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Ryan & Ors v Fairfield Rowan Ltd [2004] ScotCS 185 (29 July 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD DRUMMOND YOUNG

in the cause

AGNES McDONALD RYAN &C.

Pursuers;

against

FAIRFIELD ROWAN LIMITED

Defenders:

________________

Pursuers: Marshall; Thompsons

Defenders: G. Clarke; Biggart Baillie

29 July 2004

[1] The first pursuer is the widow of the late John Ryan, who was born on 2 February 1921 and died on 27 August 1999, aged 78. She is also his executrix dative conform to confirmation in her favour dated 20 August 2001. She sues both as executrix and as an individual. The second, third and fourth pursuers are respectively the daughter, son-in-law and son of the deceased and the first pursuer. The claims made by those pursuers have all been settled, and it is accordingly unnecessary to discuss them further.

[2] The defenders were formerly known as David Rowan & Co Ltd. The late Mr Ryan was employed by them as a rigger between about 1954 and 1961. It is a matter of agreement between the parties that in the course of his employment with the defenders he was exposed to substantial quantities of respirable asbestos dust. It is further agreed that this exposure to asbestos was negligent on the part of the defenders, and that as a result of the exposure to asbestos the deceased developed malignant pleural mesothelioma.

[3] A proof took place on the amount of damages to which the first pursuer was entitled in consequence of the defenders' negligence, both as an individual and as executrix. Two specific issues were in dispute: the cause of Mr Ryan's death and Mr Ryan's life expectancy immediately prior to his death in the absence of mesothelioma. In addition, the parties were in dispute as to five of the six heads of loss that are claimed by the pursuer. It is convenient to deal with the two specific issues first, and thereafter to consider each of the six heads of loss that are claimed.

Cause of death
[4] After Mr Ryan's death, a post mortem was conducted by Dr Ian Gibson, a consultant pathologist at the Victoria Infirmary in Glasgow. The post mortem report certified the cause of death as follows:

"1A Aspiration pneumonia

1B Malignant mesothelioma

2 Ischaemic heart disease".

Dr Gibson's opinion, based on his findings at the post mortem examination, was that

"1. Death in this case is the result of aspiration pneumonia secondary to the presence of a left pleural malignant mesothelioma.

2. There is ischaemic heart disease with a recent myocardial infarction of the lateral wall of the left ventricle and coronary artery atheroma.

3. There is evidence of exposure to asbestos, with asbestos fibres identified in lung tissue, consistent with the history of occupational asbestos exposure".

It is accordingly clear that in Dr Gibson's opinion the primary cause of death was the malignant mesothelioma, which led to aspiration pneumonia. Ischaemic heart disease (coronary artery disease) was seen as a secondary feature.

[5] For the pursuer, evidence was led from Professor Andrew Peacock, a consultant respiratory physician and professor at Glasgow University who had examined Mr Ryan in May 1999, some three months before the latter's death. Professor Peacock concurred with Dr Gibson's opinion. He explained that the aspiration pneumonia had two relevant causes. First, the mesothelioma caused a restriction to the motion of the chest wall, which meant that Mr Ryan could not breathe properly and was thus less able to expel bacteria and viruses that entered his lungs. There was accordingly a greater risk of chest infection. Secondly, drugs such as morphine were administered to deal with the pain and breathlessness resulting from the mesothelioma, and these tended to suppress breathing. That also increased the risk of chest infection. In this way the aspiration pneumonia could be seen as caused by the mesothelioma. Evidence was also led from Dr Rodney Burnett, a consultant pathologist at Glasgow University and the Western Infirmary who specialised in diagnostic histopathology. He had carried out the histological examination following Mr Ryan's death and prepared a report on that matter. He stated that there was clear evidence of aspiration pneumonia, in the form of identifiable food particles in the tissue of the lungs. Aspiration pneumonia mainly results from the reduction of reflexes in people who are very ill, especially if they are suffering from oesophageal or respiratory dysfunction. Dr Burnett also gave evidence of the histological signs of malignant pleural mesothelioma in Mr Ryan. He indicated that Dr Gibson's report was of more use than his own because it dealt with the general processes involved in Mr Ryan's death rather than merely the histology. He described Dr Gibson's report as "a good report", and indicated that it coincided with his own report. Neither Dr Gibson nor Dr Burnett had found any evidence that Mr Ryan had died of heart failure.

[6] For the defenders evidence was led from Dr Frank Moran, who was now retired but had been a consultant respiratory physician in Glasgow Royal Infirmary. Dr Moran had developed the Department of Respiratory Medicine in Glasgow, and undoubtedly had great experience in that field. He expressed the view that Mr Ryan had died of cardiac disease, probably together with heart failure, rather than aspiration pneumonia consequential upon mesothelioma. Mr Ryan had an enlarged heart at the time of his death and for some years had suffered from ischaemic heart disease. He had suffered at least one relatively recent heart attack, at least 14 days before the date of death; Dr Moran thought that that should have been included as a contributory cause of death in the post mortem report. In addition, oedema had been found in the lungs, and Dr Moran gave a detailed explanation as to why that was consistent with cardiac failure; essentially, if failure occurs on the left side of the heart the result is an increase in blood pressure in the lungs, which causes fluid to escape into the lungs. Dr Moran accepted, however, that no clinical finding had been recorded that indicated cardiac failure except for breathlessness, and that could be explained in other ways. He accepted that Mr Ryan had suffered from aspiration pneumonia at the time of his death, and that the mesothelioma had possibly contributed to that. He also considered that the malignant mesothelioma was causally relevant to the death, and accepted that it would produce a general weakening.

[7] In my opinion the explanation of Mr Ryan's death put forward in the post mortem report and supported by the evidence of Professor Peacock and Dr Burnett is to be preferred. The post mortem report itself is quite clear. That report represents the considered findings of Dr Gibson, the pathologist who carried out the post mortem examination. As such it is entitled to very great weight in its own right. In addition, it is supported by Professor Peacock and Dr Burnett, both of whom I found to be convincing witnesses who provided coherent explanations for their views. By contrast, I found that the evidence relied upon by Dr Moran was relatively slight. It indicated that Mr Ryan suffered from ischaemic heart disease, but it does not follow that that was the cause of his death. The evidence relating to oedema in the lungs was consistent with cardiac failure, but against that must be set the clear findings of the pathologists who carried out the post mortem examination and relative histological examination. I find the latter evidence to be substantially more convincing. I accordingly find that Mr Ryan's death was caused by mesothelioma.

Mr Ryan's life expectancy

[8] The second issue in dispute was Mr Ryan's life expectancy in the absence of mesothelioma. Professor Peacock expressed the view that it was appropriate to start with the figure in the current Ogden tables relevant to Mr Ryan's age at death, 78. That figure should be reduced to take account of the fact that Mr Ryan had been a lifelong smoker. Professor Peacock stated that respiratory physicians normally subtracted one year in such a case. Professor Peacock thought that that was appropriate in Mr Ryan's case. When he examined Mr Ryan three months before his death, he had found that the principal problem was a restriction to the motion of the chest and a thickening of the lining of the wall of the chest, both of these having been brought about by the mesothelioma; mesothelioma involves a tumour of the lining of the chest wall which restricts the motion of the chest wall. Professor Peacock had carried out lung function tests, which proved to be largely normal. In particular, the amount of air breathed in and out was normal. Mr Ryan's ability to take gas into his bloodstream was slightly reduced, but that in Professor Peacock's opinion was due to the abnormality of the chest wall brought about by the mesothelioma. Professor Peacock's finding was accordingly that there was virtually no evidence of impairment of lung function other than the results of the mesothelioma. The subtraction of one year from Mr Ryan's life expectancy did not take account of the number of cigarettes smoked per day, which Professor Peacock accepted was relevant to the effects that smoking would have on a particular individual. He thought, however, that any variations in the life expectancy of a particular person who had been a lifelong smoker should be determined by consideration of the specific medical problems that that person had that were attributable to smoking.

[9] Mr Ryan suffered from a number of medical problems other than mesothelioma. He suffered from ischaemic heart disease and high blood pressure, and had suffered a heart attack some time before his death. These could all be attributable, at least in part, to smoking. On the basis of his examination of Mr Ryan and review of Mr Ryan's general medical notes, Professor Peacock expressed the view that in the latter part of Mr Ryan's life his raised blood pressure was kept under control with some degree of success. Consequently his life expectancy should not have been reduced on account of that factor. In cross-examination, Professor Peacock accepted that Mr Ryan's blood pressure had been variable, but thought that in general it had been better during the last two years of his life; he accordingly adhered to his original opinion. A heart attack had been recorded, but the details of it were not clear. Mr Ryan had suffered from ischaemic heart disease for a number of years; it affected all three of the coronary arteries. Professor Peacock described the ischemic heart disease as moderate. He accepted that the abnormalities in the coronary arteries were significant, but stated that the function of the heart on examination was normal, and that Mr Ryan had received no medication for his heart. When those factors were taken into account, Professor Peacock considered that the loss of life expectancy on account of the ischaemic heart disease should be between zero and two years.

[10] Mr Ryan also suffered from emphysema, which can be attributable to smoking. This involves a dilation of the air spaces in the lungs, and manifests itself by breathlessness. If it is widespread, there is a decreased ability to take oxygen from the lungs into the bloodstream, which is the reason for the breathlessness. Professor Peacock's view was that any reduction in life expectancy as a result of emphysema depended upon the severity of the complaint. That is measured by lung function tests. Mr Ryan had undergone such tests on two occasions, and they had been normal. He accordingly considered that from a physiological point of view the emphysema was insignificant. In view of the tests carried out, I accept that view. Finally, the post mortem disclosed that Mr Ryan's kidneys showed hyaline arteriosclerosis, consistently with the presence of high blood pressure, and certain mild secondary complaints. Professor Peacock stated that this had not been evident during Mr Ryan's life, and his kidney function had appeared normal. He would not expect this to affect Mr Ryan's life expectancy.

[11] Dr Moran, by contrast, considered that Mr Ryan's life expectancy without the mesothelioma was one year or less. In advancing that view he took account of the fact that Mr Ryan had been a lifelong smoker, smoking 20 cigarettes per day. He further took account of Mr Ryan's high blood pressure and the conditions that go along with it, including widespread atheroma (vascular disease), coronary artery disease, at least one episode of cardiac damage and kidney disease. Dr Moran also referred to Mr Ryan's emphysema and lack of mobility as adverse factors. He suggested that two sets of figures for life expectancy might be relevant. First, in one study it had been found that smokers aged 78 would expect a 50% mortality within 5 years. Secondly, according to another study a 78-year-old smoker had a life expectancy of two years. It was on the basis of these figures that he made his estimate of life expectancy. He attached particular importance to the fact that Mr Ryan had been a lifelong smoker, because the increase in male life expectancy in recent years has been attributed in large part to a major reduction in the number of smokers. That increase in life expectancy is reflected in the relevant Ogden tables.

[12] A court must inevitably take a broad approach to questions of life expectancy. Average figures are available, but individual life expectancy depends on a number of specific factors, none of which can be translated precisely into an increase or decrease of the average figure. In the present case I prefer the approach taken by Professor Peacock subject to one qualification: I consider that certain of the factors relied on by Dr Moran are sufficiently important to move the figure subtracted from average life expectancy to the upper and of the range suggested by Professor Peacock. My reasons for forming this opinion are as follows. In the first place, I thought Professor Peacock a careful and fair witness; moreover, he clearly had great experience in the field of respiratory medicine. In the second place, Professor Peacock had actually examined Mr Ryan prior to his death. In my opinion this gave him a great advantage, in that he was able to form a view based on examination as to the significance of Mr Ryan's medical problems other than mesothelioma. It is clear that Professor Peacock had taken advantage of his examination to make an individual assessment of Mr Ryan's life expectancy; this applied in particular to the lung function tests that he had carried out. I accordingly attached particular importance to this factor. In the third place, I thought that Professor Peacock had conducted a full and fair examination of Mr Ryan's medical records. This was relevant to the significance of his raised blood pressure, which Professor Peacock largely discounted because it had been kept under control with reasonable success. In the fourth place, Dr Moran considered Mr Ryan's life expectancy to be fairly close to zero. I thought that an extreme approach. That is especially so in view of the fact that Mr Ryan's condition was, as Dr Burnett pointed out, far from unusual for a 78-year-old man in the west of Scotland. In addition, the studies relied on by Dr Moran in relation to life expectancy were not produced. They related to smokers, and it seems inherently likely that they would therefore reflect, at least to some extent, the greater incidence of heart and artery disease among smokers than among the general population. I nevertheless had regard to Dr Moran's evidence, which was helpful in explaining the significance of the range of complaints from which Mr Ryan suffered. On the basis of that evidence, I am persuaded that Mr Ryan's ischaemic heart disease was significant, and that the figure subtracted from average life expectancy should be substantial.

[13] The figure for the life expectancy of a man of 78 in table 19 of the Ogden tables, that applicable as at the date of Mr Ryan's death, is 8.28 years. Professor Peacock suggested that one year should be subtracted from that figure on account of Mr Ryan's having been a lifelong smoker, and a further period of up to two years on account of his other medical problems. In my opinion the figure of two years should be deducted on the basis of those complaints in addition to the one year deducted because Mr Ryan was a life long smoker. To some extent this reflects the fact that Mr Ryan was a smoker, because it is clear that smoking can be a major contributory factor in, for example, ischaemic heart disease. I will accordingly subtract three years from the figure in the Ogden tables. That gives a figure very close to 5 1/4 years, which I hold to be Mr Ryan's life expectancy at death apart from the effects of mesothelioma.

Heads of loss

(i) Solatium payable to estate

[14] The deceased's right to solatium transmits to his executrix by virtue of section 2 of the Damages (Scotland) Act 1976. The relevant evidence was as follows. Mr Ryan was diagnosed as having mesothelioma in about June 1998. Over the period from then until his death, in August 1999, his condition deteriorated progressively. In particular, he suffered from increasing breathlessness and increasing levels of pain. He had some difficulty in eating and lost weight. By May 1999 he required to use a wheelchair to go outside the house. From April 1999 onwards he underwent morphine therapy, which is itself clearly unpleasant; in addition, such therapy caused constipation and its attendant discomfort. The first pursuer, Mrs Ryan, gave evidence that her husband had suffered a change of mood. He had been good tempered, but he became liable to lose his temper very readily, in such a way that his family did not know what was going to happen next. During Mr Ryan's illness it had been necessary to watch him as he moved about the house, especially going up and down stairs. Mr Ryan had had great difficulty sleeping, and required to have two fans operating in his bedroom to help him to sleep. As a result Mrs Ryan had required to use a separate bedroom. Eventually it had been impossible to cope with Mr Ryan at home, and he had had to move into hospital. The medical records indicated that in the later stages of his illness Mr Ryan was very agitated indeed. Indeed, it is clear that the later stages of mesothelioma were extremely distressing. The distress was increased by the fact that Mr Ryan had a close family relationship with his son, daughter and grandchildren as well as his wife, and that affected his own perspective on what was happening.

[15] Prior to his death Mr Ryan signed a statement dealing with his condition at that time, the statement having been signed on 22 January 1999. In the statement he refers to the medical investigations that took place in November 1998, and stated that he was then told that he had approximately a year to 18 months to live. Initially he was shocked to hear this, but by the time of his statement he had more or less accepted the news. He commented that sometimes he took it out on his wife. He stated that he had enjoyed carrying out jobs around the house but had had to give that up owing to his breathlessness. He had lost 21/2 stones in weight, and had difficulty coping with stairs and hills.

[16] I was referred to two cases, McManus's Executrix v Babcock Energy Ltd., 1999 SC 569, and Murray's Executrix v Greenock Dockyard Co. Ltd., 2003 Rep LR 115. In the former case the deceased was 55 at the date of his death. Prior to the onset of symptoms of mesothelioma he had been fit and active, in full-time employment. He had a close relationship with his family. His life expectancy at death, apart from the mesothelioma was assessed at 14 or 15 years. The deceased had begun to feel run down approximately 18 months before his death. Approximately one year thereafter his condition became significantly worse, and he consulted his general practitioner and was referred to specialists, who diagnosed him as having mesothelioma. Thereafter he underwent significant surgery in the hope that it might prolong his life by some three years, but the operation was not successful because the tumour had spread too far. Thereafter the deceased underwent chemotherapy over a period of three months or so and was prescribed painkilling drugs, which only had limited success. The chemotherapy produced unpleasant side effects. The treatment was not successful and the deceased went rapidly downhill, suffering very severe pain. The court awarded solatium of £50,000. After allowing for inflation, that figure should be updated to £55,500. In Murray's Executrix, the deceased was aged 63 at death. He had been a heavy smoker and suffered from chronic bronchitis and emphysema. He had also been a heavy drinker. The court assessed his life expectancy at death at 61/2 years, excluding the effects of mesothelioma. The solatium awarded was £47,500. The temporary Lord Orderly pointed out that the level of distress suffered by the deceased was less than that in McManus' Executrix. In addition, the deceased's state of health was considerably worse, and his life expectancy considerably lower. The effects of the disease were probably somewhat less as well.

[17] The solicitor for the pursuer submitted that in the present case the award should lie between those in McManus' Executrix and Murray's Executrix. The effect on the deceased had not been as great as in the former case, and he had not undergone any operation or chemotherapy treatment. The other medical conditions from which Mr Ryan suffered were not as severe as those involved in Murray's Executrix. An award of £51,500 was suggested. Counsel for the defenders submitted that the award should be substantially lower than in either of these cases. Mr Ryan had been more than 20 years older than the deceased in the former case and 15 years older than the deceased in the latter case. In addition, the deceased's other conditions, which Dr Moran had described as life-threatening, should be taken into account. Counsel suggested that an award between £30,000 and £35,000 would be appropriate.

[18] In my opinion an appropriate award would be £47,500. That is the same as the amount awarded in Murray's Executrix. While the deceased in that case was younger than Mr Ryan, his life expectancy apart from the mesothelioma was assessed at 61/2 years, which is not a great deal more than the figure of 51/4 years that I have placed on Mr Ryan's life expectancy. Neither man was in good health apart from the mesothelioma, but I consider that Mr Murray's condition was to a material degree worse than Mr Ryan's; that, I think, broadly compensates for the difference in life expectancy. The deceased in McManus' Executrix, by comparison, had a life expectancy of approximately 20 years, and clearly enjoyed good health apart from the effects of the mesothelioma. In addition, the deceased in that case underwent an operation and chemotherapy, which must have increased his distress, not least because his hopes were raised for a time and then disappointed. For these reasons I consider McManus' Executrix to be a somewhat more serious case. Counsel for the defenders attached considerable importance to the medical conditions other than mesothelioma from which Mr Ryan suffered. I consider, however, that for the purpose of comparing awards of solatium these are adequately taken into account in the manner suggested above; the award should, principally reflect the deceased's loss of the years of life that he would probably otherwise have enjoyed, with some allowance for his state of health. Counsel also submitted that the deceased in McManus' Executrix had suffered considerably more distress than Mr Ryan, or indeed Mr Murray. While there is some basis for that suggestion in the reports of the two earlier cases, I do not think that this is a matter that is of great significance. The assessment of relative levels of distress is extremely difficult, and the impression formed of a prior case may be affected by the language used by the judge in his description of events. The fact is that mesothelioma is an exceptionally unpleasant and distressing condition, in virtually every case. For that reason I do not think that fine distinctions can be made in assessing relative levels of distress. Interest will run on the figure of £47,500 at 8% from the date of Mr Ryan's death. That interest will be compounded at the date of decree, and interest at 8% will run on the resulting sum.

(ii) Services to deceased: Administration of Justice Act 1982, section 8

[19] Mrs Ryan gave evidence about the care of her husband during his illness. From June 1998, when Mr Ryan was first diagnosed as having mesothelioma, she provided considerable care for him until he went into hospital. While much of what she did consisted of emotional and psychological support, I do not think that services of that nature should be undervalued in a case such as the present. Heavier tasks, such as bathing, were performed by visiting nurses, and latterly the nurses helped to dress Mr Ryan. Medical and nursing staff also played an important part in ensuring that Mr Ryan took the medication that he had been prescribed; this was necessary because of the importance of providing the correct dose. Nevertheless, it is clear that Mrs Ryan performed many tasks for her husband about the house. The Ryans' son and daughter were also involved in looking after their father. From about May 1999 their daughter took Mr Ryan out in a wheelchair two to three times per week, and during the same period their son came to the house and sat for substantial periods with his father. That kept him company, and took some of the strain of looking after him off Mrs Ryan. Thus two distinct levels of additional care were provided to Mr Ryan. The first, from June 1998 to April 1999, involved increased levels of support, from Mrs Ryan in particular. During the second period, from May to August 1999, much higher levels of care was provided by both Mrs Ryan and the Ryans' son and daughter.

[20] No evidence was led as to the valuation of such services, and in view of the guidance provided by the decided cases it is unnecessary that such evidence should be led in cases where the services are provided by members of the deceased's family. I was referred to three cases on this matter. In Farrelly v Yarrow Shipbuilders Ltd., 1994 SLT 1349, the deceased's widow rendered services that consisted essentially of supporting her husband emotionally and psychologically rather than physically. That to some extent resembles the present case. It was not seriously disputed that services of that kind could fall within the ambit of section 8, and Lord Prosser made an award for those services. During the period of general care, of an essentially emotional and psychological nature, Lord Prosser awarded £50 per week. A higher amount, £145 per week was awarded for a later period when the amount of care provided by the family was likely to rise substantially, to somewhere between two and six hours per day. After allowing for inflation, the figure of £50 per week would increase to £64.50 per week. In McManus' Executrix, supra, substantial services were provided by the deceased's wife. Lord Kingarth awarded £100 per week for the period prior to the deceased's receiving chemotherapy. The services involved were essentially an increased level of fetching and carrying in the house and transport to and support during medical appointments and hospital visits. In broad terms, that level of support probably falls midway between the two periods of Mr Ryan's care, that from June 1998 to April 1999 and that from May to August 1999. The third case to which I was referred on this matter was Murray's Executrix, supra. In that case £200 per week was awarded for the services provided by the deceased's wife. She had organised her day so that she could be with her husband for most of the time and give emotional support. She drove him to hospital on many occasions, and performed extensive domestic services, and latterly helped him in and out of the lavatory. She also sponged him down when he sweated profusely at night. The temporary Lord Ordinary pointed out that it is extremely difficult to find nursing care of the same quality as that provided by a devoted and loving wife, who is essentially on call 24 hours a day even though the actual services that she provides may last for only a small part of the time. I agree with that comment. In the present case, the level of care provided by Mrs Ryan during the period to April 1999 was clearly somewhat less than that taken into account in Murray's Executrix, although still far from negligible. During the period from June to August 1999, the level of care provided by the family as a whole, including the Ryans' son and daughter, appears to have been broadly comparable.

[21] For the first pursuer it was submitted that the appropriate level of award should be £50 per week, as in Farrelly, for the period from June 1998 until April 1999, and £200 per week for the period from May to August 1999. That gives figures of just over £2,000 for the former period and £3,400 for the latter period. Counsel for the defenders accepted that an award of between £3,000 and £5,000 would be appropriate. My approach to this question must inevitably be somewhat broad. In all the circumstances, however, I consider that an award of £5,000 would be reasonable. Interest will run on that some at 8% from the date of death, such interest being compounded at the date of decree.

(iii) Funeral expenses

[22] The parties were agreed that the expenses of Mr Ryan's funeral amounted to £1,561.68, and that the first pursuer as executrix was entitled to that sum. I will accordingly pronounce decree for that amount, with interest at 8% from the date of Mr Ryan's death, compounded at the date of decree.

(iv) Claim by widow under section 1(4) of the Damages (Scotland) Act 1976

[23] Mrs Ryan was the same age as her husband. They had married in January 1954, and had thus been married for more than 45 years at the date of his death. They had two children and four grandchildren. Mrs Ryan described her husband as a very good person and their marriage appeared to have been happy. I was satisfied on the basis of Mrs Ryan's evidence that she had suffered distress and anxiety as a result of her husband's illness and suffering prior to his death, and grief and sorrow as a result of his death. I was also satisfied that she had missed her husband's society after his death. While she was not the most forthcoming of witnesses, I think that her distress and sorrow were clear, as was the fact that she had missed her husband since his death. An important element in the distress that she suffered prior to her husband's death was that, from being an even tempered man, he had become very short tempered, with the result that she did not know how he was going to react from one moment to the next.

[24] I was referred to a number of cases on section 1(4). In McManus' Executrix, supra, the deceased was aged 55 at death and his widow 57. Apart from his mesothelioma the deceased had enjoyed good health, and was fit and active. His mesothelioma was known about for approximately eight months prior to his death, and during part of that period he underwent surgery and chemotherapy. The deceased and his wife were close to each other. The award made under section 1(4) was £20,000; updated for inflation, it would be £22,200 . In Shaher v British Aerospace Flying College Ltd., 2003 SLT 791, the parents of a 19-year-old who died in a flying accident were each awarded £20,000. The solicitor for the present pursuers submitted that awards to spouses under section 1(4) were usually somewhat greater than those made to parents. Whether or not that is so, I consider that significant differences exist between the two types of case, and awards to parents are unlikely to be a very reliable guide to an award to a surviving spouse. In Murray's Executrix, supra, the deceased was aged 63 at death and his widow was the same age. Apart from the mesothelioma the deceased had not been in particularly good health. The couple had been close to each other, although the temporary Lord Ordinary described the widow's grief and suffering as "real but not extreme". The award made under section 1(4) was £20,000; McManus' Executrix was followed, but the award was slightly reduced (after allowing for inflation) for two reasons: the deceased in that case had been a fit and healthy man prior to developing mesothelioma, and the last eight or so months of his life were particularly tragic. Finally, McLean v William Denny & Bros Ltd., 5 December 2003, involved the death through mesothelioma of a man then aged 75. His widow was four years younger. They had been married for 55 years. The deceased had been significantly unwell for approximately one year prior to his death, although malignant mesothelioma was only diagnosed some five months before the death. Lord Cameron of Lochbroom awarded £28,000 under section 1(4).

[25] For the first pursuer, an award of £30,000 was suggested on the basis of the foregoing authorities. Particular reliance was placed on McLean. For the defenders an award of £15,000 was suggested if Dr Moran's evidence on life expectancy was accepted; if not, it was suggested that an award of up to £17,000 would be appropriate. Counsel accepted, however, that if McLean were followed that would have an impact on his figures. In my opinion the facts of McLean come closest to those of the present case. In each case the deceased and his widow were both elderly; they had been married for a very long time; and the consequences of the mesothelioma do not appear to have been greatly different. One difference is that the deceased in McLean kept fit, and appears to have enjoyed fairly good health. Mr Ryan, by contrast, was not in good health apart from the mesothelioma although, as I have already remarked, his state of health was far from unusual for a 78-year-old man living in the west of Scotland. In addition, it is clear that Mr Ryan was active around the house. Consequently I do not think that the differences in the states of health of the two men are of great significance, and I consider that the award made in McLean is a direct pointer to the present case. I will accordingly award £28,000 under section 1(4). So far as interest is concerned, I consider that two thirds of the award under section 1(4) should be attributed to the past; that is more than was so attributed in McManus' Executrix, but the life expectancy of both the pursuer and the deceased was significantly greater in that case than the present, with result that the future element was clearly greater. Interest at 4% will run on two thirds of the £28,000 from the date of death. Such interest will be compounded on the date of decree, and interest will run at 8% thereafter.

(v) Claim by widow for loss of support

[26] It was agreed that the multiplicand should be £2,224.60 per annum. The parties disagreed as to the multiplier, however. Counsel for the defenders submitted that it should be very low, following Dr Moran's approach. The solicitor for the pursuers, by contrast, submitted that there should be little discount from the deceased's life expectancy, and suggested that a figure of six might be appropriate. The financial support provided by Mr Ryan was clearly based on his pension rights, which would subsist for the remainder of his life. On that basis, I cannot see any justification for using a figure other than his life expectancy; the only risk to the pursuer was that Mr Ryan might decide to reduce the level of support that he provided to his wife, but that possibility is, I think, so remote that it can be disregarded. For that reason I will apply a multiplier of Mr Ryan's full life expectancy as found above, namely 51/4 years. The resulting figure is £11,679.15, which I will round up to £11,680. Interest at 4% will run on £11,000, which reflects the period prior to decree. Interest will be compounded at the date of decree, and will run at 8% thereafter.

(vi) Claim by widow for loss of deceased's services: Administration of Justice Act 1982, section 9

[27] The evidence of Mrs Ryan was that her husband had helped with housework and in the garden, and was sufficiently fit for these activities before his illness. He had also carried out a certain amount of do-it-yourself work in the house; he mentioned that in his own statement. The solicitor for the pursuers submitted that £500 per annum was a realistic estimate of the value of those services. Counsel for the defenders accepted that such a figure was not unreasonable, but pointed out that, owing to Mr Ryan's age, the amount of work that he did would inevitably have been curtailed in future. I agree with the latter point, and I consider that the multiplier in this case should be substantially lower than Mr Ryan's life expectancy. In my opinion a reasonable multiplier would be three. I will accordingly award £1,500 under this head. I will attribute two thirds of that to the past. Interest will run at 4% on that amount from the date of death; such interest will be compounded at the date of decree, and interest will run at 8% on the resulting sum.

[28] The total award is accordingly as follows:

1. First pursuer as executrix dative:

(i)

Solatium to estate

£47,500.00

Interest thereon

£18,698.91

(ii)

Services to deceased: section 8

£5,000.00

Interest thereon

£1,968.31

(iii)

Funeral expenses

£1,561.68

Interest thereon

£ 614.77

Total

£75,343.67

2. First pursuer as an individual:

(iv)

Widow's claim under section 1(4)

£28,000.00

Interest thereon

£ 3,674.24

(v)

Loss of support to widow

£11,680.00

Interest thereon

£2,165.14

(vi)

Widow's loss of deceased's services: section 9

£1,500.00

Interest thereon

£ 196.83

Total

£47,216.21

[29] I will accordingly sustain the first pursuer's first plea-in-law, repel the defenders' first, second and third pleas-in-law, and pronounce decree for payment to the first pursuer as executrix dative of the sum of £75,343.67 and to the first pursuer as an individual of the sum of £47,216.21. Interest will run on those sums at 8% from the date of decree.