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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cruickshank & Ors v. Fairfield Rowan Ltd & Ors [2005] ScotCS CSOH_1 (11 January 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_1.html Cite as: [2005] CSOH 1, [2005] ScotCS CSOH_1 |
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Cruickshank & Ors v. Fairfield Rowan Ltd & Ors [2005] ScotCS CSOH_1 (11 January 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 1 |
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A3543/00
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OPINION OF LORD BRODIE in the cause BRENDA CRUICKSHANK & OTHERS Pursuers; against FAIRFIELD ROWAN LIMITED & OTHERS Defenders:
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Fifth Pursuer: Maguire, Solicitor Advocate; Thompsons
Defenders: N R MacKenzie, Advocate; Biggart Baillie
11 January 2005
Introduction
[1] In this action arising from the death of the late John Cameron Cruickshank parties have successfully resolved almost every issue. I was invited to grant decree in terms of a Minute of Tender, number 20 of process, and a Minute of Acceptance, number 21 of process. I did so. That decree disposes of the claims for damages at the instance of the first through to fourth pursuers. The outstanding issue, which I have to determine, is the quantification of the claim for damages at the instance of the fifth pursuer. The claim is made solely under reference to section 1(4) of the Damages (Scotland) Act 1976. The claim may be described as being for a bereavement award. [2] I heard proof limited to the evidence of the fifth pursuer and a Joint Minute, number 22 of process. I found the fifth pursuer to be an entirely credible and reliable witness (as Mr MacKenzie, on behalf of the defenders, had unreservedly conceded) who gave her evidence with restraint.The facts
[3] John Cameron Cruickshank ("the deceased") died on 2 September 2001. At the date of his death he was 54 years old. His date of birth was 19 January 1947. The cause of the deceased's death was mesothelioma which was the result of exposure to asbestos dust while at work. The defenders admit liability to pay damages in accordance with section 1 of the 1976 Act in respect of the deceased's death. [4] The fifth pursuer is Mrs Annie Graham or Cruickshank or Little. She is the mother of the deceased. She is therefore a relative of the deceased who is entitled to an award of damages in terms of section 1(4) of the 1976 Act. [5] The fifth pursuer was born on 19 March 1922. She was therefore 79 years of age when the deceased died and 82 years of age at the date of proof. [6] The fifth pursuer married the deceased's father (also called John Cameron Cruickshank) on 10 October 1942. They had three children of whom only one, their daughter Margaret, now survives. The fifth pursuer was widowed in 1966. She remarried in 1986. Her second husband died in 1995. [7] The deceased had been of great assistance to the fifth pursuer when her first husband died in 1966. He was then living with her. He remained living with her until the date of his marriage, in 1972. After the deceased's marriage, he and the fifth pursuer continued to enjoy a good relationship. The fifth pursuer joined in family holidays. [8] The good relationship between the deceased and the fifth pursuer continued up to the deceased's death. They visited each other and kept in touch by telephone. On occasion the deceased helped the fifth pursuer with shopping and with doing the garden. The deceased had been particularly helpful and supportive at the time of the death of the fifth pursuer's second husband and the death of her elder daughter in 1997. The fifth pursuer described the deceased as "wonderful". Prior to the diagnosis of the deceased's illness he would look in to see the fifth pursuer perhaps once or twice per week. [9] The deceased first became aware of symptoms of what was later diagnosed as mesothelioma in January 2000. He was breathless and had difficulty in walking quickly. During the summer of 2000 the deceased told the fifth pursuer that he had been diagnosed as suffering from mesothelioma and had been told that he had perhaps six months to live. The fifth pursuer described herself as "shattered" when she learnt the news although she tried not to show it. She continued to visit the deceased between the summer of 2000 and the date of his death, albeit that there were occasions when he felt unable to cope with seeing her. As time went on the fifth pursuer found the deceased "pretty awful - dreadful". He had difficulty in speaking. He was in great pain. He was white and drawn, like an old man. [10] The deceased was taken into hospital on Saturday 1 September 2001. The fifth pursuer and other members of the family spent the day at the hospital. The deceased died the following day, at 10.45 pm. The fifth pursuer was with him. The pursuer described the deceased's death as a horrible one but she was glad to see him go because it meant that he was released from pain. She still misses his company and his advice. [11] At the time of the deceased's death he lived in Elderslie. The fifth pursuer lived in Renfrew, a journey of perhaps 10 minutes by car from the home of the deceased. [12] The fifth pursuer continues to live independently. She enjoys good general health. She has suffered from arthritis since about 2000. Otherwise she is well. She is not aware of suffering from any life threatening disease. I take her to have the life expectancy of any other woman of her age who enjoys generally good health.Submissions
Submissions for the fifth pursuer
[13] Mr Maguire, on behalf of the fifth pursuer, began by taking me through a series of decisions where awards had been made to parents in respect of the death of a child. All these decisions predated the amendment of the Damages (Scotland) Act 1976 by the Damages (Scotland) Act 1993. They were as follows: Donald v Strathclyde Passenger Transport Executive 1986 SLT 625, Devlin v Strathclyde Regional Council 1993 SLT 699, Harvey v Cairns 1989 SLT 107, Jarvie v Sharp 1992 SLT 350, and McWilliams v Lord Advocate 1992 SLT 1045. Mr Maguire provided inflation adjusted equivalents to the sums awarded as damages under section 1(4) of the 1976 in each of these cases. The range was from about £3000 to about £12,000. While the decisions included references to factors particular to the particular case, there was a broad correlation as between the quantum of the award and the age of the deceased child at date of death: the younger the child, the higher the award. The range of ages of the deceased in these cases was between 6 weeks and 21 years. It was Mr Maguire's submission that these cases were of limited value when considering a case such as the present which was of a middle-aged deceased and an elderly mother pursuer. Many of these cases were very old. They pre-dated the 1993 Act which had introduced as an element which had to be compensated by way of a section 1(4) award, the distress and anxiety endured by the relative in contemplation of the suffering of the deceased before his death. [14] It was, in any event, Mr Maguire's submission that the figures in these pre-1993 cases were too low, in the sense of being out of step with the expectations of the public. This was what had been reported by the Scottish Law Commission as having been represented to it: Report on the Effect of Death on Damages, Scot Law Com No 134, para 2.12; and it coincided with the impression of Lord Kingarth, as recorded in McManus Executrix v Babcock Energy Ltd 1999 SC 569 at 583D. That, in general, judicial awards in bereavement cases have been on the low side was recognised by the Lord President, delivering the opinion of the Court, in McLean v William Denny & Bros and Ors 2004 SLT 1099 at 1103J. [15] Mr Maguire next drew my attention to two jury awards: Wells v Hay 1999 Green's Rep L R 44 and Strang v Le Brusq 2001 Green's Rep L R 52, and the use that had been made of them by the Court in Shaher v British Aerospace Flying College Ltd 2003 SLT 791. It was the figure of £20,000 awarded by the Court to each parent in Shaher that Mr Maguire commended to me as the appropriate figure in the present case. He immediately recognised that the deceased in that case was much younger (19 years of age rather than 54) than the deceased in the present case. He further accepted that the Lord Ordinary in Shaher had found there to have been particular bonds of affection within the family and that the loss of the eldest son was of special significance in the circumstances of the case: 2002 SLT 833 at 834C. He was content that the decision of the Inner House in Shaher be understood as indicating that an award of 20,000 was to be regarded as being at the upper level of the range appropriate in this class of cases (by which he meant claims by parents in respect of the death of a child), it being his submission that the present case was one where such an award was appropriate. Mr Maguire accepted that the age of the deceased and the age of the pursuer were relevant factors but that they were simply relevant factors among other relevant factors. [16] Mr Maguire next turned to consider how the age of the deceased and the pursuer correlated to value. He referred to Davidson v Upper Clyde Shipbuilders 1990 SLT 329 and commended, in particular, the reasoning of Lord Milligan at 331 to 332 which, he submitted, was applicable to the present case. Awards in other classes of cases, however, while relevant, were not directly relevant: he was not suggesting that the older mother of an adult son should receive as much as an older widow claiming in respect of her deceased husband. [17] Having repeated that he accepted that the award in Shaher was to be taken as lying at the higher end of the spectrum of awards appropriate to this class of cases, by reason of its special circumstances, Mr Maguire pointed to the facts in the present case which he relied as amounting to special circumstances. All the elements which section 1(4) of the 1976 directed should be compensated for were present in this case. Mr Maguire reminded me what these elements were: (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; and (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. Here, in contrast to the position in Shaher, where the death was in an accident, the fifth pursuer had had the experience of contemplating the suffering of the deceased from February 2000 until September 2001 in what was a painful and debilitating final illness. She had spoken in evidence to her distress and upset. She had witnessed her son's death. She had been particularly dependent upon her son since the death of her second husband. They enjoyed a close relationship. It was difficult, Mr Maguire submitted, to see any differences between this case and that of Shaher that would have the effect of reducing the level of the appropriate award. He therefore urged me to award £20,000 in this case. As for interest, Mr Maguire proposed that it should run at 4 per cent per annum until the date of decree on three quarters of the damages awarded and thereafter at 8 per cent.Submissions for the defenders
[18] Mr MacKenzie, on behalf of the defenders, put forward £3000 to £4000 as the range of awards appropriate to the case, with interest running on half the sum awarded at 4 per cent per annum. The case fell within the particular class of claims by parents in respect of the death of children and when a judge sitting without a jury was called on to make such an award particular regard should be had to previous awards by judges in this class of case. This case did not have the exceptional features that had been present in Shaher: this was not a case of the death of the eldest son of a devout Moslem family into whose career and future enormous emotional effort had been poured. As far as paragraph (a) of section 1(4) of the 1976 Act was concerned (distress in contemplation of suffering), the period of the deceased's suffering was easily identified and finite; as far as paragraph (b) was concerned (grief and sorrow on the death), this must depend on the facts of a particular case, like being compared with like; as far as paragraph (c) was concerned (loss of non-patrimonial benefit), the inference must be that the fifth pursuer had the satisfaction of seeing the deceased growing up, going to school, obtaining a job, getting married and having children, and surviving into middle age. What she had lost was the company of the deceased perhaps once or twice a week during her later life. The fifth pursuer had not lost, as the parents of a small child might lose, that aspect of society which is made up of a parent's satisfaction at his or her child's successful progress in life. It was to be borne in mind that while the fifth pursuer had an expectation of life of a period of years it was not a very long period of years, when compared with the case of the much younger parent. Limited assistance was to be derived from the decision in Davidson v UCS. While what Lord Milligan said in that case is persuasive in the context of the relationship between spouses, it has less application when what is under consideration is the relationship of parent and child. The level of awards to widows was relevant only in the limited sense that the awards in one class of cases should be broadly proportionate to awards in other classes. [19] Mr MacKenzie commended Lord Kingarth's opinion in McManus' Executrix v Babcock Energy Ltd 1999 SC 569 as the most comprehensive analysis in a reported decision of judicial awards in respect of bereavement claims before and after 1993. McManus' Executrix had been referred to with approval by the Inner House in McLean. Mr MacKenzie drew seven propositions from McManus' Executrix and in particular that passage of the opinion reported supra at 582C to 583G: (1) that as the Scottish Law Commission had not intended, in putting forward their proposals for amendment to the 1976 Act, to change the basis of the loss of society award, it would be wrong to ignore the guidance that was to be derived from previous awards; (2) that it was nevertheless right to look at pre-1993 awards with care because they did not offer scope for the inclusion of the element of distress in contemplation of suffering; (3) that it would be wrong to assume that all the now relevant elements (a), (b) and (c) were present in previous cases, although they might have been; (4) that before the 1976 Act was enacted, solatium did include grief and sorrow but not loss of society; (5) that a single jury award did not constitute a pattern although a pattern of jury awards, once established, would be of plain assistance; (6) that loss of society (otherwise bereavement) awards have fallen out of step with the general level of awards of damages and this was particularly the case with awards to adult children in respect of the death of a parent; and (7) that whatever guidance may be afforded by previous cases, the court's task was to make an award which was fair compensation for the pursuer's loss. It was Mr MacKenzie's submission that Lord Kingarth's approach, as summarised in these propositions echoed the guidance provided by the Inner House in a line of authority relating to the assessment of solatium. He referred to the decisions in Butler v Adam Lynn Ltd 1965 SC 137 at 143, Barker v Murdoch and Ors 1979 SLT 145 at 146 to 147, Bowers v Strathclyde Regional Council 1981 SLT 128 at 125, and McCrum v Ballantyne 1993 SLT 788 at 789 to 790. [20] Mr MacKenzie stressed that what was being assessed when making a bereavement award was compensation in respect of the elements identified by section 1(4) of the 1976 Act. There was no support in the authorities for the mechanistic applying of a tariff. The age of the deceased was a factor but, admittedly, not the only factor: Devlin v Strathclyde Regional Council 1993 SLT 699 at 703D. The facts of a particular case were important, however unappetising the task of comparing, for example, one mother's loss with another mother's loss might be. The court should avoid making an excessive award by reason of sympathy: M'Callum v Paterson 1968 SC 272 at 286. [21] Mr MacKenzie referred me to an article by Mr Andrew Hadjucki QC, Changing Values: Bereavement Awards in the Post-Shaher World, 2003 SLT (News) page 189 (which had been referred to in McLean) for a useful presentation, in tabular form, with the damages awarded stated in 2003 values, of all reported bereavement awards made since the decision of the Inner House in Dingwall v Walter Alexander & Sons (Midland) Ltd 1981 SLT 313. Mr Hadjucki's Table 1 set out the awards for loss of a child. Mr MacKenzie pointed to the pattern displayed by the judge-made awards, if one laid aside that in Harvey v Cairns 1989 SLT 107: the greater the age of the child, the smaller the award. The lowest figure, as adjusted to 2003 values, was that of £2000 in Wotherspoon v Strathclyde Regional Council 1992 SLT 1090, awarded to a mother of 58 in respect of the death of a 40 year old. Even if it was accepted that the general level of awards in these cases is too low and that therefore there should be some uplift in the amounts of damages awarded, one should not conclude on the basis of the very special case of Shaher that the uplift from the Wotherspoon award should be by a factor in the order of 10, as suggested by Mr Maguire. [22] Mr MacKenzie then responded to the points advanced by Mr Maguire as justifying a sum equal to the award made in Shaher. It was Mr MacKenzie's position that the pre-1993 awards remained of relevance, although regard was to be had to more recent guidance. This was not, contrary to what Mr Maguire had submitted, a special case. Rather, it was no more than a case where all the elements identified in the three paragraphs of section 1(4) were present. If one assumes that the upper limit of awards in this class of cases is £20,000, there is nothing to put this case at that level. [23] Mr MacKenzie concluded by drawing my attention to the awards recently approved or made by the Inner House in McLean and Murray's Executrix v Greenock Dockyard Co Ltd 2004 SLT 1104 and the solatium award made by the temporary judge when Murray's Executrix was in the Outer House (reported at 2004 SLT 346). The award of £47,500 as solatium in respect of the suffering of the deceased prior to his death as a result of mesothelioma, made by Mr J Gordon Reid QC in Murray's Executrix was not challenged on appeal. The widow's bereavement award was however reclaimed against, as was that made in favour of the deceased's married daughter who was 32 years of age at the date of her father's death. The figures substituted by the Inner House were £28,000 (the same figure that was awarded to the widow in McLean) and £10,000, respectively. Mr MacKenzie acknowledged that bereavement awards in one class of cases were not directly relevant to the quantification of claims falling within another class but it was his submission that if an award was to be "just", which is what section 1(4) required, it must be broadly proportionate with the generality of other awards and, in particular, other bereavement awards. It was Mr MacKenzie's submission that to award £20,000 to the fifth pursuer in what was not a special case, as suggested by Mr Maguire, would not be to do comparative justice when regard was had to the various awards in McLean and Murray's Executrix.Discussion
[24] Section 1 (4) of the 1976 Act provides:" If the relative is a member of the deceased's immediate family ...there shall be awarded ... 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."
I accordingly require to assess the sum of damages that I think is just by way of compensation in respect of certain identified adverse consequences that the fifth pursuer has suffered by reason of the death of her son. I have no difficulty in finding that each of these three elements identified in section 1(4) is present in this case. Mr MacKenzie did not suggest otherwise.
[25] For all that their submissions pointed to rather different figures as sums of damages which were, so it was argued, in the circumstances of the case, just, the respective approaches of Mr Maguire and Mr MacKenzie were not fundamentally different. There was substantial common ground, which I would identify as follows. A bereavement award is made "by way of compensation". It is not to be quantified by reference to a tariff. Rather, the sum of damages is to be assessed by reference to the particular circumstances of the case, as disclosed in the evidence. There is therefore the possibility of a range of awards within a particular class of cases. There may be very special cases (such as Shaher) which will attract exceptional awards. This does not mean that the court is operating on an entirely blank canvas. In assessing damages a judge sitting alone is exercising a discretion on the basis of the evidence before him but if that discretion is exercised properly the resulting figure will fall within the "relatively narrow range" referred to by Lord Hope of Craighead in Girvan v Inverness Farmers Dairy 1998 SC (HL) 1 at 17 and in the Opinion of the Court in McLean supra at 1103E and L. The judge assessing a bereavement award must therefore have careful regard to reported cases with a view to achieving the consistency among awards anticipated by Lord Hope. As Lord Kingarth observed in McManus' Executrix supra at 583D, it is not for a single judge to substitute his personal views as to the value of bereavement awards for a consistent practice of assessing damages at a particular level. Where information was to be had about jury awards they should be had regard to: Murray's Executrix supra at 1106L. The requirement that there should be consistency as among awards is clear as among awards in a particular class of cases. There should also be a relationship as between awards in different classes. In Murray's Executrix supra at 1107A the Court referred to "a long standing and continuing hierarchy between different classes of cases" and in McManus' Executrix supra at 583D Lord Kingarth considered it worthy of comment that loss of society awards had fallen out of step with the general level of awards. A difficulty facing the judge wishing to achieve the consistency with decisions in comparable cases which, quite clearly, should be his objective, lies in the fact that there are only a few reported jury awards and it is generally agreed that the level of all but the most recent judge-made awards must now be regarded as being too low: McLean supra at 1103J. The awards made or approved by the Court in Shaher, McLean, and Murray's Executrix, can be seen as reflecting the need for an upward step adjustment in the level of awards but none of these awards were made in relation to circumstances directly analogous to the present case. It was at the point of how these authoritative decisions should be applied in making the assessment of damages in the present case and to what extent previous decisions were of any assistance that the approaches adopted respectively by Mr Maguire and Mr MacKenzie diverged. [26] Mr Maguire submitted that this, like Shaher was a "special" case (in McLean supra at 1102L the circumstances in Shaher are described as "very special"). Mr MacKenzie accepted that all the elements identified in section 1(4) were present but he did not accept that this was a very special case. I confess to some difficulty with the notion that it is possible to discern in the circumstances of one family, bonds of affection that are stronger or a degree of emotional investment in the future of a child that is more profound, than in the circumstances of another family, and so find the circumstances in the one case to be very special and in the other case not. However, for present purposes it is sufficient that I do not find the circumstances here to be "special". In so saying I do not mean in any way to disparage what was clearly a close, loving and supportive relationship as between the fifth pursuer and the deceased. It was a good relationship between mother and son but I cannot see any basis upon which I could conclude that it did not fall within the generality of such relationships. It follows, therefore that the appropriate award here would not fall at the upper end of the range for the class of claims by a parent for the death of a child. However, as Mr MacKenzie recognised, an element which must be compensated here which was not present in Shaher, was the distress and anxiety endured by the fifth pursuer in contemplation of the suffering of the deceased before his death. McLean was a case where this element was present. The Court approved an award in favour of the widow in the sum £28,000. It also took the opportunity to put forward a guideline figure of £25,000 in relation to a widow's claim where her spouse had died suddenly and there was no question of applying head (a) of section 1(4). That rather suggests that in a case broadly similar on its facts to McLean, head (a) might sound in damages to the amount of £3000 or thereby. In brief summary, the facts in McLean were that the deceased began to exhibit symptoms in the summer of 2000. He underwent investigation in hospital in November 2000. A diagnosis of mesothelioma was made on 1 February 2001. His condition deteriorated rapidly with attendant distressing circumstances. He died on 17 June 2001. As far as the deceased's history is concerned, McLean is therefore not a very different case from the present. It is of course the surviving relative's experience that is being compensated. I recognise that a wife living with a dying husband might be expected to encounter more distressing aspects of his condition more often than a parent who is living elsewhere. Nevertheless, I am not inclined to make too fine distinctions as between a wife's distress at contemplating her husband's suffering and a mother's distress at contemplating that of her son. The court is not required to ascribe specific values to the elements or heads identified in paragraphs (a), (b) and (c) and, moreover, I would regard it as wrong in principle to approach the assessment of damages as an exercise in identifying the various components within the claim, attributing a value to each and then adding the figures up but, having regard to the opinion of the Court in McLean, I approach assessment of damages in this case on the basis that an award of the order of £3000 would be justified having regard to head (a) alone. [27] In arguing for an award within the range of £3000 to £4000, Mr MacKenzie placed some emphasis on the age of the fifth pursuer and the age of the deceased. He pointed to the trend that can be seen illustrated in Mr Hadjucki's Table 1: the greater the age of the child, the smaller the award, with the death of adult children being compensated in quite modest sums. The oldest parent whose award in respect of the death of her child is reported is the sixth pursuer in Wotherspoon v Strathclyde Regional Council. She was aged about 58 at the date of death of her 40 year old son in a road traffic accident. She herself did not give evidence but she was described by the deceased's widow as reasonably close to her deceased son. They saw each other about two or three times a week. Her counsel suggested the sum of £1500 as appropriate in respect of her claim for loss of society, to which counsel for the defenders did not demur. In his Table 1 Mr Hadjucki states the value of that award as £2000 in terms of the value of money as at 2003. It was Mr MacKenzie's submission that looking to the trend in the decisions collected by Mr Hadjucki, all things being equal, the award for a 58 year old mother of a 40 year old child could not be more than that for the 79 year old mother of a 54 year old child. Even allowing for the fact that Wotherspoon was to be regarded as one of the awards which the Court in McLean described as being "on the low side" that would be more than accommodated by a 100 per cent uplift, indicating a ceiling for the award in the present case as being £4000.[28] Powerful as was that part of Mr MacKenzie's argument that focused on the age of the fifth pursuer, I was not persuaded to accept his conclusion. Wotherspoon, and the other judge-made awards in Mr Hadjucki's Table 1, all pre-date the amendment of the 1976 Act by the Damages (Scotland) Act 1993. Wotherspoon was a case of sudden death. The figure for the damages to be awarded to the sixth pursuer in that case was dealt with by concession, albeit that the figure fits into the pattern of other awards. Importantly, I do not see Mr MacKenzie's argument as taking into account Lord Milligan's observations in Davidson v Upper Clyde Shipbuilders Ltd supra at 331 to 332, to which I was referred by Mr Maguire. Now, Lord Milligan was discussing a claim at the instance of a widow in respect of the death of her husband (at the age of 58 and not 48 as would appear from Mr Hadjucki's table) and I was not persuaded by Mr Maguire that Lord Milligan's observation that the length of completed married life together will tend to exacerbate grief and loss of society applies directly to the case of mother and son. I would nevertheless see Lord Milligan's observations as providing a useful reminder, first that an older relative will suffer grief as well as a younger relative and, second, that while the period over which the older relative can be expected to suffer loss of society will be shorter than that applicable to the younger relative, it is in the period immediately following the death that such loss is likely to be experienced most acutely. Mr Maguire made the point in the course of his submissions that if one considers the elements or heads which, in terms of section 1(4), are to be compensated, two of them, (a) and (b), will relate in very large part to the period immediately following upon the death of the deceased. There is no obvious reason why an older parent should experience less distress and anxiety in contemplation of the deceased's suffering or less grief and sorrow at his death than would a younger parent. I accept that the position is different when it comes to element or head (c), the non-patrimonial benefit that the parent might been expected to derive from the child's society and guidance if he had not died. Mr MacKenzie submitted that among the non-patrimonial benefits that a parent might expect from the society of his or her child is the satisfaction of seeing the child grow up and take its place in life. The fifth pursuer here has experienced that satisfaction whereas the parents of a much younger child may not have done so. I would accept that that is so as I would accept that obviously, all things being equal, an older parent has a shorter life expectancy than a younger parent. That is not to say that even in the case of a parent of the age of the fifth pursuer in the present case that what falls to be compensated under reference to paragraph (c) is not substantial. Based on 1999 to 2001 experience of survival, on her 82nd birthday a woman in Scotland has a life expectancy of 7.17 years: 2003 Facts & Figures Tables for the Calculation of Damages, Professional Negligence Bar Association, Sweet & Maxwell, 2003. Neither Mr Maguire nor Mr MacKenzie took issue with the proposition that it is likely that a woman of the age of the fifth pursuer will live for something of the order of a further seven years. During the remainder of her life the fifth pursuer would have had the society and emotional support of the deceased had it not been for his premature death. She has, of course, already had the experience of more than three years without the company and assistance of her son. The widow in McLean was 67 years of age at the date of death of her 75 year old husband. The widow in Murray's Executrix was 63 at the date of her husband's death, as was her husband, whose life expectancy, had it not been for the fact that he suffered from mesothelioma, was found by the temporary judge to have been six and a half years. In Murray's Executrix, as in McLean, the Court found the widow's bereavement claim properly to be valued at £28,000. These awards indicate that a quite substantial figure may be appropriate in cases where the period in respect of which the deceased's society has been lost is relatively restricted.
[29] I see my task as finding a figure which, fully reflecting the facts of the case, is properly proportionate to the recent awards made or approved by the Inner House. I have thought it right to have regard to early judge-made awards but only insofar as indicating a trend or the inter-relationship of awards among different classes of cases. I would reject Mr Maguire's submission that this case is essentially analogous to the "very special" case of Shaher. I appreciate that, unlike in Shaher, the element of distress and anxiety in contemplation of the deceased's suffering, is a significant component in the heads to be compensated. Nevertheless in my opinion the damages here fall to be assessed at a figure less than that adopted by the Inner House in Shaher. I would equally reject Mr MacKenzie's submission that the admittedly low level of the older decisions would be more than adequately corrected by an upward adjustment of the order of 100 per cent from the sum of £2000 (in current values of money) agreed as between counsel in Wotherspoon. Much of course depends on impression, but that would remain my opinion even if such an adjustment was then augmented to take into account the element of distress and anxiety in contemplation of the deceased's suffering, which is a feature here but was not a feature of Wotherspoon. In considering what weight might be given to that element I have attempted to apply what I see as the guidance provided in McLean. That the fifth pursuer here is relatively elderly and the deceased had attained middle age is, as Mr Maguire and Mr MacKenzie agreed, relevant as pointing to a lower rather than a higher award but, agreeing with Mr Maguire, for the reasons that I have set out above I do not consider that age should be quite the dominant factor that a review of some of the earlier decisions might suggest. This indicates a figure somewhere below that suggested by Mr Maguire and somewhere above that suggested by Mr MacKenzie with only broad guidance from authority as to where Lord Hope's "relatively narrow range" might lie. However, I consider that assistance is to be got from looking at what was described in Murray's Executrix as the "long standing and continuing hierarchy between different classes of cases". As one can see from the material collected by Mr Hajducki in his article, awards made by judges to spouses have consistently been made at higher levels than those made to children or parents. Awards to both children and parents have tended to be age-related: the younger the pursuer the higher the award. As between awards to children and awards to parents a broadly similar range of figures has been established, suggesting some sort of approximate equivalence between the award that might be made to a young child in respect of the loss of his parent and the award that might be made to a parent for the loss of his young child, with a degree of correspondence being maintained in respect of increasingly older children. I am accordingly encouraged to the view that, in the absence of more directly analogous material, the Court's award of £10,000 to the 32 year old daughter of the deceased in Murray's Executrix provides a useful guideline figure in a case where paragraph (a) of section 1(4) is of relevance. That the deceased in this case was more than twenty years older than the second pursuer in Murray's Executrix argues, perhaps, for an award in favour of the fifth pursuer at a figure somewhat below £10,000. On the other hand, the fifth pursuer is an elderly lady living on her own not far from where the deceased resided. It might be thought that the value to her of her son's society might be greater than the value of the society of the deceased to the second pursuer in Murray's Executrix. The second pursuer in that case was married and, presumably, living with her husband. Looking at matters overall I am not inclined to reduce the fifth pursuer's award below £10,000 which, having regard to all the circumstances of the case, appears to me to be a just figure for damages in terms of section 1(4).Decision
[30] I shall accordingly award damages in the sum of £10,000. Interest shall run on from 2 September 2001 at the rate of 4 per cent per annum on three quarters of the damages until date of decree and then at 8 per cent per annum on the whole sum. [31] I reserve all questions of expenses not otherwise dealt with.
