English judge allows Scots law of damages in mesothelioma claim

The ICI factory manufactured explosives and it is accepted that while David Haggerty worked for the company, he was required to handle asbestos without adequate warning or protection.

Mr Haggerty was diagnosed with mesothelioma in the summer of 2018 and died in January 2019. He met his future wife, Charmaine Haggerty, in 2015. Mrs Haggerty had three children from previous relationships and Mr Haggerty had two. Mr Haggerty became a step-father to Mrs Haggerty’s children.

As the illness progressed, Mrs Haggerty looked after her husband at home as he became increasingly unwell and later died. She gave up her job as a teacher to care for her husband.

Although the defendant originally denied liability, it later accepted that Mr Haggerty had been exposed to asbestos at the factory. Dushal Mehta, of Fieldfisher, made a claim on Mrs Haggerty’s behalf and on behalf of her three children. Two days before the trial additional family members joined Mrs Haggerty’s claim for damages.

Mr Mehta and counsel John-Paul Swoboda argued the claim should be based on Scots law even though the claimants reside in England. The defendant originally objected to the application of Scots law to this claim brought in England. However, days before the trial on this issue the defendant conceded that Scots law would apply to this case. The case progressed to a trial on quantum which took place last week.

In such cases, Scots law allows an award for loss of society and also allows extended family members to claim for their loss, unlike in English law. There is no equivalent in the Fatal Accidents Act. Under Scots law, a loss of society award can be claimed on behalf of a wide range of family members to include as in this case, adult daughters, sisters, grandchildren and step-children. Mrs Haggerty was able to recover a loss of society award of £115,000 and her children recovered substantial sums also. These claims could not have been advanced had English law applied to the assessment of damages.

A complicating factor in the case was that for claims dating back to the 1970s, the common law rule was that while Scots law determined the heads of loss, English law determined the assessment of those heads of loss. However, the claimant’s approach to the assessment was agreed by the defendant which meant Scottish case law to be taken into account in determining ‘loss of society awards’.

Despite the fact that Mr and Mrs Haggerty had not been together for long, Mr Justice Ritchie said he accepted they would likely have been together for the rest of their lives had Mr Haggerty not contracted mesothelioma. He had lost over 20 years because of the illness. Despite the defendant arguing for a much lower sum at the trial, the judge awarded Mrs Haggerty and her children over £600,000 for their losses. Further awards had been agreed one day before trial for the other claimants (the extended family members).

Mr Mehta said this was the first time such a judgment under Scots law has been allowed in the English courts in a mesothelioma case.