In the recent case of Joseph McCarn and Others v The Secretary of State for Business, Innovation and Skills  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.
In one of said cases for example, the deceased - who also died of mesothelioma - would have lived for a further 4 years, and it was on this point which the court distinguished it from the McCarn case, as he was expected to live for an additional eighteen years.
The spouse was awarded £40,000, while each child was awarded £25,000. The pursuers argued that they should receive far greater than the awards in Kelly, because of this difference in life expectancy. The defenders, however, argued this made no difference in terms of section 4(3)(b) of the 2011 Act.
The defenders’ argument was rejected with regards to grief and suffering, but the court took the view that the effect of life expectancy was minor and with no great significance in assessing an award. That said, Lord Bannatyne did accept that a higher sum would be appropriate to compensate for the length of time for which the claimant had been denied the society and guidance of the deceased, therefore there should be a materially higher award in the present case compared to Kelly.
A similar approach was then taken by the court as in McGee v RJK Building Services Ltd 2013 SLT 48, where the deceased spouse was awarded £80,000 and two children £35,000 each: the McCarn children were ultimately awarded £35,000.
Although, as stated, two children in McGee were awarded £35,000, one son who did not have as close a relationship with their late father was awarded £27,500. Lord Bannatyne did not differentiate between children in McCarn, interestingly, but the whole family were described as being “very close and loving”, with all evidence pointing to the love and affection between all children and the deceased.
In practical terms and moving forward, it remains to be seen which of the above approaches, if any, that the Scottish courts will adopt in determining the level of compensation for fatalities resulting from mesothelioma.
Mesothelioma Fatality Claims Lawyers Scotland
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