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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLean & Ors v. William Denny & Bros Ltd & Ors [2004] ScotCS 108 (30 April 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/108.html Cite as: [2004] ScotCS 108 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Hamilton Lord Weir
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A4405/01 OPINION OF THE COURT delivered by THE LORD PRESIDENT in RECLAIMING MOTION in the cause (FIRST) MARION RENWICK THORBURN McLEAN; (SECOND) ALISON A. CAMPBELL; (THIRD) KENNETH CAMPBELL; (FOURTH) HENRY McLEAN; (FIFTH) CHARLOTTE McLEAN; and (SIXTH) ANDREW T. McLEAN Pursuers and Respondents; against WILLIAM DENNY & BROS. LIMITED; KENDRICK COMPUTING PLC (In Liquidation), and RICHARD VICTOR YERBURGH SETCHIN First and Third Defenders and Reclaimers; and SCOTT & SONS (BOWLING) LIMITED Second Defenders: _______ |
Act: Hajducki, Q.C., Christine; Thompsons (Pursuers and Respondents)
Alt: Anderson Q.C., N. R. Mackenzie; Biggart Baillie (1st and 3rd Defenders & Reclaimers)
30 April 2004
[1] The Lord Ordinary, all other aspects of this action having been resolved by agreement, awarded the first pursuer the sum of £28,000 under section 1(4) of the Damages (Scotland) Act 1976, as amended, as part of an award of damages against the first and third defenders (to whom we will refer as "the defenders"). The defenders have reclaimed against that part of the Lord Ordinary's decision, and the first pursuer has taken the opportunity of cross-appealing against it.In each case it is claimed that the Lord Ordinary erred in law.
[2] The first pursuer is the widow of the late Henry McLean, whom she married in about 1954. At the time of his death on 18 June 2001 they were 67 and 75 years of age respectively. As the Lord Ordinary narrates in his Opinion, it had been a very happy marriage. There were three children of the marriage. The first pursuer and her husband enjoyed each other's company in many ways, socially and in outside activities, such as walking and gardening. Her husband, who liked to keep himself fit, used to swim each week. He did not smoke, and he drank within moderation. [3] Prior to and around 1990 he had experienced chest pains, which were mainly due to tension or anxiety. Some years prior to 2001 he became aware that he had developed plaques on his lungs. In the course of the spring and summer of 2000 the first pursuer noticed that he was not as fit as he had been. He complained of being very tired, and developed a cough which he had not had before. He became unable to carry out gardening. The first pursuer was worried about his tiredness. An element in her anxiety was her awareness that the plaques might develop into a malignant cancer. Her husband became increasingly breathless. These symptoms were in fact related to the onset of mesothelioma. [4] In November 2000 the deceased was referred to hospital for x-ray examination. Subsequently he underwent pleural aspiration, and a biopsy was undertaken. The first pursuer stated in evidence that the doctor was very anxious about her husband's condition. Although there was no suggestion at that time that he had developed mesothelioma, these were very anxious days for her husband and herself. He continued to attend hospital at intervals for further investigation. When he was in hospital on 1 February 2001 he was advised by a doctor that he had mesothelioma. He was told that nothing more could be done for him by way of treatment, and that there was no hope for him. He broke this news to the first pursuer. Both of them were immensely distressed. He told her they had had a great life together. Although he had hoped that there would be time for them to go off on holiday together, his condition progressed rapidly. He was fitted with a bag to drain fluid from his lungs. This would leak on to their bed at night, and the bedclothes had to be changed. His skin was also irritated. His sleep became increasingly interrupted. He became increasingly unable to care for himself. He became incontinent and required to wear pads. He increasingly lost appetite. The first pursuer had to care for him wholly, including assisting his bowel and bladder functions. She was directly concerned in caring for him. From about February 2001 he was given painkillers. Latterly he required continuous pain relief. About two days before his death he had returned from a visit to hospital. On the evening of 17 June his doctor was called, and an ambulance was summoned, when his breathing became difficult. He was taken to hospital where his death occurred. The first pursuer described the difficulty and desolation of her life since his death, because of their close relationship throughout their long married life. [5] Section 1(4) of the Damages (Scotland) Act 1976, as amended by the Damages (Scotland) Act 1993, states:"If the relative is a member of the deceased's immediate family (within the meaning of section 10(2) of this Act) there shall be awarded, without prejudice to any claim under subsection (3) above, such sum of damages, if any, as the court thinks just by way of compensation for all or any of the following -
(a) distress and anxiety endured by the relative in contemplation of the
suffering of the deceased before his death;
(b) grief and sorrow of the relative caused by the deceased's death;
(c) the loss of such non-patrimonial benefit as the relative might have been
expected to derive from the deceased's society and guidance if the deceased had not died,
and the court in making an award under this subsection shall not be required to ascribe specifically any part of the award to any of paragraphs (a), (b) and (c) above".
It is not in dispute that the first pursuer was entitled to an award by reference to all of the three heads mentioned in the subsection.
[6] In approaching the issues in the present case it is convenient to refer to certain previous awards under section 1(4) which were known to the Lord Ordinary, and in the order of their dates. [7] The Lord Ordinary had before him the decision of Lord Kingarth in McManus' Executrix v. Babcock Energy Limited 1999 SC 569. That decision was concerned with awards of damages to the executrix, widow and children of a man who died from mesothelioma at the age of 55. At page 579 Lord Kingarth noted that in their report, The Effect of Death on Damages, in 1992 (Scot Law Com No. 134), the Scottish Law Commission recommended that section 1(4) should be reformulated - as it was in the 1993 Act - in order to provide "a secure legislative foundation for the actual practice of the courts" (paragraph 4.38). He also noted that the Commission stated that they had received many complaints from consultees that current bereavement awards were too low (paragraph 3.22); and that they observed that the reformulation might operate as an incentive to the courts to make more generous awards (paragraph 4.39). [8] In the light of his examination, previous judicial awards to a widow in the case of the immediate death of her husband appeared to indicate a figure in the region of £15,000 (page 583G). It seemed to him that, starting with this as a base figure, a reasonable sum in the case before him, both to reflect the distress which the widow had suffered over a period of months leading up to the death of her husband, and the view that loss of society awards had tended, relatively at least, to be on the low side, would be £20,000 (page 584E). [9] In this connection it may be noted that the attention of Lord Kingarth had been drawn to two previous jury awards. The first, in order of date, was that in Kempton v. British Railways Board on 18 May 1993 (McEwan and Paton on Damages 13/93-2). In that case the sum of £35,000 was awarded under section 1(4) to the 37 year old widow of a man who had died at the age of 39. The other jury award was in Wells v. Hay on 25 November 1998 (1999 Rep. L.R. 44). In that case a sum of just over £37,000 was awarded under section 1(4) to the mother of a 19 year old man who died some 16 days after sustaining horrific injuries in a road traffic accident. Lord Kingarth regarded these awards as providing only limited assistance, particularly in view of the absence of any detailed figures. However, he considered that it would be wrong to ignore the award in Kempton altogether. The award in Wells, on the other hand, had to be essentially disregarded as that case was then under appeal (pages 582I-583A). [10] The Lord Ordinary also had before him the decision of the Extra Division in Shaher v. British Aerospace Flying College Limited 2003 S.C. 540, which was issued on 29 May 2003. In that case the Lord Ordinary had awarded £35,000 for loss of society to each of the parents of a 19 year old student who had been killed in a flying accident. He had stated that current jury awards, which were the only recent guidance available, suggested that awards to parents for loss of society should be between £30,000 and £35,000. He referred to the jury award in Strang v. Le Brusq on 7 February 2001 (2001 Rep. L.R. 52), in which £30,000 had been awarded to each parent of a 21 year old man who had been living at home. [11] The Extra Division pointed out in paragraph 3 that the Lord Ordinary had not specified any other jury award, and had not referred to the judicial awards in Jarvie v. Sharp 1992 S.L.T. 350 and Devlin v. Strathclyde Regional Council 1993 S.L.T. 699, in which the parents of children aged six weeks and fourteen years had been awarded loss of society in the sums of £10,000 and £5,000 respectively. The court considered that the Lord Ordinary had given insufficient reasons for his decision, and that it was right for it to consider de novo the amount which should be awarded. The court had regard to the three jury awards to which we have already referred, and in addition the jury award in McIntosh v. Findlay on 16 January 2001 (2001 Rep. L.R. 66), in which £37,500 had been awarded to a posthumous child in respect of the death of his father. [12] The court went on to state, in paragraph 7, that it was"persuaded that the four bereavement awards made by juries in recent years do disclose a pattern which demonstrates that in this general area judges have indeed become 'out of touch with awards made by juries in the exercise of their proper function' - Girvan [v. Inverness Farmers Dairy 1998 S.C. (H.L.) 1] per Lord Hope of Craighead at page 12".
The court said that it was not confident that the four awards went the length of establishing that loss of society awards to parents of adult children could now be taken to lie between £30,000 and £35,000 for each parent. Further experience of jury awards might well show this to be too low or too high. Doing the best it could on the material before it, the court considered that a fair and proper award to each parent was £20,000. It is understood that an appeal against this decision may be heard by the House of Lords.
[13] In the present case the Lord Ordinary made a number of general observations. The first was that, under reference to the decision in Shaher, the court was encouraged to look for guidance to jury as well as judicial awards of damages. In the second place neither jury awards for the death of a child of whatever age nor awards to children of whatever age for the death of a parent were "directly relevant" when considering a claim by a widow for the death of her spouse. There was a discernible difference between those categories of award, with awards to widows tending to be higher than those for other categories. [14] The Lord Ordinary went on to state that he did not demur in any way from the general analysis of a claim such as the present which had been undertaken by Lord Kingarth in McManus' Executrix. However, he considered that the "base figure" used by Lord Kingarth required to be considered afresh "in the light of subsequent awards for bereavement". He noted that in Shaher the court had considered that the four bereavement awards by juries in recent years had shown that in this general area judges had become out of touch with jury awards. It was also four years since the award in McManus' Executrix. In these circumstances he decided that the sum of £28,000 should be awarded. [15] This court was not referred to any judicial or jury award in respect of section 1(4) which was more recent than those which we have mentioned. [16] For the defenders Mr. Anderson submitted that the Lord Ordinary had erred in law in a number of respects. It was not clear how he had arrived at his award. However, it appeared at least that he may have acted on the basis that judicial awards for bereavement had in general become too low, and taken the view that widows were generally awarded more than bereaved parents of children; and that the first pursuer should be awarded more than the parents in Shaher. [17] Mr. Anderson submitted that the Lord Ordinary had misinterpreted the decision in Shaher as supporting the view that judicial awards to widows had been on the low side. The sole jury award in the case of a widow was that in Kempton. There was no question of a pattern of jury awards. Could that award be regarded as representative of jury awards in such a case? In any event it was not possible to know what importance the jury had attached to each head of section 1(4). It could not be said that more would have been awarded had head (a) been involved. Mr. Anderson further submitted that the Lord Ordinary had failed to appreciate that in McManus' Executrix Lord Kingarth had looked for guidance to both judicial and jury awards, including that in Kempton. It was not clear what the Lord Ordinary had meant by referring to the significance of "subsequent awards for bereavement". [18] Mr. Anderson also submitted that too much attention had been given to a comparison with awards to parents or children. Such awards varied according to the age of the child. Awards for the death of adult children had always been particularly low. However, it should not be assumed that an award to a widow should exceed an award to parents, such as was made in Shaher. In any event the Lord Ordinary had failed to appreciate the peculiar facts of Shaher. He emphasised, by reference to the Opinion of the Lord Ordinary in that case, that there had been particular bonds of affection within the family of the deceased, who was a Bahrainian, and that in that family the death of the eldest son had a special significance. [19] Finally, the Lord Ordinary had failed to take into account the fact that the deceased had died at the age of 75, and hence would have had a relatively limited life expectancy. [20] We are not persuaded that the reasoning of the Lord Ordinary was vitiated by any error of law as contended for by the defenders. He was entitled to proceed on the basis that experience had shown that there was a considerable gap between judicial awards and the awards made by juries for bereavement, including in the case of a widow, and that this indicated that judicial awards had generally been too low. He was also, we consider, entitled to regard the jury awards in McIntosh and Strang, both of which were subsequent to the decision in McManus' Executrix, as providing additional support for this view, and to take the view that the base figure which Lord Kingarth had used in McManus' Executrix required to be considered afresh. At the same time there was, as he observed, a discernible difference between the level of awards in respect of different classes of relative. We are not persuaded that he placed undue reliance on the circumstances of Shaher. We do not consider that consideration of the age of the deceased demonstrates that the Lord Ordinary was in error as a matter of law. He was well entitled to regard the life expectancy of the deceased as counterbalanced by the strength of the relationship between him and the first pursuer, which was founded on a long and happy marriage. [21] Accordingly, we do not consider that the defenders' reclaiming motion is well-founded. [22] We now turn to consider the pursuers' cross appeal which is, according to the ground of appeal, that the Lord Ordinary erred in law"in that having made the findings in fact that he did and having recognised the pattern of previous awards between widows and other classes of relatives and having placed reliance on the Inner House decision in Shaher he failed to award the first pursuer an adequate sum by way of damages under section 1(4) of the Damages (Scotland) Act 1976 as amended".
"the 'overall philosophy' of Scottish practice is that the assessment of damages is first and foremost a matter for a jury. We, ourselves, might go further and suggest that it is this very philosophy which gives to awards of damages in this area their essential legitimacy. These awards, as it seems to us, should in the end reflect the expectation of society which the legal profession serves and represents, rather than be simply an invention of that profession. On the other hand, we see immediately the force of Lord Kingarth's observations anent the danger of relying on only one jury award and the desirability of finding some consistent pattern as between a number of such awards. In this connection, a wide disparity between jury and judicial awards was not, it seems, foreseen by the House of Lords in Girvan and, indeed, the assumption made by Lord Hope of Craighead at page 17 of the report is that jury and judicial awards would fall within the same 'relatively narrow range of figures'".
"In order to be consistent with the overall philosophy, a very large margin indeed was to be allowed between what the jury had awarded and what the judges thought appropriate before the court would feel it right to interfere and take the risk of sending the case back for consideration by a fresh jury".
"The result of this exercise is likely to be the assessment of a relatively narrow range of figures within which a judge, if presented with the same evidence, could properly place his award. The majority of the information used for the purposes of this exercise is likely to come from awards made by the judges. Where there are jury awards in similar cases they should be taken into account also. But no greater weight should be attached to them than would be given to them by a judge when making his assessment".
We may say that we did not understand counsel for the first pursuer to advance the view that any greater weight should be attached to an award by a jury per se than that attached to a judicial award.
[33] In the third place, the Extra Division appear to have misconstrued the passage in the speech of Lord Hope at page 17. He did not, it seems, assume that jury and judicial awards would fall within a relatively narrow range. Rather, he expected that the range within which a judge, having taken into account prior judicial and jury awards, could properly place his award would be relatively narrow. However, the difficulty and uncertainty of that judicial exercise, where there may be a wide disparity between judicial and jury awards in comparable cases, should not be underestimated. [34] We do not doubt that, if there have been a number of jury awards which fall into a pattern which is indicative of a level or range of award which a jury might be expected to make, that would be important evidence for a judge who was making his own assessment. [35] There is by now evidence that, in general, judicial awards in bereavement cases have been on the low side. It is not in dispute, as was found by Lord Kingarth in McManus' Executrix, that this applies to awards to widows. However, the only jury award to a widow which has demonstrated a higher value than a judicial award is that in Kempton. If that award is updated to the present time on the basis of the Retail Price Index, it would be equivalent to the sum of £45,000. However, little is known of the circumstances of that case. It cannot be known what factors the jury regarded as influential. No doubt it would be right, as Lord Kingarth considered, to take account of that award, but the huge gap between it and the general level of awards by judges to widows - which have come up to about £15,000 - make it impossible to put together a coherent picture of the range within which a widow's award would normally expected to be, quite apart from what might be added in respect of head (a) of section 1(4). [36] No doubt it may be argued that account should be taken of jury awards for other classes of relative. The other three jury awards to which reference has been made support the view that a jury may well award more than a judge. However, while these awards give some cause for concern, and are of some assistance, they are relatively few in number and do not yield a measure which is readily transferable to a different class of claimant. [37] These considerations lead us to the view that the paucity of jury awards is such that it would be unwise of us to draw any definite conclusion from them as to the extent to which judicial awards should be increased. However, this court has the responsibility of ensuring that the general level of judicial awards for bereavement is "just", as is required by the terms of section 1(4). An equivalent responsibility was recognised in regard to the (now superseded) awards for solatium in respect of bereavement (see Sands v Devan 1945 S.C. 380; Kelly v Glasgow Corporation 1949 S.C. 496; 1951 S.C.(H.L.) 15). We would be disposed to say that, in the present limited state of information, an award to a widow in the case where a spouse had died suddenly (so that there was no question of applying head (a) of section 1(4)) should, in the absence of special features, be in the region of £25,000. This is because, while any assessment in this field must in the end of the day depend to a substantial extent on impression, the evidence as to jury awards which has become available, as well as the passage of time, since the decision in McManus' Executrix suggests a higher value than that used by Lord Kingarth. [38] It may well be that as the years have passed, public expectations as to the value of claims has substantially increased. An increase in the standard of living may be relevant to this. So also may be public awareness of high figures for prices, earnings and other financial indicators. However, the extent to which this may affect the value attached to the loss of society of a deceased relative is a matter for speculation. This is an area within which there may be scope for some research into public attitudes. We note that an initiative by the (English) Law Commission along these lines was, with some reservations, found to be of some assistance by the Court of Appeal in Heil v. Rankin [2001] QB 272, which is referred to in the course of Mr. Hajducki's article, when that court was considering the level of awards in its jurisdiction in respect of general damages for pain, suffering and loss of amenity.