Significant Increase in Damages Awarded by Court of Session in Fatal Asbestos Claims

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.  

Lord Uist noted in the case that the death of Mr Gallagher, who died aged 70 from mesothelioma caused by asbestos exposure during employment, had a profound and devastating effect on the family who had enjoyed a close and distinct bond with him, which in turn affected the amount of compensation awarded.

In the second case, Joseph McCarn v the Secretary of State for Business Innovation and Skills (see our blog on the judgment here), brought by the children of the deceased, the Court decided to award each of them £35,000. They had lost their 69-year-old father in 2009, after he had been diagnosed with mesothelioma just months later. Like Mr Gallagher, Mr McCarn’s cancer had been caused by asbestos exposure, but from working in the shipbuilding industry as an apprentice for only five years.  

Lord Bannatyne said in this case that life expectancy was a “significant factor” in assessing compensation, noting that Mr McCarn’s case should be distinguished from the Kelly v Upper Clyde Shipbuilders case of 2012, due to the fact he had a far higher life expectancy (he was expected to live a further 18 years, by contrast to 4 years in Kelly) and therefore the family left behind had been deprived of society and guidance for a longer period of time.  

The awards in both cases mark a significant increase in fatal awards when they are compared with previous case law.  Furthermore, in Gallagher, the Judge said that “if the levels of the awards now being made are thought to be excessive, then it is for higher judicial authority to say so”, indicating that we can expect this trend of higher awards to continue to reflect these two decisions, unless the Inner House is asked to review it.

The Gallagher case also made clear that where claimants wish to seek a higher compensatory award on the grounds of having a special relationship with the deceased - which would merit an increase for loss of society - notice will have to be given to the defendant at an early stage, so they can take it into account when making an offer. 

Fatal Asbestosis & Mesothelioma Compensation Claims in Scotland

If you have, or a loved one has, died with as a result of asbestos-related disease such as Asbestosis or Mesothelioma, you may be entitled to compensation. To find out more, please contact our specialist personal injury claims solicitors based across Scotland. To get in touch, please complete our online form.