Relatives of mesothelioma victim awarded £340,000 damages from deceased’s former employers

A judge in the Court of Session made an award of £90,000 to the widow of George Manson for “loss of financial support” and £75,000 for “loss of society”, with £30,000 to be paid to each of his two sons and a further £90,000 payable to them as executors.

Lord Clark heard that the action was brought by the deceased’s 59 and 55-year-old sons (first and second pursuers) and his 79-year-old wife (third pursuer), who were seeking compensation under the Damages (Scotland) Act 2011 for his death, the cause of which was recorded as epithelioid mesothelioma of the pleura.

Mr Manson, who had worked full-time until the age of 72, had been for some years, in the past, employed by the defenders Henry Robb Ltd, who admitted liability for his death as arising from his exposure to asbestos dust and particles.

The case came before the court for a proof on quantum and the main areas of dispute between the parties related to the amount of compensation which fell to be paid by the defenders to the pursuers in terms of section 4(3)(b) of the 2011 Act, in circumstances where the deceased was at an advanced age at the date of his death, but where the relatives in question had lived with him en famille until the date of his death and had formed with him a particularly close relationship, and what sum fell to be payable in compensating 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 decision in the case of Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486 had made clear that the court required to seek to achieve “consistency” as between jury awards and awards made judicially in death cases like the present.

However, 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.

The judge made the awards having heard evidence that but for his fatal condition Mr Manson deceased would have lived for a further 5.8 years, and that the family had “lost the continuing loving and supportive relationship” of a husband and father who was described as their “solid rock”.

In a written opinion, Lord Clark said: “I have had regard to the various awards referred to by counsel, on both sides of the bar. Unsurprisingly none of those on their facts could be said to be virtually identical to the present. While, of course, I accept the submissions of senior counsel for the pursuers to the effect that, following in particular the decision of the court in Hamilton the task of the court, in making a judicial in such a case, has to be carried out with regard to the level of jury awards in similar cases, to ensure a level of consistency between judicial awards and jury awards.

“The cases to which I have been referred, while of assistance in showing a range of judicial and jury awards in relation to claims such as the present all, understandably, differ, to a greater or lesser extent, particularly with regard to the ages of the parties, the duration of the relationship and the life expectancy of the deceased at the date of his death, absent the fatal illness in question. (As has been seen, the court was referred to only two jury awards, which do not demonstrate a pattern of awards on such case).

“Doing the best I can, having due regard to that range of awards and the particular facts of the present case I have determined that the following awards should be made under section 4(3)(b); (a) To the third named pursuer the sum of £75,000 two thirds thereof being referable to the past and one third referable to the future; (b) To the first named pursuer and the second named pursuer I shall award in each case the sum of £30,000, one half thereof referable to the past and one half referable to the future.”

The judge also made an award of £9,000 in respect of “loss of services” under section 9 of the 2011 Act to the third named pursuer, who had become her husband’s full-time carer after he diagnosed with his fatal condition in July 2015.

It was agreed that the defenders would pay £90,000 to the sons as executors, inclusive of interest and gross of a payment of £13,455 payable under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 in satisfaction of the first conclusion of the summons, which represented the sum due in respect of solatium and past services in terms of section 8 of the Administration of Justice Act 1982, on behalf of the deceased.

Further, the defenders had agreed to pay the widow £3,700 for “reasonable expenses incurred” for her late husband’s funeral.

Lord Clark added: “I shall pronounce decree also for payment by the defenders to the third named pursuer, by way of compensation for loss of financial support, in terms of section 4(3)(a) of the Damages (Scotland) Act 2011 of the sum of £89.480.31 inclusive of interest on any past element to 11 July 2017.”