Scottish Court of Session Decisions

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Cite as: [2003] ScotCS 301

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Thorburn & Ors v. William Denny And Bros Ltd & Ors [2003] ScotCS 301 (05 December 2003)

OUTER HOUSE, COURT OF SESSION
A4405/01	OPINION OF LORD CAMERON OF LOCHBROOM in the cause MARION RENWICK THORBURN McLEAN AND OTHERS Pursuers; against WILLIAM DENNY & BROS. LIMITED AND OTHERS Defenders: ________________

 

 

Pursuers: Hajducki, Q.C., Christine; Thompsons

Defenders: Mackenzie; Biggart Baillie

5 December 2003

[1]      In this action for damages for personal injury arising from the death of the late Henry McLean on 18 June 2001, the sole remaining issue relates to that part of the widow's claim as an individual within the terms of the second conclusion of the summons for an award under section 1(4) of the Damages (Scotland) Act 1970 as amended. For the rest the parties have agreed by joint minute that the first pursuer's claim for loss of support is £15,000 inclusive of interest on the past element and for loss of section 9 services is £1500 inclusive of interest on the past element.

[2]      The only evidence led was from the first pursuer. She gave clear and honest evidence about the relationship between her and the deceased. The deceased was born on 23 May 1926. He married the first pursuer in about 1946 when he was 20 years old. She was then sixteen. It had been a very happy marriage. There were three children of the marriage. Others had commented upon the happy relationship between them. They enjoyed each other's company in many ways, socially and in outside activities, such as walking and gardening. The deceased, who liked to keep himself fit, also used to swim regularly each week. He did not smoke and drank within moderation. His medical records suggested that he had had chest pains associated with heart trouble prior to and around 1990 but the opinion was expressed that while he had mild angina, most of his chest discomfort was not anginal but related to tension or anxiety. It was noted at the time that he worried about his health. Some years prior to 2001 the deceased became aware that he had developed plaques on his lungs but at that time no malignancy was diagnosed. However in the course of the spring and summer of 2000 the first pursuer noticed that her husband was not as fit as before. He complained that he was very tired. He had required to take rest while on holiday in London. He became unable to garden. In about the summer of 2000 the first pursuer noticed that he had developed a cough different from that which he had suffered before. She was worried about his tiredness. Although at the time she thought it might be related to his age, I am satisfied that both she and her husband were aware of the risk that the plaques might develop into a malignant cancer and that this was an element in her anxiety. He had become increasingly breathless. I am satisfied that the foregoing symptoms of lack of fitness, coughing and tiredness were directly related to the onset of the condition of mesothelioma that was subsequently diagnosed. In November 2000 her husband was referred to hospital for x-ray examination. Subsequently in December 2002 he underwent pleural aspiration and a biopsy was undertaken. While no clear diagnosis was then reached, the first pursuer said that the doctor was very anxious about the condition. She described this period as being very anxious days for her husband and herself although there was no suggestion at that time that the condition was mesothelioma. The deceased continued to attend hospital at intervals for further investigation. While in hospital on 1 February 2001 the deceased was advised by a doctor that he had mesothelioma. The first pursuer described being told by her husband that he had bad news, that there was nothing more that could be done for him by way of treatment and that there was no hope for him. Both she and the deceased had been immensely distressed and had cried together. In the course of this conversation her husband had told her that he and she had had a great life together. Nevertheless he had been optimistic that there would still be time for them together to go off on holiday abroad. However the condition progressed rapidly. The deceased was fitted with a stoma bag to drain fluid from the lungs. These would leak onto their bed during the night and the bedclothes would have to be changed. They also irritated his skin. His sleep became increasingly interrupted. He became increasingly unable to care for himself. He became incontinent and required to wear pads. He increasingly suffered from loss of appetite. His incapacity got to the point where the first pursuer had to care for him wholly, including assisting his bowel and bladder functions. Although he required to visit hospital for examination and treatment on occasion, he preferred to remain at home so that the first pursuer was directly concerned in his care. Their bed had been brought down to the ground floor of their house because the deceased was unable to climb stairs. He was given painkillers from about February 2001 and latterly required continuous pain relief. About two days prior to 18 June 2001 the deceased had returned from hospital. On the evening of 17 June 2001, in the course of a visit from members of the family, he had retired to bed. The first pursuer joined him there later in the evening. She noticed that he was breathing with difficulty. His doctor was called and an ambulance was summoned. The deceased was taken to hospital. When there the first pursuer was asked if she wished her husband to be resuscitated. She was advised against this being done and assented. Death occurred shortly thereafter. The first pursuer described the difficulty and desolation of her life since her husband's death because of the close relationship between them throughout their long married life, notwithstanding that she had friends and family.

[3]      It is not disputed between parties that in regard to the award which I am invited to make, the first pursuer is entitled to compensation for each of the heads (a),(b) and (c) set out in section 1(4) of the 1970 Act as amended. As regards head (a), I am satisfied that there was substantial distress and anxiety endured by the first pursuer in contemplation of the suffering of her husband before his death and that this included an appreciable period of time prior to the actual intimation of a confirmed diagnosis in February 2001. As regards head (b), I am satisfied that the nature of death itself and the loss of her husband did cause and continue to cause the first pursuer very substantial grief and sorrow. As regards head (c), I take into account that the deceased appeared to be a fit and reasonably healthy man prior to the onset of the obvious symptoms of mesothelioma, that the first pursuer and he enjoyed a very close and happy relationship which would have continued in the normal course for a reasonable length of time but for his death. Taking all these factors together I am satisfied that the first pursuer is entitled to a substantial award of damages.

[4]      The principal debate before me related to the measure of damages and to the proper yardstick to be applied. There was a wide divergence in the figures thrown up by the submissions. While each case must be determined by reference to its own facts and circumstances, I consider that from the decided cases to which I was referred certain general considerations emerge. In the first place, I have in mind the point noted in Shaher v British Aerospace Flying College Ltd. 2003 SLT 791 that the court is encouraged to look for guidance to jury as well as to judicial awards of damages. In the second place, I agree with the comment of Temporary Judge Reid in Murray and Others v Greenock Dockyard Company Limited (4 June 2003 unreported) in relation to section 1(4) awards to the effect that neither jury awards for the death of a child of whatever age nor awards to children of whatever age for the death of a parent are directly relevant when considering a claim by a widow for the death of her spouse. It can, I consider, reasonably be maintained that looking to awards so far as bereavement generally are concerned, there is a discernible difference in the pattern, and hence the level, of awards, both jury and judicial, between those three categories of awards to the effect that awards for widows tend to be higher than those for the two remaining categories - see the relevant lists of awards for these categories in Paton and McEwan on Damages.

[5]      For the first pursuer, counsel placed much emphasis was upon the effect of the decision of the Inner House in Shaher as leading to a conclusion that there was now good reason to look for a substantial increase in awards for widows. He suggested that something of the order of at least two to three times, if not more, over the level to be derived from cases such as McManus and Others v Babcock Energy Ltd. 1999 SC 569 (£20,000) and Murray and Others (£20,000), was appropriate. I do not in any way demur from the general analysis of a claim such as the present which was undertaken by Lord Kingarth in McManus and Others. On the other hand the base figure of £15,000, upon which the award was made in that case, requires to be considered afresh in the light of subsequent awards for bereavement. No relevant or more recent jury awards were cited to me other than those referred to in Shaher. I consider that it is of some significance that in Shaher the Lord Ordinary's award of £35,000 to each parent for the death of an adult child was reduced to £20,000. In reducing the award the Inner House had regard to the award made to a widow in, amongst other cases, McManus and Others and by the jury in Kempton v British Railways Board (noted by Lord Kingarth in McManus and Others). In doing so, the Inner House was persuaded that the four bereavement awards made by juries in recent years did disclose a pattern which demonstrated that in that general area judges had indeed become "out of touch with awards made by juries in the exercise of their proper function" - to quote Lord Hope of Craighead in Girvan v. Inverness Farmers' Dairy 1998 SC (HL) 1. Further and in any event some account has to be taken of the fact that it is four years since the award in McManus and Others was determined.

[6]      In the circumstances of the present case, I consider that the sum of damages which would be just by way of compensation to the first named pursuer under the three heads which have been established for the purpose of an award in terms of section 1(4) of the 1970 Act as amended, is £28,000. Parties were agreed that one-half of that sum, £14,000, should be related to the past. I would intend in the final decree that to order that interest run on the sum of £14,000 from the date of death until the date of decree at four per cent a year and thereafter on the full sum of £28,000 at eight per cent a year until payment.

[7]      However, the joint minute does not distinguish between principal and interest to date in relation to either the award for loss of support or that for loss of section 9 services. Nor did I understand that the first pursuer had abandoned any claim for interest on either principal sum from the date of decree until payment. These are two of the elements which go to make up the sum to which the first pursuer will be entitled in full of the second conclusion of the summons. Since at this stage I am unable to calculate precisely what that sum should be, I shall put the case out by order to enable parties to make submissions on what is to be the total sum, incorporating all three elements of the first pursuer's claim relative to the second conclusion of the summons. Subject to what parties may otherwise submit, I would presently intend that the final sum should bear interest at the rate of eight per cent a year from the date of decree until payment.