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."
