 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray & Ors v. Greenock Dockyard Co [2004] ScotCS 107 (30 April 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/107.html Cite as: [2004] ScotCS 107 |
||
[New search] [Help]
|
FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
|
|
Lord President Lord Hamilton Lord Weir
|
A837/00 OPINION OF THE COURT delivered by THE LORD PRESIDENT in RECLAIMING MOTION in the cause (FIRST) MRS. JOSEPHINE MURRAY, as individual and as executor nominate of JOSEPH MURRAY; (SECOND) KIRSTEN ALLARDICE; (THIRD) ANDREW ALLARDICE; (FOURTH) MRS. JOSEPHINE MURRAY, as executor nominate of the late MARY MURRAY Pursuers and Reclaimers; against THE GREENOCK DOCKYARD COMPANY LIMITED Defenders and Respondents: _______ |
Act: Maguire, Solicitor Advocate, Marshall, Solicitor Advocate; Thompsons (Pursuers and Reclaimers)
Alt: Anderson Q.C., N. R. Mackenzie; Biggart Baillie (Defenders & Respondents)
30 April 2004
[1] The first pursuer, as an individual, and the second pursuer were awarded £20,000 and £6,000 respectively as loss of society awards under section 1(4) of the Damages (Scotland) Act 1976 as amended. They have reclaimed against these awards on the ground that the temporary judge by whom the awards were made erred in law in various respects; and reached a figure which no reasonable Lord Ordinary would have arrived at. [2] The facts out of which the claims arose are not in dispute and are set out in the Opinion of the temporary judge. The first pursuer married Joseph Murray in 1959. At the time of his death on 31 March 2001 they had been married for some 41 years, and were each 63 years of age. The marriage was generally a happy one. It had been difficult for a time in the 1980s when Mr. Murray was drinking heavily and the first pursuer left the matrimonial home for a short period. Over the last ten years before his death the first pursuer looked after her husband. She was devoted to him and during the last year of his life organised her day each day so that she could be with him, for most, if not all of, the time. She and her daughter gave him emotional support. She drove him to hospital on many occasions. Latterly she had to organise a wheelchair for him for the journey from the car to the hospital clinic. She cooked and cleaned for him, fetched and carried and latterly helped him in and out of the toilet. At night when he would sweat profusely she sponged him down and comforted him. He died peacefully at home. The first pursuer telephoned her daughter who arrived shortly thereafter. She was naturally distraught. She was assisted by her daughter in making the usual arrangements. She has required anti-depressant medication since her husband's death. [3] The deceased was a heavy smoker. He suffered from smoking-related disease with chronic bronchitis and emphysema. As we have already stated, during the 1980s he was also a heavy drinker. In the 1980s and 1990s he had numerous episodes of chest infection. He was fit for work until the summer of 1990, although it appears he did not retire until 1991 or 1992. By 1991 his emphysema was fairly severe. In 1999 he suffered a "breathless turn", which led to it being diagnosed that he was suffering from mesothelioma. In early January 2000 the presence of malignant mesothelioma was confirmed. It was untreatable. His life expectancy was then under one year. The temporary judge stated that he accepted that the deceased suffered pain and discomfort during the last year of his life, although it was not as great as that suffered in other cases of mesothelioma. After reviewing conflicting medical evidence on the subject, the temporary judge concluded that, had the deceased not suffered from mesothelioma, his life expectancy as at the date of his death would have been 6.5 years. [4] The temporary judge stated that he accepted that all three heads by reference to which a loss of society award might be made under section 1(4) of the 1976 Act applied in the present case. He also accepted and adopted the analysis by Lord Kingarth in McManus' Executrix v. Babcock Energy Limited 1999 SC 569. He took the view that jury awards to a parent for the death of a child of whatever age were not "directly relevant" when considering a claim by a widow. Nor were awards to children of whatever age for the death of a parent. However, they were, in his view, of some interest as they showed generally that judicial awards might be out of line with the value placed by society on the loss of a relative. On the other hand the courts had always regarded such claims as different when assessing quantum. Moreover, jury awards were only part of the overall picture which had to be considered. He stated that he was content to follow the approach in McManus' Executrix. In his opinion, a slightly lower award than that in McManus' Executrix, when updated, was appropriate. He noted that the spouses in that case were a few years younger. The grief and suffering of the first pursuer was real but not extreme. The distress and anxiety endured by Mrs. McManus was likely to have been harder to bear, given that her husband was a fit and healthy man, and having regard to the particular tragic circumstances of the last eight or so months of his life. [5] In regard to the second pursuer the temporary judge noted that she had left the family home when she was 20 years of age. She had married a few years later and was aged 32 when her father died. There was a normal loving relationship between father and daughter. She visited the family home regularly. Her distress, anxiety, grief and suffering, and her loss of society and guidance were no greater or less than one would reasonably expect them to be in relation to the death of a parent suffering from a fatal disease. The temporary judge was aware that in Shaher v. British Aerospace Flying College Limited an award had been made by the Lord Ordinary on 28 May 2002 of £35,000 to each of the parents of a 19 year old son who had died in a flying accident. He disregarded that decision as it was subject to a reclaiming motion. (In passing we note that the temporary judge records that parties were agreed they should not await its outcome before giving his decision. We were given to understand that the pursuers suggested that he should await the decision in the Inner House, although it was for him to decide whether to do so). In the event these awards were reduced by the Extra Division to £20,000 in the case of each parent (2003 S.C. 540). The temporary judge also remarked that the case of Shaher was not in any event directly relevant. His impression was that the award of £5,000 to adult children in McManus' Executrix was on the low side, although it offered the best general guidance. He remarked that the amendment of the 1976 Act by the Damages (Scotland) Act 1993 arose in part because of the groundswell of opinion that loss of society awards by the courts were too low. As was observed by the Scottish Law Commission in their report in 1992, there could be few injuries more serious for a family than the death of one of its members. [6] This reclaiming motion was heard immediately after that in the case of McLean v. William Denny Brothers Limited. This had the useful effect of enabling parties to adopt arguments which were presented in the other case. It has also enabled this court to consider the outcome in both cases at the same time. Accordingly, this Opinion should be read in conjunction with Opinion issued by the Court in McLean. [7] In presenting the reclaiming motion on behalf of the second pursuer Mr. Maguire, who appeared as her solicitor advocate, pointed out that the award made by Lord Kingarth in McManus' Executrix of £5,000 to each of two adult sons of a deceased represented, in effect, a doubling of the 'more traditional' award of £2,000 which had been made for the oldest child in Morrison v. Forsyth 1995 S.L.T. 539. It was to be noted that Lord Kingarth had taken into account both the distress which they had suffered in contemplation of their father's illness and the view that previous judicial awards had been, relatively speaking, on the low side. It was also to be noted that this appeared to be a proportionately greater increase than he had applied in the case of the widow's award (page 584E-G). [8] Mr. Maguire also emphasised the generality of the remarks made by the Extra Division in Shaher where they pointed to the huge gulf between the level of judicial awards and the level of recent jury awards, so far as bereavement generally was concerned. In that connection Mr. Maguire reminded the court of the four jury awards which were mentioned in the Opinion of the Court in Shaher, ranging in date from that in Kempton v. British Railways Board in May 1993 to Strang v. Le Brusq 2001 Rep. L.R. 52 in February 2001. The latter was an award of £30,000 for each parent of a son who died at the age of 21 and had been living at home. If that was updated in accordance with the Retail Price Index it represented a sum of £31,200. Mr. Maguire drew attention to the observations of the court in Donald v. Strathclyde Passenger Transport Executive 1986 S.L.T. 625 which did not rule out the relevance of awards to a child when considering an award to a parent (page 628J cf. Jarvie v. Sharp 1992 S.L.T. 350 at page 351). He submitted that the decision in Shaher could be considered to be directly relevant to the present case. Past experience had shown that in regard to older children the differences between awards made to parents and those made to children were less apparent than where the children were younger. [9] In regard to the account which should be taken of head (a) of section 1(4) Mr. Maguire suggested that an increase of between 25% and 33% was appropriate. At the same time he accepted that, in the case of a widow, this was likely to have been a more potent factor. In the light of all the circumstances he suggested that an award in favour of the second pursuer should lie within the range from £15,000 to £25,000. It appeared that the temporary judge had not given sufficient weight to the jury awards, and in particular those in Strang and the case of Wells v. Hay 1999 Rep L.R. 44. In the latter case a sum of about £37,000 was awarded to a mother in respect of the death of her son who was aged 19. Similarly updated, that figure would represent £40,500. [10] In reply Mr. Anderson for the defenders emphasised that the second pursuer had not been a member of the deceased's household for 12 years before his death. As regards the decision of Lord Kingarth in McManus' Executrix, it was not possible to determine what proportion of the increase was in respect of the view that judicial awards had been on the low side. It did not follow that what was appropriate in the case of a widow might also apply in the case of a married daughter. [11] As regards the reclaiming motion on behalf of the first pursuer, Mr. Maguire adopted the arguments which had been presented by Mr. Hajducki on behalf of the first pursuer in McLean. He also criticised the opinion of the temporary judge in a number of respects. First, he had awarded slightly less than had been awarded in McManus' Executrix to the widow. However, it was invidious to make comparisons in regard to the love and affection which characterised the relationship between different spouses. Secondly, if the temporary judge had undervalued the second pursuer's claim, it followed that, in view of the normal differential, the claim by the first pursuer should be further increased. Accordingly, the award made to the first pursuer should be seen as an example of a judicial award on the unduly low side. In any event, if the second pursuer's award was to be increased, so should that of the first pursuer. [12] In reply Mr. Anderson adopted the submissions which he had made in McLean. He drew attention to the fact that the deceased had suffered from ill-health for a number of years, and that his life expectancy, had he not suffered from mesothelioma, would have been limited to 6.5 years. [13] It is plainly right for us to have regard both to judicial awards and to jury awards. As we explained in our Opinion in McLean, while the jury awards provide evidence that judicial awards have been on the low side, it is extremely difficult, in view of the paucity of the latter awards, to see clearly to what extent judicial awards require to be increased. While an award for one class of relative may be of some value in considering what would be an appropriate award in respect of another class, it cannot be assumed that what holds good for one will necessarily apply to the other. There is a long-standing and continuing tendency for awards to create a hierarchy between different classes of relative. [14] In the light of all the awards to which we have been referred, including the decision of the Extra Division in Shaher (to which the temporary judge did not have the advantage of access), we are of the view that the sum awarded to the second pursuer was unreasonably low, and that an appropriate award would have been £10,000. Likewise we consider that the sum awarded to the first pursuer was unreasonably low. We do not consider that it is either necessary or appropriate to draw any distinction between her and the widow in McLean. Accordingly, we consider that in her case the award should be £28,000.