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The recent High Court decision in the case of Haggerty-Garton and Others v Imperial Chemical Industries Limited provides a stark reminder of the increasingly widening gulf in the level of damages in fatal claims between Scotland and England. For the first time an English Court applied Scots law in quantifying damages in a mesothelioma claim, awarding sums far greater than what would have been recoverable under the laws of England and Wales.
Background facts and circumstances
The executor and family of the deceased, David Haggerty, alleged that he had been negligently exposed to asbestos dust in the course of his employment at ICI’s factory premises in Scotland in the late 1970s. Part of his work involved removing friable asbestos lagging from pipework without any provision of adequate personal protective equipment or training about the dangers of asbestos.
The claimants (including the deceased’s widow, children, step-children, sister and grandchild) pled that the law applicable to the claim was Scots law under the Damages Scotland Act 2011, as the harmful act took place in Scotland. At first the defendants denied exposure to asbestos dust and argued that as any course of action occurred in England, the recoverability of any loss should be governed by English law under the provisions of the Fatal Accidents Act 1976. However prior to the trial, the defendants conceded liability, admitted that Scots law applied to the quantification of the claim and that the family members were entitled to make claims for Loss of Society (the Scottish equivalent of English bereavement damages). The blood relatives claims were settled prior to trial; the deceased’s two daughters received £50,000 each, his two sisters £18,000 each and his grandchild £18,000.
In assessing the claims for loss of society for the widow and three stepchildren, the Judge observed that the body of Scottish caselaw makes it clear that each case requires to be determined on its own facts with consideration to be given to both judicial and jury awards.
The deceased died aged 63 in January 2019 having incurred a loss of life expectancy of 22 years. Although the widow had only entered into a relationship with the deceased shortly before his diagnosis, and married him 6 months prior to his death, it was evident that their lives had become deeply entwined and they would have stayed together for the remainder of his natural life. The deceased had taken up the role of a house husband and had become actively involved in the lives of his step-children. The Judge rejected the defence counsel’s submission that the award for loss of society in respect of the widow should be lower than that awarded in a case where a couple had been together for 40 years or more and could be considered to be devoted to one another.
The Judge outlined that he could not compare the society of a man and woman with another couple unknown and he was satisfied that in the present action, the deceased and his widow’s relationship was deep and enduring. In the circumstances, he awarded the sum of £115,000 together with interest for loss of society which no doubt was influenced by the deceased’s 22 year loss of life expectancy. This award is considered to be at the upper level of loss of society awards in Scotland where the oldest case indexed up for inflation would fall just below £100,000.
The deceased’s two eldest step-children were awarded £40,000 plus interest each, reflecting the father figure role that the deceased had taken on and against a background where the two children had never had a relationship with their natural father. The third of the deceased’s step-children was awarded the sum of £35,000 plus interest where the relationship was perhaps not as close as the child resided with his natural father for part of the time.
By contrast had English law been applied, only the widow would have recovered damages for bereavement in the sum of £12,980 (increased to £15,120 from 1 May 2020) on account of the restricted class of eligible claimants and the capped bereavement award under Section 1(a) of the Fatal Accidents Act 1976.
Comments
Prior to the introduction of The Fatal Accidents Act 1976 (Remedial) Order on 6 October 2020, only husbands and wives or parents of a deceased minor could claim a bereavement award in England and Wales. The amendment extended recipients to unmarried partners who had co-habitated for two years prior to death. In contrast, under Scots law, the class of eligible claimants is wide - there is no maximum limit set for a bereavement compensation claim, with each case being determined on its own facts and the court has a wide discretion.
In addition the method of calculating interest on loss of society awards under Scots law is far more generous than under the English law provisions.
No doubt, Scottish claimants’ solicitors will refer to this decision when assessing loss of society awards. However, although this case has been determined on the basis of Scots law, it is an English decision and will not bind the Scottish courts.
A question arises as to whether the Scots law approach to bereavement ought to be followed in England as the current system does not reflect the realities of modern family relationships with pressure continuing to be maintained by APIL for reform.
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