11 November 2021

Charmaine Haggerty- Garton & Others v Imperial Chemical Industries Ltd

This judgment, handed down on 3rd November 2021, is a significant milestone in the development of mesothelioma claims within the United Kingdom as it marks the first time Scots Law has been applied within a mesothelioma case in the English courts.

The case was brought by the family of the late David Haggerty who worked at the ICI factory in Ardeer, Scotland in the 1970s and who died of mesothelioma in January 2019. It was claimed that ICI did not warn Mr Haggerty of the dangers of asbestos, nor did they provide any protective equipment to prevent the inhalation of asbestos dust. Prior to the trial liability was admitted and only quantum was in dispute at trial.

A dispute arose in relation to whether the applicable law should be that of the law of Scotland or the law of England. The claimants’ position was that the harmful act occurred in Scotland and therefore, despite the deceased having resided in England, the applicable law should be that of Scotland. Initially this was disputed, but days before the trial it was conceded by the Defendant that Scots law was applicable. Scots Law allows a ‘loss of society’ award under the Damages (Scotland) Act 2011, which is able to be claimed by certain member of the deceased’s immediate family, which in this case included his spouse, children, stepchildren, sisters, and grandchild. There is no equivalent in the Fatal Accidents Act 1976 and so claims of this type are more attractive to be litigated under Scots Law where family members are able to advance such awards.

In assessing the loss of society award in this matter, reference was made to the Damages (Scotland) Act 2011 and relevant Scottish authorities. The evidence presented at court was that whilst the first claimant had only met the deceased in 2015, it was apparent that they would likely have lived the rest of their lives together. Evidence was given regarding his involvement in his stepchildren’s life and that he adopted a “house husband” role in order that his wife could commence her work as a teacher. Evidence at the trial was also given regarding the deceased’s life expectancy should he not have developed mesothelioma. It was calculated he lost around 22 years because of the illness.

After consideration of the relevant case law, the judge concluded that the appropriate award was £115,000 for loss of society for the widow. This would be considered, in Scottish courts, as a generous award for loss of society. Awards over the last few years in mesothelioma cases have ranged from £75,000 (although now worth about £89,000) to £80,000 (with the oldest award now being worth about £99,000. In 2019 £75,000 was awarded to a widow in a medical negligence case (now worth around £80,000). The court would however also have had regard to jury awards such as the £120,000 awarded to a widow in Stanger v Flaws in 2016. The 22 year loss of life expectancy was presumably a factor. Often in mesothelioma cases the loss of life expectancy will be significantly less than that so there should be good arguments for lower sums being awarded.

The judge awarded £40,000 to each of the older stepchildren and £35,000 to the younger stepchild. This was to reflect the extent to which the deceased had become a father figure within their lives. Again, these are higher awards than we usually see in mesothelioma claims in Scotland.

We would expect that there will be a greater push for higher value awards in claims of this nature in the future. However, whether the level of awards granted by the courts in Scotland will be as high is another question. It remains the case that whilst this case was determined by means of Scots Law, it is an English case, and therefore not binding on the courts in Scotland. Judges and potentially juries in these types of cases must, therefore, consider whether they wish to accept an English decision on Scottish law.

The judgement can be accessed here: https://www.12kbw.co.uk/wp-content/uploads/2021/11/Approved-judgment-Hagerty-Garton-v-Imperial-Chemical-Industries-Final-Judgment.pdf

Contact:

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

Katherine Wade, Solicitor: kew@bto.co.uk / 0141 221 8012