Lawford Kidd's Blog

Two recent cases have marked a distinct increase in the amount of compensatory damages awarded in fatal cases.  

Both cases concerned section 4(3)(b) of the Damages (Scotland) Act 2011, which allows family members to claim damages for distress and anxiety, grief and sorrow, and loss of society and guidance following the death of their loved one.  

In the first case, Margaret Anne Gallagher & Others v SC Cheadle Hulme Ltd & Others, the widower received £80,000 and adult children £35,000. Importantly, a distinction was made between grandchildren - two grandchildren were awarded £35,000 each while the others were awarded £12,000 each, calculated on the basis of the closeness of relationship of the grandchildren with the deceased.  

Scotland has a long, proud industrial history: our shipyards, coal mines and steel works have shaped our nation's economy and society over the years.

Unfortunately for the people of Scotland, much of that industry has gone and left behind a legacy of asbestos-related disease. Even more unfortunate is that the most common asbestos-related disease, mesothelioma, is particularly aggressive, difficult to detect and doesn't receive anywhere near as much research funding or attention as some other types of cancer.

The dangers of asbestos were previously unknown, since effects or symptoms of asbestos-related disease often don't appear until decades after exposure to the deadly dust. As a result, Scotland is now experiencing an asbestos epidemic.

In the recent case of Joseph McCarn and Others v The Secretary of State for Business, Innovation and Skills [2014] CSOH 121, the Court of Session has provided guidance on fatal awards in Scotland.

The children of the late Mr McCarn, who died in 2009, aged 69, from mesothelioma due to asbestos exposure during the course of his employment in the shipbuilding industry raised a claim under section 4(3)(b) of the Damages (Scotland) Act 2011 - which allows for compensation to be awarded to relatives for loss of financial support, distress and anxiety, grief and sorrow, and loss of ‘society and guidance’.

In making the decision, Lord Bannatyne referred to the case of Hamilton v Ferguson Transport, but disagreed with the proposition made in that case that there must be a pattern in jury awards before a judge can attach weight them. Instead, Lord Bannatyne considered the unreported case of Kelly v UCS from 29 July 2012, a decision that was reached using a completely different approach to other recent cases.  

Claimants making asbestos claims may have no legal right to compensation where at the time of exposure levels of protection offered by employers would have been considered adequate, albeit considered negligent by today's standards. In McGregor v Genco, the Court highlighted this point, underlining the importance that all claims must be looked at individually, on a case-by-case basis, and with regard to the overwhelming body of case law in the area.

The Court could not '..accept that during 1976…the defendant should have appreciated that the claimant was at risk of an asbestos related injury and that their failure to appreciate and take what would now be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent'.

This could be a particularly important point for defendants in legacy claims, especially in Scotland where fatal claims are more expensive than they are in England.  It means that, even where a Claimant’s mesothelioma or asbestosis was indeed caused by exposure to asbestos while in employment with a Defendant - which would satisfy the causation test - the Defendant cannot be held to have acted negligently, where they acted in accordance with the standards at the time.  

Small fibres which are made to toughen bike frames and hockey sticks have been identified as a possible cause of asbestos like cancer.  The carbon nanotubes which are used for strengthening tennis rackets and as a possible item for bullet proofing clothing have been found to cause harm in mice if the longer nanotubes become stuck in lung tissue.