04 October 2017

An opinion was issued by the Court of Session on 3 October 2017 in the case of George Manson & Others .v. Henry Robb Limited [2017] CSOH126 in relation to the assessment of damages for claims in terms of section 4(3)(b) of the Damages (Scotland) Act 2011.

Summary

The action concerned an action brought by the widow and sons of the late George Manson in relation to his development of mesothelioma and his subsequent death as a result as a result of his exposure to asbestos during the course of his former employment with the defenders.

Prior to commencement of the Proof, liability had been admitted by the defenders and agreement had been reached between parties in respect of other aspects of the claim.

The Proof proceeded in front of Lord Clarke solely in respect of the issue of the value of the loss of society claims for widow and sons in terms of Section 4 (3) (b) of the Damages (Scotland) Act 2011.

The deceased and his wife were married in 1957 and lived together until the deceased’s death at age 80.  The widow was 79 years old at the time of Proof and the sons were aged 55 and 59. They had lived all of their lives in the same home with him and their mother until his death.  All three pursuers gave evidence as to the closeness of the relationship enjoyed between them and the impact his death had on them.  No witnesses were led by the defenders.

The dispute between the parties related to the position to be adopted by the court to the pursuers’ section 4(3)(b) claims given the deceased’s advanced age at the time of his death, the particular closeness in this case of the relationship with his family and his life expectancy but for the mesothelioma.

Pursuers’ submissions

Senior Counsel for the pursuers relied upon the closeness of the relationship between the deceased and the pursuers; in particular, the fact that they had all lived with together meant that they had aware on ongoing basis of the deceased’s suffering, It was also clear from the evidence given by the pursuers that they had relied heavily on the deceased prior to his death more than would usually be the case. It was submitted that although the deceased was 80 years when he died and had been suffering from various other illnesses for some time, these factors should not significantly outweigh the extremely close relationship that all of the pursuers had with the deceased.

Senior Counsel for the pursuers relied on a number of previously reported decisions and jury award, in particular, the unreported jury award in the case of Stanger .v. Flaws from 2016 as the basis for arguing an appropriate sum to be awarded to a widow/widower in a fatal case in respect of a 4(3) (b) claim would be a six figure sum.

Defender’s submissions

Senior Counsel for the defender submitted that a level of consistency required to be achieved between awards made by juries on the one hand and those made judicially when assessing damages in cases such as this.  Further that circumstances could and did vary greatly from case to case and that the evidence showed a particularly close relationship of the pursuers with the deceased, the deceased’s symptoms had endured for a relatively short period of time albeit it would have been distressing. Consideration had to be given as to the age of the deceased on death, his life expectancy at that date and other illnesses suffered by the deceased.

Decision

Lord Clarke noted that in the present case there were two sets of factors which were of material importance in attempting to reach a figure for damages.  Firstly, the extremely close and long enduring relationship amongst all of the pursuers and the deceased and how that relationship operated in practice amongst them.  Secondly, the advanced age of the deceased at his death, his relatively short life expectancy, his other ill health as well as the ages of the pursuers themselves.  The cases to which he had been referred by Senior Counsel showed a range of judicial and jury awards in relation to claims such as this one however all differed from the present circumstances with regard to the age of the parties, the duration of the relationship and the life expectancy of the deceased at the date of death.

He awarded the sum of £30,000 each to the first and second pursuers as sons of the deceased and to the third pursuer, the deceased’s widow, he awarded £75,000. 

Conclusions

This decision reinforces the basic premise that each case requires to be assessed on its own facts and circumstances. Whilst there is a range of judicial and jury awards in relation to section 4(3)(b) claims to give guidance as to the assessment of damages, the nature of the relationship between the deceased and the pursuers requires to be balanced against factors such as the age of the deceased at death, duration of suffering and life expectancy.

Jennifer Stewart, Senior Associate, jhs@bto.co.uk, 0141 221 8012