An analysis of the law relative to quantification of damages in fatal claims north and south of the England/Scotland border

Executive summary

On 3 November 2021, the Queen’s Bench Division of the High Court handed down its decision in the fatal mesothelioma case of Haggerty-Garton & Ors v Imperial Chemical Industries Ltd [2021] EWHC 2924 (QB).

This article will:

• Address the jurisdictional issues that arose in this case,
• Consider the level of the awards made by the High Court and how those fit in with the awards in previous Scottish cases, and
• Promote a broader discussion on the jurisdictional differences in the assessment of damages in fatal claims north and south of the border.

Background

Whilst the Haggerty-Garton case was tried in England, Scots law was applicable to the assessment of liability and quantum given that the exposure took place in Scotland. The deceased was exposed to asbestos whilst employed by the defendants between 1973/74 and 1978/79 at the ICI Factory in Ardeer, Stevenston, Scotland.

The action was brought by the deceased’s wife on her own behalf and on behalf of her three sons. The deceased’s two daughters (from a previous marriage) were also claimants in the action, as were his two sisters and his granddaughter but their claims were all settled in the days prior to the trial commencing.

Given that Scots law was the applicable law, this had significant implications for the defendants (or more likely for their EL insurers). This is because the damages for non-patrimonial losses that are to be paid to the relative of a deceased under Scots law far exceed the equivalent bereavement award that would have been payable had English law been applicable.

Scotland v England — bereavement damages

In England and Wales, in terms of the Fatal Accidents Act 1976, it is a tariff award that is paid to bereaved relatives which is currently fixed at £15,120 for deaths after 1 May 2020. This is divided between all eligible relatives. The class of eligible relatives is restricted to a spouse, civil partner, parents of a legitimate child under the age of 18 or a mother only of an illegitimate child under the age of 18. This was extended in October 2020 to cover cohabiting partners who have lived with a deceased for two years prior to their death. Controversially for the current day and age, fathers of children born out of wedlock cannot claim for the death of a child under 18.

Comparatively, in Scotland, the class of relatives who can claim for the distress, grief and loss of society in terms of section 4(3) of the Damages (Scotland) Act 2011 is much broader, as follows:

• Spouse or civil partner or anyone living with the deceased as if married to or in civil partnership with him/her immediately before the death.
• Any parent of the deceased or anyone who accepted the deceased as a child of the person’s family.
• Any child of the deceased or anyone who had been treated by him/her as a child of the marriage or civil partnership (e.g. stepchildren or adopted children)
• Any brother or sister of the deceased or anyone who was brought up in the same household as the deceased and was accepted as a child of the family.
• Any grandparent or grandchild of the deceased or anyone who accepted the deceased as a grandchild or who was accepted by the deceased as a grandchild.

The amount of the damages is not restricted by a tariff like it is in England and Wales. Rather, the awards have been determined on a case by case basis. Examples of the highest awards in recent years have been figures of between £90,000 and £100,000 in 2010 to the parents of young servicemen killed in the line of duty (“the Nimrod cases”) which awards are worth considerably more in the present day.

So why has the position north and south of the border become so disparate? Many claimants’ agents in England and Wales have drawn the analogy that it can be cheaper to kill someone than to seriously injure them. Indeed, an award for a leg fracture causing nuisance level residual disability could secure a greater award for the pain and suffering aspect than a relative is entitled to claim for the grief and sorrow from the death of a close family member.

The Association of Personal Injury Lawyers (APIL) has been conducting research for some years on the levels of bereavement awards that should be made to relatives in England and Wales who have lost a loved one as a result of someone else’s negligence. In a survey conducted in 2013, over 80% of the 2,000 people surveyed believed the Scottish system for awarding non-patrimonial damages to bereaved relatives to be fairer than the English and Welsh system. APIL has thus been campaigning for a change in the law in England and Wales proposing instead an approach akin to Scotland and in April 2021, APIL published its research paper ‘Bereavement Damages: A Dis-United Kingdom’. This paper examines the different laws across the UK and shares the stories of those who have been impacted by the respective laws. It also includes exclusive YouGov research, commissioned by APIL, on public attitudes to the law on bereavement damages; 69% believe £15,120 is too little compensation and 73% believe that the amount of compensation for grief and trauma should vary according to the circumstances of each case.

In Scotland, predicting the level of awards for distress, grief and loss of society is not straightforward and requires a careful analysis of the relationship that the relative held with the deceased and comparing that to previous awards made by both judges and juries. The law is now settled in Scotland that in assessing the level of awards for loss of society, judges should have regard to jury awards in comparable cases as well as past judicial awards. Since the Nimrod cases in 2010, there has been a general upwards trend in the awards being made by juries and judges alike to relatives who have lost their loved ones.

The court’s decision in Haggerty-Garton

The day before the trial commenced, all of the relatives' claims except the widow’s were settled. The trial proceeded in relation to the assessment of (i) the award of solatium (equivalent to general damages reflecting pain, suffering and loss of amenity) due to the deceased’s estate, (ii) the section 4(3) awards for distress, grief and loss of society due to the widow both in her own right and on behalf of her three sons and (iii) the services awards.

Firstly, in assessing the value of the solatium claim, the court noted that the claimant first developed symptoms in December 2017. In June 2018, he received the diagnosis of mesothelioma and by November 2018, he was housebound and the first claimant was caring for him full time. He passed away on 2 January 2019 aged 63.5. He had quite a significant medical history including chronic back and neck pain with associated disc issues, depression, dyspepsia, gastro reflux and excessive alcohol consumption. His life expectancy was agreed between the parties to be 22.4 years. This is something the judge considered carefully in assessing the appropriate award for solatium and compared the loss of life expectancy and consequent loss of life element in the context of what the deceased would have known was being taken away from him. The claimants’ figure for solatium in their schedule was £100,000 with the figure in the defendants’ counter-schedule being £75,000. The judge determined that an award of £97,250 should go to the estate for solatium which is towards the upper end of the relevant bracket in the Judicial College Guidelines for mesothelioma of £59,730 to £107,410.

In assessing the widow’s section 4(3) claim, the court carefully considered the nature of their relationship noting that they had been in a relationship for only four years prior to his death. Mr Justice Ritchie found that, despite the shortness of their relationship, they had built a life together in which they were happy and they would have remained together for the rest of the deceased’s natural life, but for the development of mesothelioma. He found no force in the submissions made on behalf of the defendants that because they had only been together a relatively short period of time, their relationship would not have lasted.

The judge looked carefully at previous awards in Scotland both by judges and juries to spouses. He had regard to the most recent award by the Scottish courts to a spouse in the case of Andrews v Greater Glasgow Health Board [2019] CSOH 31 of £80,000 but differentiated that on the basis that life expectancy was shorter and the fact it was a sudden death and not a mesothelioma case. He referred to another recent Scottish case of McCulloch v Forth Valley Hospital [2020] CSOH 40 in which the widow of a 39-year-old was awarded £126,242 (this figure was not determined by the court but rather was a matter of agreement between the parties). He also drew guidance from the earlier Scottish authorities of Gallagher v S C Cheadle Hume Ltd [2014] in which £99,950 was awarded to the widow of a 70-year-old, Stanger in which £140,205 was awarded to the widower of a 64-year-old and Anderson v Brigg Brae [2015] in which £166,226 was awarded to the widow of a 33-year-old (all values are in today’s value). Taking all this into account, the judge determined that the figure of £115,000 should be awarded to the widow for section 4(3) distress, grief and loss of society which sits roughly in the middle of the range of awards from the previous authorities referred to. Clearly, no discount has been applied by the judge to reflect the short duration of the relationship prior to death.

Turning to consider the claims on behalf of the three stepsons, the judge considered that the deceased had developed a close and warm relationship with them, adopting the role of house husband, frequently dropping them at school and that he was a good stepfather to them. He had built a relationship with them based on football in the park, watching football and playing pool in the pub, driving them around and being very present in their lives. Two of the sons never knew their natural father and the deceased had become a father figure to them. To quote the words of Mr Justice Ritchie “Being a stepfather is not an easy role, but he succeeded.”

Looking at previous awards to children, in Gallagher v S C Cheadle Hume Ltd [2014], £41,798 was awarded to children in their 30s and 40s; in Stanger, £58,418 to children in their 40s; and in Anderson v Brigg Brae [2015], £94,986 to a baby that was only weeks old. Generally, the courts in Scotland have made higher awards to children of tender years who are still living at home, than to adult children. To the two stepsons who had lived with the deceased, the judge awarded £40,000 with a lesser award of £35,000 to the eldest stepson who lived some of the time with his natural father. It is apparent that the judge has given some regard to the step relationship and the fact that the children had only known the deceased for a few years prior to his tragic demise. These are still significant awards to stepchildren, however, which is a scenario that requires to be assessed not infrequently in the defence of fatal claims such as this.

Finally, the court assessed the amount to be paid in respect of section 8 and section 9 services. The care that the widow provided to the deceased (section 8) was assessed at £13,320. As for the care that he would have provided to the family (section 9), this was assessed at £19,980 to the past and £52,390 to the future. Interestingly the judge determined an hourly rate of £12 per hour to be appropriate having regard to the Facts and Figures published by Sweet & Maxwell in 2019 for handymen, cleaning and housekeeping. This rate is high and something that should be borne in mind when assessing reserve for services in fatal claims.

Conclusions and implications

A finding that damages in a fatal claim have to be assessed with reference to Scots law rather than English, as occurred in the Haggerty-Garton case, is a disastrous one for defendants and their insurers. Had the Haggerty-Garton case been assessed under English law, by contrast, there would have been a statutory entitlement to £12,980 for bereavement for the widow only. The equivalent awards (that we know of) in this claim total £230,000 and this does not include the two daughters, two sisters and the granddaughter’s claim, which were all agreed out of court.

Another significant difference arising from the assessment of damages in this case with reference to Scots law is the applicable interest rate. The rate of interest under Scots law is much more generous than English law; 8% and 4% in Scotland and 2% and 0.1% in England. The total figure for interest in this case was in excess of £40,000, which grossly exceeds what the comparative figure would have been in England.

As can be seen, the reserve for a fatal claim will increase significantly if Scots law is deemed applicable.

There are clearly changes afoot and it will be a case of watching this space to see whether the campaigning on the part of APIL will prompt the UK Government to reconsider their position. APIL are determined to influence a change of the law in England and Wales with a view to bringing it into line with the legal position that prevails north of the border for the compensation of relatives who have lost a loved one.