Update - Damages in fatal disease claims
Posted: Friday 30 September 2011
Lord Docherty’s decision in Wolff & Others v John Mould (Kilmarnock) Limited & Weir Construction Limited has now been issued. This was a fatal mesothelioma claim arising out of the death of Mr Wolff at the age of 66. Considering the medical evidence presented in the case, Lord Docherty proceeded on the basis that the deceased’s life expectancy would have been a further 17 years.
The pursuers were claiming under the usual heads for the deceased’s pain and suffering prior to his death, funeral expenses, services and loss of support, but the most interesting element of this action was the Court’s analysis of the loss of society or section 1(4) claims (known as bereavement awards in England and Wales). This was the first fatal disease case heard by a Judge sitting alone following the series of high Jury awards for loss of society which the Scottish courts heard in 2010 and early 2011. In the present case, Lord Docherty assessed prior awards made to family members by both Judges and Juries. The updated figures which Judges have traditionally awarded when sitting alone would be somewhere between £35,000 and £41,000. In the past year, Juries have awarded widows between £90,000 and £100,000 under the same head of claim. None of those Jury awards was in a disease case. They related to deaths in road traffic accidents or accidents at work. In a recent road traffic case, the Judge awarded a widow £50,000 to reflect his assessment of the recent Jury awards which he felt illustrated that Judges’ awards were out of kilter with the public expectation of what this head of claim would be worth.
In this case, Lord Docherty agreed that loss of society awards should be increased. He awarded the widow £50,000 plus interest. This is obviously a considerable increase from what such cases have been considered to be worth in the past.
Lord Docherty also had to consider loss of society claims for the adult children and grand daughter of the deceased. From an analysis of the case law Lord Docherty determined that awards to adult children ought to be less than awards made to younger children. Taking into account both Jury and Judge awards, he awarded the adult children of the deceased £15,000 each. However, one of the adult children still lived at home, as a result of which she relied to a much greater extent than her sisters on her father’s companionship and guidance. She was awarded £18,000 to reflect that difference. Lord Docherty awarded the grand daughter £6,500. He considered that the bond between grandchild and grandparent is far less strong than that between child and parent, and the damages should reflect that. Further, in this instance, the grandchild had a good relationship with the deceased but contact with him was not frequent.
These awards will all have an affect on future cases. Damages for loss of society are now considerably greater than they were previously.
If you require any further information please contact Jenny Grant by emaling jenny.grant@morton-fraser.com or calling 0131 247 1332.
