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Final Judgement

The case - ELIZABETH WOLFF & OTHERS V JOHN MOULDS (KILMARNOCK) LTD & WEIR CONSTRUCTION LTD [2011] CSOH 159

The issue

Lord Doherty's opinion in Elizabeth Wolff & Others v John Moulds (Kilmarnock) Ltd and Weir Construction Ltd brings to an end the uncertainty surrounding the value of section 1(4) awards in mesothelioma claims following recent jury awards in fatal cases.

The facts

Up until May this year, s1(4) claims for the families of victims of mesothelioma had been settling on the traditional figures of up to around £33,000 for widows, £12,000 for children, £15,000 for parents and £6,000 for grandchildren and siblings. However, recently juries in fatal accident cases (including the widely publicised Nimrod cases involving the death of young servicemen) have awarded up to £100,000 for parents, £80,000 for a widower and £120,000 for a daughter. There has been much publicity suggesting that judicial awards in fatal cases are out of touch with the public view of what these claims are worth.

During the week that the Wolff trial was heard, Lord Woolman's decision in the fatal case of Bellingham v Todd [2011] CSOH 74 was issued. It concerned the death of a 40-year-old man in a road traffic accident. The following s.1(4) awards were made:

Widow £50,000
Adult child £15,000
Dependent children £25,000
Parent £15,000
Brother £10,000

In Wolff the pursuers were the widow, three daughters and one grandchild. The pursuers argued that the pattern of recent jury awards provided a clear indication that the levels of judicial awards were too low and ought to be increased. It was argued whilst the Lord Ordinary in Bellingham had taken some account of the recent jury awards, he had not gone far enough.

The defender contended that the Nimrod cases should be distinguished on the basis that there was particular sympathy for the families of the young servicemen. In some of the other cases where higher awards had been made, the deceased men were much younger, in their 30s and early 40s (the late Mr Wolff died aged 66).

The decision

Lord Doherty took guidance from the previous judicial and jury awards and the recent Bellingham decision. However, he stated that:

"In my opinion the three Nimrod cases… need to be treated with very great caution for two reasons. First, the awards there appear to me to be, at best, at the very top of the range of awards which might have been upheld had the verdicts been challenged. Second, I think it is not unreasonable to infer that the awards reflect each jury's understandable sympathy for the families of young serviceman killed on active service in Afghanistan.

"My duty is to carry out a proper judicial assessment with a view to determining compensation which is just to both parties… Jury awards can be very much higher than any judge would award carrying out a proper judicial assessment (taking account of judicial and jury awards) without being so extravagant or palpably wrong that they will be held to be excessive…. In my view it would be wrong to give such awards significant weight in the judicial assessment. The awards in the Nimrod cases fall into that category…."

Lord Doherty awarded the widow £50,000. Two adult daughters (43 and 45) were awarded £15,000 and the third adult daughter (32) £18,000 on account of her remaining in the family home. The granddaughter was awarded £6,500.

Also of some interest are the awards made in respect of solatium and services. The deceased died aged 66. The evidence was that the pain suffered by the deceased was exceptional and worse than the vast majority of mesothelioma sufferers. He lived for around seven months from diagnosis. The award was £65,000.

In respect of s.8 services, Lord Doherty accepted the defender's argument that a broad assessment was appropriate. Services were provided over a period of around 39 weeks, principally by Mrs Wolff. An award of £13,500 was made.

Mr Wolff could have expected to live another 17 years but for the diagnosis of mesothelioma. He was a joiner and had done a lot of work on the couple's current home including fitting a new kitchen, renewing the central heating, redecorating every room, building a greenhouse and laying decking. He shared in the household and garden chores with his wife. Past s.9 services were valued at £1,500. Future s.9 was awarded at £2,000 per year, but on a reduced multiplier of 7.5 to take account of his diminishing ability to provide services as he aged.

Toni Ashby

In respect of the s1(4) awards the decision is as good as we could have expected and above all will provide much needed clarity in valuing and reserving family claims in mesothelioma, and other fatal claims.

The new Damages (Scotland) Act 2011 is now in force. Section 4(3) of that Act replaces section 1(4) of the 1976 Act. However, there is no substantive change to the wording of the section.

THE JUDGEMENT IN THIS CASE PROVIDES CLARIFICATION OF THE VALUE OF BEREAVEMENT AWARDS IN SCOTLAND UNDER S1(4) OF THE DAMAGES (SCOTLAND) ACT 1976.

OTHER CASES

The case - DIVYA V TOYO [2011] EWHC 1993

The starting point for the case was a traffic accident involving a car driven by a Mr Paranirupasingham. The car's rear offside tyre blew out and deflated, causing the driver to lose control. In the resulting crash, five of his six passengers were injured and the sixth was killed. The five passengers and Mr Paranirupasingham brought a claim in negligence against the tyre's Japanese makers ('Toyo'), on the grounds that the blow-out was due to a manufacturing defect. Toyo, however, claimed negligence by the driver.

It was held that the probable cause of failure was incomplete bonding of the steel cords within the tyre, which most probably failed due to inadequate penetration by the rubber of those cords and/or a failure to cure the tyre for the right time and at the right temperature and/or pressure. The first defendant was held liable.

Mr Justice Mackay stated: "Though I cannot find at what stage the failure to exercise reasonable care occurred, I do not believe I am required by the authorities to do so. What can be said as a matter of probability is that at some stage of the manufacturing process, through which the evidence has taken me in exact detail, the mechanised procedures have failed to cover and penetrate these cords fully with rubber and/or to cure the green tyre properly, and the human side of the process has failed to detect such failure or failures. The result is that the tyre fell below the high standard that Toyo set itself and that the end users of its products were foreseeably entitled to expect."

Mr Justice Mackay also said: "I must be careful not to apply a standard of care which amounts to the imposition of strict liability on the manufacturer in this case. But the standard of care required and indeed claimed by this manufacturer for this product in its evidence is at the highest level. It is also the case that a failure to attain that standard will lead to the putting into circulation of a tyre which can disintegrate in service with the most catastrophic results, as this case shows and others have shown in the past. The end user of such a tyre expects and relies on the integrity of a tyre and the absence of such dangerous latent defects."

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