Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 15
PD381/08	OPINION OF LORD BRODIE in the cause ELIZABETH STUART and OTHERS Pursuers; against THE ADVOCATE GENERAL FOR SCOTLAND Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: Marshall, Solicitor Advocate; Thompsons

Defenders: Olson, Advocate; Morton Fraser

6 February 2009

[1] This is an action for damages for reparation against the Advocate General for Scotland as representing the Ministry of Defence and the Department of the Environment at the instance of the executors of the late George Smith Stuart, who was born on 25 September 1917 and who died on 7 December 2006. In this Opinion I shall refer to Mr Stuart as "the deceased".

[2] The action called before me for proof on 27 January 2009. The pursuer was represented by Mr Marshall, solicitor advocate. The defender was represented by Mr Olson, advocate. The witnesses led on behalf of the pursuer were Mrs Elizabeth Stuart, the widow of the deceased; and Dr Ronald John Fergusson MD, Consultant Respiratory Physician. No witnesses were led on behalf of the defender. The evidence given by these witnesses was essentially uncontentious. It was not suggested that they were other than credible, or, in Dr Fergusson's case, appropriately qualified to give authoritative opinion evidence. That would, in any event, have been my assessment. Mr Olson submitted that Mrs Stuart was not reliable in her recollection about dates and symptoms. In a sense that is true. Mrs Stuart did not claim to be able accurately to correlate the onset of her late husband's symptoms with a particular date. She provided an estimate but did not pretend that it was other than an estimate. Accordingly, I would not regard her evidence as unreliable, merely, as is entirely understandable, that it was not precise when it came to dates.

[3] There was a large degree of agreement between the parties as to the salient issues in the case. By Joint Minute, No.19 of process, it was agreed that the deceased was employed by the Ministry of Defence and the Ministry of the Environment; that in the course of that employment he was exposed to asbestos dust; that the exposure was negligent (in the sense that exposure was due to negligence on the part of those for whom the defender was responsible); and that as a result of this exposure the deceased developed asbestosis.

[4] The claim for damages is made in respect of loss of respiratory function and consequent disability due to the deceased's asbestosis becoming symptomatic towards the end of his life. The heads of damages are solatium; a claim for reasonable remuneration in respect of services provided to the deceased by reason of his disability, in terms of section 8 of the Administration of Justice Act 1982; and a claim for a reasonable sum by way of damages in respect of the inability of the deceased to render personal services to his wife in terms of section 9 of the 1982 Act. These claims are all rights to damages in respect of personal injuries which were vested in the deceased immediately before his death and transmitted to his executors in terms of section 2(1) of the Damages (Scotland) Act 1976, as amended.

[5] The relevant facts were in short compass and not really in dispute. The deceased and Mrs Stuart married on 31 July 1998, following the deaths of their respective former spouses. The deceased was then 80 and Mrs Stuart was some 14 years younger. Until shortly before the deceased's death they lived together in an upper floor flat at 23 Warriston Avenue, Edinburgh. They were an active couple with a busy social life who enjoyed taking long walks and going shopping together. They took two or three holidays a year and travelled extensively, visiting Australia, New Zealand, Canada, the United States of America and South Africa as well as destinations in Europe. The deceased had had a number of ailments, including osteo-arthritis, prior to the onset of symptoms secondary to asbestosis but nothing to cause material disability. Dr Helen Rodgers, the Consultant in Respiratory Medicine to whom the deceased was referred and who saw him on 14 June 2005 described him at that time as an "extremely fit 88 year old man" and this would be consistent with what Mrs Stuart had to say about him. Mrs Stuart further explained that the deceased had served for a time in the Navy and, perhaps as a result, was competent in a number of domestic tasks, including ironing and hoovering with which he helped in the house. The deceased was a non-smoker.

[6] On 7 April 2005 the deceased attended on his general practitioner complaining of recent shortness of breath on exertion. No previous complaint of breathlessness appears in the medical records. He was referred to the Western General Hospital for x-ray which was apparently carried out the same day and reported on on 8 April 2005. That and a further x-ray taken a month later indicated well established pulmonary fibrosis. This was confirmed by the CT scan examined on 25 July 2005 which showed widespread bilateral peripheral interstitial changes with small areas of interlobular septal thickening. There were areas of cystic change peripherally in both lungs associated with traction bronchiolectasis (scarring of the airways with consequent reduction in capacity). Respiratory function tests were indicative of reduced lung volume but, more critically, there was found to be marked reduction in carbon monoxide gas transfer and therefore the ability to oxygenate the blood.

[7] The clinical signs documented in the medical records were all consistent with and explanatory of the symptoms noted there and described by Mrs Stuart. Put shortly, over a period beginning some time prior to April 2005 the deceased became increasingly breathless on exertion with consequent loss of mobility. Mrs Stuart spoke of the deceased not being able to walk distances, not going out socially, remaining in the car when they went out shopping together, and being no longer able to help in the house. With a view to assisting the deceased, she insisted on the installation of a stair lift on the external stairway at 23 Warriston Avenue in May 2005. Dr Fergusson had never met the deceased but from his review of the records he estimated the degree of his respiratory disability from about April 2005 as being of the order of 30%. Mr Olson did not seriously dispute the accuracy of that assessment.

[8] There was some evidence that in the last 18 months or so of his life, the deceased might have suffered from cardiac insufficiency associated with pleural effusion. That is a possible explanation for some of the changes seen on x-ray carried out in April and May 2005. The deceased's general practitioner appears to have suspected cardiac involvement as at March 2006. Cardiac insufficiency and pleural effusion may contribute to breathlessness. Mr Marshall conceded that a reading of the medical records suggested that by August 2006 there was a significant cardiac component in the deceased's rapidly deteriorating state of health but, relying on the evidence of Dr Fergusson, he submitted that it was not established that heart failure had made any material contribution to the deceased's disability before then. I accept that.

[9] In summary, I consider that the deceased's estate is entitled to damages by way of reparation in respect of a period of about 18 months, or just a little more, during which the deceased was significantly disabled by reason of breathlessness consequent upon pulmonary fibrosis. In coming to this view I have taken the onset of symptoms to have occurred before April 2005 but not long before. In that it is necessary to fix a date for the purpose of interest I will take that date to have been 1 January 2005.

[10] Mr Marshall referred to a number of cases in support of his submission that solatium should be assessed at the sum of about £12,500: Cook v Wyvern Structures Ltd 2001 S.L.T.1212, Kerr v Newalls Insulation 1997 S.L.T.723, McKenzie v Cape Building Products 1995 S.L.T.695 and 701, Hynes v Lobnitz 2008 Rep.L.R.98, Lightbody v UCS 1998 S.L.T.884, Henson v Brough & Kemp K3-003, Wilding v Centura Foods Kemp & Kemp K3-018.1, Ryan v BRB Residuary Kemp & Kemp K3-019, and Gallagher v Vintners Armstrong G Kemp & Kemp K3-021.1. Instructive as this survey was, I do not intend to discuss all the cases cited because, in the end, Mr Marshall only relied upon one as nearly analogous to the present case and that was Cook v Wyvern Structures Ltd. There Lord Nimmo Smith made an award of solatium in the sum of £10,000 where the deceased had been disabled to the extent of 35% by reason of asbestosis for the period from 1986 until his premature death (from an unconnected cause) in 1992. Mr Marshall advised me that, as adjusted for inflation, the value of the solatium award in that case would now be £12,487. The deceased in Cook was 75 years of age at the date of his death. There was evidence that he might have been expected to live for 5 years beyond the date of his death, had it not been for a terminal disease unconnected with asbestos exposure. This fact and what was said in Cook gave rise to a submission by Mr Marshall which I feel bound to record but to which I did not give effect.

[11] Mr Marshall's proposed technique for analysing the facts of the present case with a view to comparing them with the facts in previously decided cases and so finding an appropriate figure for solatium has its basis in the uncontroversial proposition that a case where, for example, the Court has to assess solatium to be awarded to a purser who is 75 years of age and who has suffered symptoms of breathlessness consequent on asbestosis, is not precisely analogous to a case where executors seek damages for the estate of a deceased who died aged 75 having suffered the same symptoms over the same period. In the first example the solatium award will have to take into account the pain, suffering and loss of function which the pursuer may be expected to experience over the remainder of his life. In the second example that will not be a component in the award. On that unexceptional proposition, Mr Marshall erected what appeared to me to be an unnecessarily complicated approach to the present case. This involved determining when the deceased might have been expected to die had the only condition significantly impacting on his health been asbestosis. Based on what I took to be a very broad estimate given by Dr Fergusson when asked to consider the matter as at 2005, Mr Marshall suggested that the deceased might have been expected to survive until about 2008 when he would have been about 91 years of age. According to Mr Marshall, a figure for solatium should be assessed on this hypothesis which would mean the deceased should be taken to have suffered symptoms for approximately 4 years rather than the approximately 18 months for which he in fact suffered symptoms. That figure would then be adjusted downwards to allow for the fact that the deceased did not suffer symptoms over the hypothetical period but only over the actual period. In fairness to Mr Marshall something like his proposed method was put forward by counsel in Cook and not adversely commented on by Lord Nimmo Smith. I can see that the method might have some purpose where it was proposed to compare cases which were closely analogous but for the fact that in one instance a pursuer was a particular age at the date of proof and in the other instance a deceased had died at the same age having suffered equivalent symptoms over the same period as the living pursuer in the first instance. However, it is not a method which has commended itself to me in the present case. I would see it as unnecessary and, insofar as based on very precarious evidence as to life expectancy, frankly spurious. Rather than embarking upon the exercise proposed by Mr Marshall, I have considered it appropriate to begin with the case of Cook which is the only one of the cases to which I was referred which it was suggested was at all closely analogous to the present case. There Lord Nimmo Smith made an award of solatium which in present values might be stated as £12,500, in respect of a deceased who had suffered symptoms of breathlessness secondary to asbestosis superimposed on which were the effects of emphysema over a period of about 6 years. His degree of respiratory disability was assessed at about 35%. The deceased in the present case was significantly older when he suffered symptoms but, in the absence of satisfactory evidence to the effect that he would have suffered from breathlessness irrespective of whether or not he had asbestosis, I do not attach great significance to that distinction. On the other hand, it does appear to me appropriate to have regard to the fact that the deceased in the present case suffered symptoms over a period which I have estimated as being 18 months or just a little longer, whereas in Cook the deceased suffered symptoms over a much longer period. Mr Olson submitted that the only logical approach was to make an award in the present case which was no more than one-third of the amount awarded in Cook, given the fact that the deceased in the present case suffered symptoms for a period of no more than 2 years. While I see the force of that submission, I am not inclined to adopt an overly arithmetical approach. While bearing in mind that the deceased's disability was not sufficient to undermine his determination to undertake a trip to Majorca in the early part of 2006 and a final holiday to Greece in September of that year, I considered that the figure put forward by Mr Olson is too low. I would assess solatium at £7,000.

[12] In assessing the appropriate award to be made under reference to section 8 of the Administration of Justice Act 1982, I should make clear that I have no reason to doubt but that Mrs Stuart was a devoted wife who will have provided all appropriate care to her husband as he neared the end of his life. That said, there was very little evidence led as to what were the "necessary services" that were rendered by Mrs Stuart consequent upon the deceased's asbestosis related condition. She accompanied him on out-patient hospital appointments. As Mr Marshall submitted, I would regard it as reasonable to infer that she assisted with mobility. She helped the deceased get dressed. She helped him go to the toilet and sometimes she cleaned up after him. When Mrs Stuart was giving such evidence as she did about the matter, it was not clear as to what period she was referring to and I saw force in Mr Olson's submission that when, for example, she referred to assisting the deceased to the toilet, she probably was referring to a period not long before his death when some reference is made to this in the hospital records. I fully appreciate that this sort of evidence is difficult to lead. As Mr Marshall submitted, a relative cannot be expected to keep a diary of the care she provides. She cannot be expected to provide great detail about what may have been a matter of domestic routine. She may find it distressing to reflect overly upon what was a stressful period in her life and the life of the deceased. That said, the Court cannot substitute speculation for evidence and I consider that Mr Olson was entitled to submit, as he did, that the Court had heard very little as to what it was that Mrs Stuart had done for her husband and, importantly, when she had done it. I was referred to the decisions in Murray's Executrix v Greenock Dockyard Co Ltd 2004 S.L.T.346, Ryan v Fairfield Rowan Ltd 2004 Rep.L.R.138, and Renfrew v Lithgows Ltd [2008] CSOH 118. These cases demonstrate that it is not necessary to lead very precise evidence as to hours spent in care or the cost of providing such care commercially, at least in cases where a relative can be taken to have provided more or less full time support to the injured person by reason of his disabilities due to the harmful event in respect of which damages is being awarded. In the present case I accept that necessary services were rendered. However very little detail was provided as to what they were and when they were rendered. Accordingly I do not see it as being appropriate to allocate a substantial weekly figure to the period of disability as was done in the cases cited to me. In the circumstances I would attribute the sum of £2,000 to this head of damages. As far as the claim under reference to section 9 of the 1982 Act is concerned, I would assess damages at the sum of £500. Again, there was very little evidence to support this head of damages but it appears to me that it would inappropriately trivialise matters were I to make an award in a lesser sum.

[13] The total sum awarded in damages accordingly amounts to £9,500. Interest is payable on that sum at the rate of 4% from 1 January 2005 until 7 December 2006 and thereafter at the rate of 8% until payment.

[14] I shall reserve all questions of expenses.