first pursuer. They had planned to spend time together exploring Scotland, and to make a trip to Australia.
[7] After his retirement the deceased was diagnosed with atrial fibrillation. He was prescribed Warfarin. He found himself becoming more breathless and less able to do the physical things he had done formerly. He reported breathlessness to his G.P. on 3 May 2006. On 5 July 2006 he was admitted to Crosshouse Hospital. Preliminary investigations suggested a possible diagnosis of mesothelioma. He had further investigations at Hairmyres Hospital. In mid-August 2006 the diagnosis of mesothelioma was confirmed. The deceased was advised that he had less than a year to live. Thereafter medical intervention was of a palliative nature. He was discharged home. He was substantially housebound from September 2006. He spent most of the last three months of his life in bed. He required increasing doses of analgesia to deal with pain. He had a persistent cough and breathlessness. He suffered very substantial weight loss, nausea, lack of appetite and fatigue. He was a hospice in-patient from 13 March 2007 until his death.
Damages
Life expectancy
[8] One of the areas of contention between the parties was the deceased's life expectancy. The only medical witness was Dr Peter Semple, a recently retired consultant physician who specialised in respiratory complaints. He held a consultant's post at Inverclyde Hospital for 30 years. He has very considerable experience of asbestos related diseases. He had examined the deceased's medical records after his death. He outlined the deceased's medical history. This included hypertension, obesity, atrial fibrillation, a history of smoking cigarettes for about three years when he was a young man, and diverticulosis. While his initial evidence was that, taken individually, none of these factors would have reduced the deceased's life expectancy below the average of 19 years, ultimately he accepted that it would be reasonable to reduce that estimate to 17 years to take account of their combined effect. I accept that. I proceed on the basis that but for his mesothelioma the deceased's life expectancy would have been a further 17 years.
Interest
[9] I record at this point that Mr McGregor submitted that interest on damages should run from 1 January 2010. The basis upon which he did so was that had the deceased's claim been intimated in January 2007, and the relatives' claims soon after his death, they could have been settled or come to proof by May 2008. It was not suggested that there had been inordinate delay on the part of the pursuers, or that the action had been unnecessary.
[10] Mr Marshall resisted Mr McGregor's suggested approach. There was no good basis for acceding to it. Those acting for the pursuers had sought to intimate a claim to the second defenders some three weeks before the deceased's death: but it had turned out that the address had no longer been an appropriate one. There had been intimation to the first defenders and their insurers at that time. Thereafter a pre-summons letter had been sent to the second defenders about a fortnight before the action was raised.
[11] I am not persuaded that I should follow the course suggested by the second defenders. The action was necessary. There was no inordinate delay in pursuing it. In my opinion the circumstances mentioned by Mr McGregor do not justify any modification of the ordinary approach to the award of interest.
The first pursuer's claim as Executrix
Solatium
[12] The deceased was advised of the diagnosis - and of the prognosis - about seven months before his death. He suffered the rapid decline characteristic of mesothelioma. In Dr Semple's view his survival time from diagnosis was about average, but the history of increasing analgesia suggested his pain was worse than that experienced by the vast majority of mesothelioma sufferers, and that it was not well controlled despite the best efforts of those treating him. I accept that evidence.
[13] On behalf of the first pursuer Mr Marshall submitted that an appropriate award for solatium would be £65,000. Mr McGregor suggested an award of £60,000. Having regard to the exceptional pain suffered by the deceased I shall award £65,000. Interest shall run on the whole sum at 4 per cent per annum from 1 May 2006 until the deceased's death and at 8 per cent per annum thereafter.
Section 8 services
[14] Before her retirement the first pursuer had been a social worker at Crosshouse Hospital dealing with care of the elderly and terminally ill. She provided the vast majority of the deceased's care during his illness. His needs - and the services provided to him by the first pursuer - increased as the illness progressed. Particularly towards the end of the deceased's life, the first pursuer was assisted by other members of the family. I was asked to award a sum representing reasonable remuneration for the services rendered and reimbursement of expenses incurred. I was asked to make a global award. I was informed that it was unnecessary for me to provide any indication of the extent to which the relevant services were provided by individual relatives.
[15] Mr Marshall suggested that an appropriate award for this head of damages would be £19,250. That figure represented £300 per week for the nine weeks of July and August 2006, £400 per week for the following 17 weeks, and £750 per week for the final thirteen weeks of the deceased's life. Mr McGregor submitted that a broad approach had to be taken. There had been not been detailed evidence of the hours spent by the first pursuer and other relatives caring for the deceased, nor had there been any evidence of rates of remuneration paid to carers. Account required to be taken of the time that the first pursuer would have devoted to the deceased had he not contracted mesothelioma. Using the award in Renfrew v Lithgows 2009 Rep LR 19 as a guide he maintained that a fair award in this case would be £9,707.43.
[16] I agree that I require to make a broad assessment of this element of the claim. While I do not have detailed evidence of the number of hours each day spent by the first pursuer and other family members it is very clear to me that the first pursuer did her utmost throughout the deceased's illness to meet all his needs: and that as the illness progressed this became increasingly demanding. Other family members did what they could to assist her but she bore the brunt of it. In all the circumstances I consider that £13,500 is a suitable award. Interest should run on that sum at the rate of 4 per cent per annum from 1 July 2006 until the deceased's death and at 8 per cent per annum thereafter.
Section 9 services
[17] Between about July 2006 and his death the deceased was unable to do household maintenance and repairs or to carry out his share of household duties. Prior to his illness his contribution in both respects was significant. I award the sum of £1,500 in respect of the loss of those services prior to the deceased's death. Interest should run on that sum from 1 July 2006 at the rate of 4 per cent per annum until the date of his death and at 8 per cent per annum thereafter.
Funeral expenses
[18] The funeral account was £2,749. £1,000 was paid to account on 3 April 2007 and the balance was paid on 21 April...
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