[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKenzie v. Barclay Curle Ltd & Ors [2002] ScotCS 34 (7th February, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/34.html Cite as: [2002] ScotCS 34

[New search] [Help]

McKenzie v. Barclay Curle Ltd & Ors [2002] ScotCS 34 (7th February, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY PATON in the cause BRIAN McKENZIE, Pursuer; against (FIRST) BARCLAY CURLE LIMITED; (SECOND) P & O SHIPPING LIMITED; and (THIRD) UPPER CLYDE SHIPBUILDERS LIMITED, Defenders: ________________

 

Pursuer: Hajducki, Q.C.; Thompsons

First and Third Defenders: Bowen, Advocate; Biggart Baillie

 

7 February 2002

1. The pursuer was born on 6 March 1940. He was aged 61 at the date of the proof. He seeks damages from the first and third defenders in respect of their negligence in allowing him to be exposed to asbestos dust. The second defenders are no longer parties to the action, having been assoilzied in terms of Joint Minute number 20 of process.
2. Evidence was led from the pursuer, his wife Mrs. McKenzie (aged 52), Dr. Cowan (aged 53), a consultant radiologist, and Dr. Monie (aged 55), a consultant in respiratory medicine. On behalf of the defenders, evidence was led from Dr. Wightman (aged 59), a consultant radiologist, and from Dr. Moran (aged 71), a consultant in respiratory medicine.
3. Several matters were agreed. In particular, by Joint Minute number 34 of process, parties agreed that:

"The exposure of the pursuer to asbestos while in the employment of Barclay Curle Ltd., Fairfields and UCS was as a result of the fault, negligence and breach of statutory duty of the said employers and ... the first and third defenders accept liability therefor."

It was also agreed that a Report by Professor Sir Michael Bond dated 19 May 2000, and an undated report by Dr. Alan Wylie (numbers 26/1 and 30/8 of process respectively) should represent their evidence in the proof.

4. By Joint Minute number 38 of process, parties agreed that:

"In respect of any damages awarded, the first defenders shall be liable to the pursuer for 40% (forty per cent) thereof, and the third defenders shall be liable to the pursuer for 50% (fifty per cent) thereof."

It was also agreed that the services element of the pursuer's claim should be valued at £1,750, inclusive of interest to the date of decree.

5. The remaining issues were accordingly (1) the effect upon the pursuer of exposure to asbestos dust; and (2) the appropriate measure of solatium.

 

Pursuer's work history

6. At the age of sixteen, the pursuer became an apprentice fitter with the first defenders. In September 1962, after five years with the first defenders, he became a time-served engineer. He went to London and worked in small engineering companies. One of his friends persuaded him to go to sea, and he spent two years on board ships, employed by P.& O. Shipping Limited. He then returned to Scotland, and, after a brief period in a small engineering shop, worked in Fairfields shipyard (ultimately taken over by the third defenders). On leaving Fairfields, the pursuer was unemployed for a short period. He was then offered work by a personal friend, Ken Douglas, chairman of Upper Clyde Shipbuilders, the third defenders. The pursuer worked on board ships for about three and a half years. He then became a recruitment consultant, hiring draughtsmen and other white collar workers for the industry.
7. The pursuer described his exposure to asbestos during his working career. As an apprentice fitter with the first defenders, he worked near laggers. He and a fellow-worker constructed pipes, while laggers followed behind, wrapping the pipes in asbestos. The laggers used "monkey dung" or asbestos mixed with liquid. They used bandages dipped in asbestos powder. They used pre-formed sections of asbestos, which had to be cut down to size in the pursuer's vicinity. The pursuer often inhaled asbestos dust, mainly in the engine room, but also in other enclosed spaces.
8. When working for the third defenders, the pursuer was exposed to similar conditions.
9. Neither the first nor the third defenders provided health warnings, masks, exhaust or ventilating appliances, means of dampening down dust, or special cleaning facilities.
10. The pursuer estimated that of his five years with the first defenders, he spent about two and a half years working on ships, suffering heavy exposure to asbestos dust. In particular on one occasion he worked for eighteen months on board a ship. The other periods of work on board ship were shorter, being periods of about six weeks, or two or three months. Of the remaining two and a half years, the pursuer worked in engine shops, where he described the exposure to asbestos dust as minimal compared with the exposure on ships.
11. When working for the London engineering companies, the pursuer was engaged in metal work and was not exposed to asbestos dust.
12. During the two years in the employment of P.& O., the pursuer was exposed to some asbestos dust, for example, when hacking off the cladding of a pipe to gain access to nuts and bolts. He thought that he had been exposed to asbestos for about 50 per cent of his working time with P.& O. The exposure was sometimes heavy, and sometimes minimal.
13. On his return to Scotland, the pursuer was initially not exposed to asbestos dust, as he was engaged in metal work in the small engineering shop. However when he moved to Fairfields in the late 1960s, he experienced his worst exposure to asbestos dust. He worked on board the HMS Antrim. Because the HMS Antrim was a warship, it had to be fireproof in all engine compartments. Considerable quantities of asbestos were used. The pursuer was engaged in installing engines, parts, and pumps, always being followed by laggers using asbestos. The pursuer said that the exposure to asbestos dust on HMS Antrim was much worse than any exposure he had experienced with the first defenders. He estimated that during 90 per cent of the time there was asbestos dust in the atmosphere. While he estimated the exposure with the first defenders as heavy, he described the exposure on HMS Antrim as drastic.
14. When working on ships in the job arranged by the UCS chairman Ken Douglas, the pursuer came into contact with asbestos, but not as much as previously. He estimated that of the three and a half years spent in that job, he had a total of one year's exposure to asbestos dust, when working on ships or in the engine room.
15. After leaving the third defenders, the pursuer had no further exposure to asbestos dust. He worked as a recruitment consultant for about eleven years. In 1984, the pursuer had an unfortunate experience when a business which he had attempted to set up failed. He subsequently worked for Motherwell Bridge Engineering for about two years, but was unable to meet targets because of health-related problems, including having to take time off for chest pain. He stopped working in 1986 at the age of 46. In 1993 he tried to return to work, but was rejected by several potential employers because of the diagnosis of asbestosis.

 

Pursuer's health

16. The pursuer suffered a variety of health problems over the years. In 1966 he was diagnosed as having a hiatus hernia. In 1967, he underwent gastric surgery for a duodenal problem. In 1979 he had an appendicectomy.
17. The pursuer first experienced breathlessness in the early 1980s. He also experienced chest pain. He was given no clear diagnosis in respect of the breathlessness. In relation to chest pain, he thought that he had been diagnosed as having angina. However medical opinion on that matter was unclear, one suggestion being that emotional stress was causing chest pain.
18. The pursuer continued to experience increasing breathlessness. He also suffered depression, high anxiety, and hypertension. Cholecystitis led to a cholecystectomy in 1990. At about that time, he gave up smoking: he had smoked about 60 cigarettes per week as a young man, and latterly about 20 cigarettes per week. The pursuer began to take antidepressant medicine, the need for which he attributed to his poor health and reduced lifestyle. He took an overdose on at least one occasion, but on admission to the Southern General Hospital he refused to see a psychiatrist.
19. In 1993 or 1994 the pursuer required further abdominal surgery, possibly in relation to peptic ulcers. According to the pursuer, he was left with constant nausea.
20. In 1993 the pursuer suffered a significant episode of breathlessness when pursuing his hobby of karate. He found that he could not continue with that sport. His breathlessness became progressively worse.
21. In 1994 the pursuer was initially told that he had a carcinoma, a diagnosis subsequently corrected to asbestosis. At some stage he also learned that asbestos-related pleural plaques had been noted in the 1980s, although he had not been advised of this. The pursuer's breathlessness did not improve, and he had to give up anything strenuous or physical.
22. In 1995 the pursuer experienced difficulties swallowing. He was investigated, and a sliding hiatus hernia noted, with some gastric reflux. The pursuer also had an operation for haemorrhoids.
23. In 2000, the pursuer was admitted to the Southern General Hospital with vomiting and epigastric pain.
24. By July 2001, the pursuer's lifestyle and activities were significantly restricted. He could walk about fifty to a hundred yards on a level surface, using a stick. He had to stop frequently. He slept on the settee downstairs as the bathroom was on the ground floor and he could not climb the stairs. His home was situated in a housing estate in a valley. In order to leave the housing estate, he had to negotiate a little hump-backed railway bridge. He found himself unable to do so, as the exertion made him feel ill. He was therefore obliged to take a taxi for the quarter mile to the shops. He tended to wake up each night, gasping for breath, and had to use his inhaler. He was suffering from loss of appetite, which he attributed to asbestosis. He had lost weight. He was three stone below his proper weight of thirteen stone. He sometimes lost his balance and fell, and his wife had to be present when he took a shower or a bath. He continued to take a variety of drugs, including an anti-depressant and a tranquilliser. He was no longer able to enjoy former pursuits such as karate, snooker or golf.

 

Effect of the diagnosis of asbestosis

25. When giving evidence, the pursuer appeared pale, depressed, and very anxious. He said "There isn't a day goes by when I don't think of mesothelioma. They show these things on TV: people dying with masks on their face ... Every day I get a little more breathless. I think I've got mesothelioma." He stated that he could not watch certain types of programme on TV. He had friends and workmates who had developed asbestosis or mesothelioma. He was afraid that his condition would deteriorate. "I'm terrified of dying that way, gasping for breath. It's a dreadful way to die." The pursuer became very upset and required an adjournment. On recommencing his evidence, he confirmed that he had other medical problems, but that these did not cause him to worry about his life the way asbestosis did.
26. The pursuer's wife, Mrs. McKenzie, stated that the pursuer had been devastated by the diagnosis of asbestosis. "He realised exactly what asbestosis meant ... he wouldn't get better, he would get worse." The pursuer had been very, very distressed. He had remained very depressed, and was a changed man. He often became distressed about the asbestosis. The trigger could be something read in a newspaper, or seen in a TV programme. In Mrs. McKenzie's view, the pursuer could cope with his other problems, but the asbestosis frightened him. It was the fact that he had asbestosis, and that there could be a progression to mesothelioma at any time. He dreaded dying of mesothelioma. He had changed from an outgoing man to someone restricted in his movements, frustrated, depressed, panicky when short of breath, morbid about the future, and needing her company not only in case he lost his footing but also to keep his spirits up. While Mrs. McKenzie had her husband in the sense of his physical presence, she felt that the man she had known was no longer there.
27. Professor Bond, in his report dated 19 May 2000 number 26/1 of process, recorded the pursuer's description of his emotional state following the diagnosis as follows:

"...Mr. McKenzie said that he has lived in constant fear of being told that he has cancer. Once that happens he said "I know I have just a few months to live." Each year he feels that he is worse than the last and recently has started dreaming about friends who have died. He said that in the day time he wallows in nostalgia. He commented 'I am preparing for death - I won't see sixty five'."

28. The pursuer had been tearful when being interviewed. Professor Bond described him as a very anxious person, with hypochondriac traits and a long history of emotional problems. Professor Bond concluded:

"Mr. McKenzie presents a very complex clinical problem, but I take the view that the revelation to him that he has evidence of asbestosis in his chest exaggerated significantly a very marked pre-existing chronic anxiety state to which there was a background of hypochondriasis, depression, and treatment for emotional problems dating to the 1980s, and possibly a decade before that.

Given Mr. McKenzie's age and emotional state, together with his physical difficulties, I do not believe that he is fit to work for gain, or that he will ever become fit to do so."

29. Dr. Wylie, in his report number 30/8 of process relating to an interview with the pursuer and Mrs. McKenzie on 12 October 2000, noted:

"In 1990, however, his mental state deteriorated, his mood becoming increasingly low and he experienced tearfulness together with depressive cognitions regarding having little future. He noticed a change in his appetite and lost weight. Sleep was disturbed with sleep reversal and his anxiety increased.

He tended to spend the night awake pacing around and sleeping during the day. He describes at this time anhedonia, a loss of interest in everything and diminished concentration. In association with this, he experienced panic attacks with tachycardia, tremulousness, sweating and the feeling of a need to escape. This was especially associated with being in crowds. This report is consistent with a depressive disorder and panic attacks and he attended his General Practitioner with regard to this. The GP started him on an anti-depressant, namely Amitriptyline, from which he felt some benefit after 3-4 weeks. Over 2-3 years, however, he felt it to be less effectual ...

In 1994, with continuing respiratory symptomatology, he was referred to the Victoria Infirmary and was assessed by a Dr. McIntyre. A junior doctor of Dr. McIntyre's apparently informed Mr. McKenzie that he was suffering from a form of cancer and Mr. McKenzie's response to this was being inconsolable and tearful with a marked increase in his anxiety and depressive symptomatology.

Two days following this initial diagnosis, he states he was informed by Dr. McIntyre that he did not suffer from cancer but asbestosis, but by his understanding, this would mean that cancer could occur.

Since that time, he has continued to experience depressive symptomatology with low mood, marked anxiety and panic attacks. These are associated with tachycardia, tremulousness, sweating, a feeling of needing to escape, particularly prevalent in crowds. He also experiences daily thoughts regarding his diagnosis, dreams regarding it, awakening during the night thinking about it, ruminating on his mode of death with vivid imagery of being in a chair with his face covered with a mask receiving oxygen and being in pain. He has anticipated that he will commit suicide prior to getting to that level. He also describes a lessening in his relationship with his wife and children, feeling separate from them and has tended to put a shell around himself, not wishing to see other people. He describes his mood as being low and still experiences tearfulness, being easily upset by "silly" things on the TV together with a variable appetite. More recently he had experienced difficulty in swallowing and 3 months ago began vomiting, losing about 11/2 stone in a period of 10 days. He was admitted to the Southern General and treated with intravenous fluids, underwent an endoscopy and discussed his problems with the consultant. He was diagnosed as suffering from anxiety and the consultant has suggested treatment with diazepam, an anxiolytic drug, which he has continued to the present time. He described this as resulting in a vast improvement with less vomiting and feeling calmer and having less difficulty swallowing ...".

30. Dr. Wylie summarised his opinion as follows:

"I am of the opinion that Mr. McKenzie continues to suffer from a depressive disorder with marked anxiety and preoccupation with his physical health.

I base this diagnosis on Mr. McKenzie's reported low mood, loss of interest and enjoyment and diminished energy leading to increased fatigability and diminished activity. He also describes reduced concentration, weak and pessimistic views to the future, ideas of suicide and disturbed sleep. He also describes anxiety, distress and agitation on occasions together with irritability and pre-occupations regarding his physical health. In addition, he describes a lack of enjoyment in life, weight loss, and loss of libido.

Other factors associated with the onset of the depressive disorder would be his predisposition to the development of this, given his history of anxiety and the chronic social difficulties he found himself in following being made redundant in 1986, his impaired physical health and the effect these factors had upon his activities and lifestyle.

It would thus appear that Mr. McKenzie's understanding that he suffers from asbestosis has contributed to a worsening in a pre-existing depressive disorder and a perpetuation of the same."

The asbestos-related conditions

31. Dr. M.D. Cowan (aged 53) is a consultant radiologist at the Western Infirmary, Glasgow. He has 21 years experience as a consultant, including considerable experience of asbestos-related conditions and CT scans. Dr. Robert Monie (aged 55) is a consultant in respiratory medicine at the Southern General Hospital, Glasgow. He has extensive experience of shipyard asbestos cases. Each gave evidence on behalf of the pursuer. Each gave an opinion that the pursuer had pleural plaques, pleural thickening and asbestosis, and that all three conditions had been caused by exposure to asbestos dust.
32. Dr. A.J.A. Wightman (aged 59) is a consultant radiologist at the Royal Infirmary of Edinburgh. He has 26 years experience as a consultant, considerable experience of CT scans, and many medical publications on topics such as pulmonary tuberculosis, emphysema, and other respiratory problems. Dr. Frank Moran (aged 71) is a retired consultant in respiratory medicine. He has 29 years experience as a consultant, and considerable experience of respiratory diseases in general and also of asbestos-related respiratory diseases and conditions. Each gave evidence on behalf of the defenders. Each accepted that the pursuer had pleural plaques and pleural thickening caused by exposure to asbestos dust, but was of the view that the pursuer did not have asbestosis.
33. The difficulty in diagnosing asbestosis appears to be that there are no clinical signs which are determinative. High resolution radiological scans - CT scans - are accepted as the best means of diagnosing the disease. However a variety of views and interpretations can emerge from the viewing of one CT scan, and thus quite different diagnoses may emanate from experienced and respected radiologists and respiratory physicians.
34. It appears to be the case that the only certain means of diagnosing asbestosis is the analysis of a sample of lung tissue. However a non-invasive bronchoscopy provides insufficient material. It is therefore necessary to have a major invasive open-lung operation conducted by a thoracic surgeon. Such an operation is not undertaken solely for medico-legal purposes. Tissue samples are therefore only recovered during appropriate surgical intervention for the purposes of treatment, or during post-mortems. No surgical intervention can assist the pursuer, and accordingly no sample of lung tissue is available.
35. On the basis of comparisons of diagnoses based on clinical signs, and subsequent post-mortem examinations, current medical research suggests that an accurate diagnosis of asbestosis can be made provided that three or more of the following features are noted on the patient's CT scan: (1) thickening of the interlobular septa and centrilobular core structures, grouped together as interstitial lines; (2) parenchymal bands (long scars); (3) subpleural curvilinear opacities (subpleural lines); (4) honeycombing; (5) subpleural nodules; and (6) architectural distortion: see "CT Quantification of Interstitial Fibrosis in Patients with Asbestosis: A Comparison of Two Methods" by Gamsu and others, in the American Journal of Radiology, January 1995, number 30/7 of process.
36. In the present case, Dr. Cowan, when interpreting the pursuer's scans, identified firstly, dots and lines indicative of peri-bronchiolar fibrosis, with fibrosis occurring initially at the centre of lobules, but subsequently extending and involving interlobular septa, causing linear shadows. Secondly, parenchymal bands, being broader shadows extending several centimetres into the substance of the lung. Thirdly, distortion of the lung architecture, which Dr. Cowan described as misshapen and malpositioned areas instead of normal lung lobules, and a coarse network of thickened and distorted lines. In cross-examination, Dr. Cowan did not accept that the parenchymal bands were merely localised fibrotic changes related to the plaques. He emphasised that it was necessary to look at the whole picture. In the present case it was significant that the features which he had described were localised, multifocal, with bilateral involvement. In re-examination Dr. Cowan also stated that he had identified parenchymal bands which were not adjacent to areas of pleural thickening.
37. On the basis of the three radiological features identified, it was Dr. Cowan's opinion that the pursuer has pulmonary asbestosis of moderate severity. He considered that there had been a slight progression in the asbestosis between 1995 and 2000.
38. Dr. Wightman, consultant radiologist, had access to the same CT scans. He came to the opposite conclusion, namely that the pursuer does not have asbestosis. Dr. Wightman accepted that the pursuer's pleural plaques and pleural thickening were, on a balance of probabilities, caused by exposure to asbestos dust. But his interpretation of the scans was that the parenchymal bands were localised fibrotic changes relating to the pleural thickening. He had formed this view because all the bands appeared to be adjacent to areas of lung covered by an area of pleural thickening, and it would be beyond the bounds of probability, or beyond possibility, that such bands would appear only in areas contiguous with pleural thickening (and not in any other areas of the lung) unless the parenchymal bands were manifestations of a pleural process caused by and emanating from the pleural thickening. If the pursuer had asbestosis, the bands would be scattered randomly throughout the lower part of the lungs. Dr. Wightman considered that some of the bands presented in a crow's feet formation, with the focal source being in the pleural thickening. He referred inter alia to the scans and to an article by Mackenzie and Harries in the Journal of the Royal Navy Medical Services 1970 number 30/4 of process. Any area which Dr. Cowan might consider to be architectural distortion was attributable to the parenchymal bands. The fibrosis was not extensive enough to qualify for the term architectural distortion. Nor did Dr. Wightman see dots or lines consistent with peri-bronchiolar fibrosis of the lung, as described by Dr. Cowan.
39. Dr. Wightman explained that it mattered to patients whether or not lung fibrosis was caused (as he maintained) by the pleural thickening or caused (as Dr. Cowan thought) by asbestosis, because patients with asbestosis had a greater risk of developing lung cancer later in life, particularly if they had been smokers.
40. The respiratory consultants, Dr. Robert Monie and Dr. Frank Moran, accepted that in the context of diagnosis of asbestosis, they, as physicians, were heavily dependent on the radiologists' interpretation of the scans, as there was no means of confidently diagnosing asbestosis on the basis of clinical signs alone. Nevertheless both Dr. Monie and Dr. Moran had formed views about the correct diagnosis, working on the basis of the patient's history, the clinical signs, and the radiological information.
41. Both respiratory consultants had regard to the pursuer's employment history, the periods of exposure to asbestos dust, signs and symptoms, and other health problems including a degree of obstructive airways disease probably attributable to smoking, gastric problems arising from a hiatus hernia, a past episode of pneumonia, and a possible cardiac problem (although medical opinion on the latter matter was conflicting and not clear).
42. Dr. Monie's conclusion was that the pursuer had contracted asbestosis. He formed that view on the basis of inter alia the history of exposure to asbestos dust, and the features noted by the radiologist Dr. Cowan.
43. By contrast, Dr. Moran's view was that the pursuer did not have asbestosis. When giving evidence, Dr. Moran was not prepared to exclude emphysema (a non-asbestos-related obstructive airways disease) as causing or contributing to the pursuer's shortness of breath. Dr. Moran summarised his views in his report dated 21 September 1996 number 25/1 of process as follows:

"The evidence from the medical records is that some episodic and/or progressive pathological process has been taking place, particularly at the right lung base since about 1991, including an episode of consolidation of lung. In the absence of a malignant process this pathological activity cannot be related in my opinion to exposure to asbestos which started in 1956 and finished by 1970. Likely explanations are aspiration of intestinal material into the lungs related to his long-standing hiatus hernia with oesophageal reflux, aspiration of infected material from his severe chronic sinus infections, respiratory infection on the basis of chronic smoking-related lung disease or a combination of some or all of these. Since he does not have diffuse interstitial fibrosis on CT scanning the low diffusing capacity is likely to be accounted for either by post-infective scarring or a combination of this and emphysema. However despite the abnormalities of lung function the progressive exercise test results (contained in the Victoria Infirmary notes) strongly suggest that most of Mr. McKenzie's exercise limitation is of cardiac origins and is due to a combination of angina and cardiac induced breathless[ness], the latter accounted for by the cardiomyopathy detected by echocardiogram. In this connection, however, there are several references in the records to occasions on which Mr. McKenzie's stated degree of exercise limitation was considered by medical observers to be much less than they estimated...".

44. These views were put to Dr. Monie, who rejected them, pointing out that there was no history of repeated episodes of infection, such as would be expected if there had been aspiration of the gastric contents into the lung. Similarly there was no history of progressive nasal problems, such as would be expected if there were aspiration of infected material from severe chronic sinus infections. There was no history of frequent respiratory tract infections, or cough with phlegm. Further, Dr. Monie was not satisfied that there was any cardiac problem.
45. Dr. Moran, in his further report dated 23 June 2001 number 32/1 of process, noted that lung function tests appeared to show a slight increase in the restrictive ventilatory defect.
46. On balance, I have reached the view that the evidence of Dr. Cowan and Dr. Monie is to be preferred. Interpretation of CT scans is a difficult task, and as indicated above there may be little unanimity of opinion following examination of the same scans. In this particular case, I accept that Dr. Cowan found firstly, dots and lines suggestive of peri-bronchiolar fibrosis; secondly, parenchymal bands, some of which were not situated adjacent to areas of pleural thickening; and thirdly, some misplaced or misshapen lobules together with a coarse network of thickened and distorted lines, which could properly be termed architectural distortion of the lung. Taking into account the evidence relating to the pursuer's work and health history, and the reasons offered by Dr. Monie for rejecting the alternative explanations offered by Dr. Moran, I am satisfied, on a balance of probabilities, that the pursuer developed not only pleural plaques and pleural thickening as a result of exposure to asbestos dust, but also asbestosis.

Consequences of the pursuer's asbestos-related conditions

47. There was no dispute that the pursuer's pleural plaques are benign, not carginogenic, and painless. However Dr. Monie considered that recent radiology reports indicated that the plaques were numerous and were beginning to coalesce, and that the plaques made some contribution towards loss of lung function. Nevertheless it was largely the pleural thickening which caused the loss of lung function: without the pleural thickening, the pursuer would have a much milder disability. Dr. Moran, on the other hand, was of the view that the pleural plaques did not affect lung function to any extent.
48. In relation to the effect of the pleural thickening, Dr. Cowan and Dr. Monie gave evidence that the pleural thickening was quite significant in areas, 50 per cent being of a thickness of more than one centimetre. Normally, one found thickening of only a few millimetres. Although the surface area affected by pleural thickening was 20 per cent in the right lung, and 10 to 15 per cent in the left, thus not qualifying for the definition "diffuse pleural thickening", the nature and extent of the pleural thickening was such that it acted as a splint on the pursuer's lungs, interfering with expansion and causing a restrictive defect. Thus the pleural thickening made a significant contribution to the breathlessness suffered by the pursuer. The asbestosis also contributed to the restrictive defect, but in addition produced a reduction in the transfer factor or the diffusing capacity of the lungs. In other words, the asbestosis reduced the lungs' ability to absorb oxygen into the blood. Of these two asbestosis-related consequences, the restrictive defect was the more severe.
49. Dr. Monie accepted that a factor not associated with exposure to asbestos but contributing to the pursuer's breathlessness was his smoking-induced mild obstructive airways disease. In relation to chest discomfort, he commented that breathlessness could result in a tight feeling in the chest causing anxiety with even more chest discomfort. Dr. Monie was not convinced that the pursuer had angina or ischaemic heart disease. He therefore did not accept that some of the pursuer's breathlessness might be attributable to heart disease.
50. Dr. Monie confirmed that those with asbestosis were at risk of developing lung cancer, particularly if they were smokers. The risk was not so great for non-smokers or those who had stopped smoking, which the pursuer said he had. For persons who had been exposed to asbestos (whether or not they had asbestosis) there was also the risk of developing mesothelioma. Unlike asbestosis, mesothelioma was not dose-related. About one in ten persons exposed to asbestos developed mesothelioma. The risk was greater when someone had been exposed to asbestos at an early age, for example, in their twenties. The risk for the pursuer was therefore a significant one, at the upper end of a range of risk of 7-11 per cent. There was no known cure for mesothelioma, and it was known to lead to a particularly distressing and painful death.
51. Dr. Monie was of the view that the pursuer's anxiety about his asbestosis aggravated his breathlessness, and caused the pursuer stomach problems. On two occasions, the pursuer had required hospitalisation for naso-gastric feeding. Dr. Monie pointed out that in Clydeside and Govan, people were witnessing early asbestos-related deaths. The pursuer's anxiety was therefore very real.
52. Dr. Monie considered that the pursuer was significantly disabled. He described the pursuer as being fifty per cent disabled, one half of his disablement being attributable to pleural thickening and anxiety caused by the asbestosis, and one half being attributable to his pre-morbid anxiety, personality, gastric problems, and underlying chronic bronchitis. Dr. Monie expected the pursuer's level of disability slowly to increase. As the pursuer became more breathless, his anxiety level would increase, which would aggravate the feeling of breathlessness.
53. Dr. Wightman and Dr. Moran, on the other hand, considered that the pursuer's respiratory function was not significantly affected by asbestos-related conditions. While accepting that areas of the pleura were "considerably thickened" and "greatly thickened" (in places to a thickness of about one centimetre or more), Dr. Wightman thought that the areas affected amounted to a relatively small part of the lung area, and would not cause breathlessness of a significant degree. The pursuer might be marginally restricted if he rushed up a long hill, but the asbestos-related conditions would not interfere with normal activity. Dr. Moran considered that the pursuer's diffusing capacity was within normal limits. He did not consider that the pursuer was at risk of developing asbestosis. He thought it quite probable that there had been no significant deterioration in lung function. He stated that it was impossible to say what effect the pleural thickening might have on the pursuer's lungs without knowing how much lung function was affected by plaques. Also pleural thickening might have more or less effect depending on the region of thickening: for example, the lung did not move as much at its apex. Dr. Moran drew attention to other conditions causing respiratory disability, in particular pneumonia, chest infection, obstructive hypertrophic cardiomyopathy (a condition of the heart muscle), smoking-related lung disease, and severe psychological problems. Dr. Moran estimated the pursuer's disability at 15 per cent, of which only about 5 per cent could be attributed to asbestos-related conditions.
54. In the course of the proof, I had the benefit of seeing and hearing the pursuer in court, and hearing him as he spoke of his past working conditions and the changes in his health. I also had the benefit of seeing the images on the CT scans as they were being interpreted by the radiologists; hearing Mrs. McKenzie's evidence; and comparing the evidence of Dr. Monie and Dr. Moran. Taking into account all the evidence, I was persuaded by Dr. Monie's estimate of 50 per cent disability with half of that disability attributable to asbestos-related conditions.

 

Quantum of damages

55. Counsel for the pursuer referred to the following authorities: (a) Scottish decisions, namely Kerr v Newalls Insulation Co. Ltd 1997 S.L.T. 723; Stanners v Graham Builders Merchants Ltd 1995 S.L.T. 728; Myles v City of Glasgow D.C. 1994 S.C.L.R. 1112; McKenzie v Cape Building Products Ltd 1995 S.L.T. 695; McConnell v British Shipbuilders 2000 G.W.D. 21-836; Lightbody v Upper Clyde Shipbuilders Ltd 1998 S.L.T. 884; Campbell v Campbell and Isherwood Ltd 1993 S.L.T. 1095; Nicol v Scottish Power plc 1998 S.L.T. 822; (b) Heil v Rankin [2000] 2 WLR 1173; (c) The Judicial Studies Board Guidelines (5^th ed.), Lung Disease, paragraphs (d) and (e); (d) English decisions, namely Ward v Newalls Insulation Co. Ltd [1998] PIQR Q41; Mulry v Kenyon & Son Ltd. [1992] P.I.Q.R. Q24; Dillon v British Gas, Kemp para.F2-042; Leal v British Sugar, Kemp para.F2-043; Vincent v London Electricity, Kemp para.F2-044; Johnson v BRB, Kemp para.F2-048; Elderbrant v Cape Darlington, Kemp para.F2-048/1; Little v VSEL Birkenhead Ltd, Kemp para.F2-049/1. Counsel submitted that if the court were to hold that the pursuer had pleural thickening as a consequence of exposure to asbestos dust, the award in respect of solatium should be in the range £25,000 to £30,000. If the court were to conclude that the pursuer had both pleural thickening and asbestosis, the award should be in the range £30,000 to £35,000. Counsel suggested that it might be appropriate to allocate one half or two thirds of any award to the past, with interest from June 1993.
56. Counsel for the defenders invited the court to prefer Dr. Moran's assessment of the pursuer's condition and disability. If the pursuer were held to have pleural changes (pleural plaques and thickening, but not asbestosis), solatium should be about £14,500: cf. Nicol v Scottish Power plc 1998 S.L.T. 822. If the court were to conclude that the pursuer had asbestosis in addition to pleural plaques and pleural thickening, counsel for the defenders adopted the cases cited by the pursuer, but suggested that, in view of the pursuer's condition being one of "moderate severity", any award should be at the lower end of the scale. Also some caution should be exercised when looking at English authorities. The facts in Mulry were very different, and a number of authorities dealt with provisional damages. The decision in Heil v Rankin [2000] 2 WLR 1173, did not mean that the court should perform a semi-mathematical exercise: see Duthie v MacFish Ltd 2001 S.L.T. 833. Counsel submitted that it would be appropriate to allocate one half of the award to the past, with interest from June 1993.
57. In my view, the pursuer is no longer able to live a normal life. His activities are substantially restricted by his respiratory problem. He suffers continuing discomfort and perpetual reminders about the limitations imposed on his life. There are real risks that he will develop mesothelioma or cancer. He lives in fear of contracting either condition, but particularly mesothelioma. He is very anxious about his future, and is convinced that he is going to die before the age of 65.
58. I am not satisfied that any gastric problem or cardiac problem is contributing to the pursuer's breathlessness, although I do take into account the fact that the pursuer would probably have suffered a degree of respiratory deficit as a result of mild obstructive airways disease attributable to smoking. I accept Dr. Monie's assessment of the proportion of disability attributable to asbestos-related conditions at one half of 50 per cent (i.e. 25 per cent). So far as the pursuer's anxiety and depression are concerned, I am satisfied that the asbestos-related conditions are the major cause, in particular as the pursuer has a well-justified fear of developing mesothelioma or cancer. I am also satisfied, bearing in mind the pursuer's pre-existing anxious personality, that the degree of disability, depression and fear brought about by the asbestos-related conditions has been particularly severe in his case. Taking into account the pursuer's particular circumstances and all the authorities cited, I assess solatium at £35,000, one half to the past, with interest at 4 per cent from 1 June 1993, namely £6,062. I assess the services element of the claim at the sum agreed by the parties, namely £1,750, inclusive of interest. Thus the total award of damages, inclusive of interest to date of decree, amounts to £42,812.

 

Conclusion

59. I shall sustain the pursuer's first plea-in-law, and repel the first and third defenders' first, second, and third pleas-in-law. I find the first defenders liable to pay the pursuer 40 per cent of £42,812, namely £17,125. I find the third defenders liable to pay the pursuer 50 per cent of £42,812, namely £21,406. I reserve all questions of expenses to enable parties to address me on that matter.