Thursday, November 23rd, 2017
George Edward Manson & Others v Henry Robb Limited [2017] CSOH 126
Robert Milligan QC and Calum Wilson of Compass Chambers represented the pursuers. David Sheldon QC, also of Compass Chambers, represented the defender in this first instance decision heard by Lord Clarke.
Background
This was a Proof on quantum, following the death of George Manson (‘the deceased’) from the asbestos related condition, mesothelioma. The action was brought by his two sons, as individuals and as Executors Nominate, and his widow, the third pursuer.
Issues in dispute
The only issues in dispute between parties were:
The amount of compensation which fell to be paid by the defenders to the pursuers in terms of section 4(3)(b) of the Damages (Scotland) 2011 Act, where the deceased was at an advanced age at the date of his death, but where the relatives in question had lived with him as a family until the date of his death and had formed with him a particularly close relationship; and what sum fell to be payable in compensation for the loss of services provided by the deceased under section 9 of the 2011 Act.
Senior Counsel for the pursuers relied particularly upon the fact that all of the pursuers, living as they did with the deceased, witnessed, on a continuing basis, the suffering the deceased endured during his fatal illness and that his death clearly had a “devastating effect” on all of them. It was also submitted that the Court required to seek to achieve “consistency” as between jury awards and awards made judicially in fatal cases.
Senior counsel for the defenders argued that against these factors had to be placed the age of the deceased at the date of his death and his life expectancy at that date, particularly having regard to other illnesses he had been suffering from.
In a written opinion Lord Clark accepted Senior Counsel for the pursuers submission that the task of the Court, in making a judicial award in a fatal case, is to be carried out with regard to the level of jury awards in similar cases, so as to ensure a level of consistency between judicial awards and jury awards. Whilst at the same time highlighting that the cases to which parties referred in submissions all, understandably, differed to a greater or lesser extent, particularly with regard to the ages of the parties, the duration of their relationships and the life expectancy of the deceased at the date of death.
As such, Lord Clark made the following awards under section 4(3)(b):
- £75,000 to the third pursuer, the deceased’s widow;
- £30,000 to the first and second pursuers, the deceased’s sons, as individuals
Lord Clark also made an award of £9,000 to the third pursuer in respect of loss of services under section 9 of the 2011 Act.
A copy of the decision can be found here.