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Significant damages awarded to family members in fatal disease cases

Over the past few months, the Court of Session has issued two significant judgements after considering the appropriate level of damages to be awarded to various family members following the death of a relative from mesothelioma. David Stevenson reviews the decisions in Margaret Anne Gallagher & Others v SC Cheadle Hulme Ltd & Others, Court of Session, 8 August 2014, and Joseph McCarn and another v the Secretary of State for Business Innovations and Skills, Court of Session, 24 June 2014, the first disease related decisions in which substantial awards have been made for loss of society claims.


Both cases concerned claims for damages under section 4(3)(b) of the Damages (Scotland) Act 2011, referred to as “loss of society” claims. This section entitles relatives who are members of the deceased’s immediate family to claim damages for:-

  • Distress and anxiety endured by the relative in contemplation of the suffering before death

  • Grief and sorrow caused by the death

  • Loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased’s society and guidance

In both cases liability was admitted, but the parties disagreed on the level of damages to be awarded. In each case the decision was issued following a proof (trial). In both cases, reference was made to the decision of the Inner House of the Court of Session in Hamilton v Ferguson Transport (Spean bridge) (2012) in which previous judicial awards were criticised as “markedly” undervaluing relatives’ claims in fatal cases. The Inner House determined in Hamilton that, in future jury trials, the presiding Judge should give the jury guidance on the appropriate range for awards of damages.

Margaret Anne Gallagher & Others v SC Cheadle Hulme Ltd & Others

Mr Gallagher died in December 2009 aged 70 as a result of mesothelioma caused by exposure to asbestos during the course of his employment with the Defenders. Claims for damages were made on behalf of his widow, four surviving children and seven grandchildren.

The Judge, Lord Uist, recognised that the deceased had been a “remarkable man” whose death had a profound effect on his family. His widow had been devastated by the loss of her husband and all of his children had enjoyed a close, distinct bond with their father. Of the grandchildren, two were particularly affected, having enjoyed an especially close relationship with their grandfather.

In reaching his decision, the Judge took into account the fact that the evidence established that the relationships which the Claimants had enjoyed with the deceased were particularly close. He also had regard to the awards made in McGee v RJK Building Services Ltd (2013). Not only had the deceased in that case been of similar age to Mr Gallagher when he died, but there were clear similarities in the closeness of the relationships between the deceased and their families in both cases.

The following awards were made:

  • Widow - £80,000

  • Adult Children - £35,000 each

  • Grandson and granddaughter with close relationship to the deceased - £25,000

  • Teenage grandsons and granddaughter in her twenties - £12,000

  • Young grandsons (aged 2 years and other less than 3 months old at time of death) - £2,500

Read the full judgement.

Joseph McCarn and anor v the Secretary of State for Business Innovations and Skills

Claims for damages were made by five adult children following the death of their father at the age of 69 from mesothelioma. The evidence indicated that the family was a very close and loving one of which the deceased had been the patriarch. 

The Claimants argued that an award of £35,000 should be made to each Claimant. The Defender maintained that the appropriate level of each award would be £25,000.  Again, a number of recent cases in which awards had been made were reviewed. The Defenders placed significant reliance on the awards made in the case of Kelly v Upper Clyde Shipbuilders, (2012) in which a jury awarded damages to relatives of an 82 year old man who died from mesothelioma, including a number of adult children who each received £25,000.

The Judge, Lord Bannatyne, took as the starting point the awards in Kelly. The Claimants had suggested that the present case and the case of Kelly were broadly similar in most respects, with one material difference – the question of life expectancy. The deceased in the present case would have lived for 18 years had he not contracted mesothelioma.  In contrast, the deceased in Kelly would have lived for 4 years.

The Judge was persuaded that the difference in life expectancies was a “significant factor” when assessing damages for loss of society. He accepted the fundamental proposition put forward by the Claimants that, where the relationship between the Claimant and the deceased would have subsisted over a materially longer period, the award of damages should be higher, other things being equal. He awarded £35,000 to each Claimant in recognition of the fact that the Claimants in the present case had been deprived of the deceased’s society and guidance for a much longer period than the Claimants in Kelly.

Read the decision.


Compared to previous awards, those made in these two cases in represent a distinct increase in the amounts awarded in fatal cases. It is interesting to note that the decision in Gallagher had not been issued when McCarn was being decided, so was not taken into consideration in the assessment of damages, yet the Judges in both cases assessed damages for the adult children at the same level.

The Judge in Gallagher made it clear that, if a Claimant wishes to try and establish that he or she had a special relationship with the deceased which went beyond the “normal” relationship expected in a family, and which could increase an award for loss of society, notice of this argument should be given at an early stage to allow the Defender to consider such special features and take account of them when making an offer. The nature of the Claimants’ relationships with the deceased had only emerged during the course of their evidence.

In McCarn, the Judge referred to “counterbalancing” factors when determining the amount of an award under section 4(3)(b) of the 2011 Act, suggesting that, when assessing the level of such awards, a balancing exercise has to be carried out – weighing up the three factors outlined in that section and, after that, assessing these against factors taken into account in other cases.

Before the Inner House’s decision in Hamilton, the Court would have been very slow to rely on a single jury award when assessing the value of a claim; the decision in McCarn makes it clear that, if considered appropriate, a single jury award made post-Hamilton may be relied on in isolation, rather than waiting for a pattern of awards to emerge before these can be relied on. As juries do not require to provide an explanation for the basis of their decisions, however, it is difficult to know with any certainty what factor or factors they have taken into account when reaching a decision on the appropriate level of award. Nevertheless, if the approach of the Judge in McCarn is followed, both those pursuing and those defending personal injury claims will have to take even single jury awards made after June 2012 into account when assessing the value of claims.

The Judge in Gallagher concluded 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”, suggesting that, until the Inner House is asked to consider the level of awards post-Hamilton, awards made by judges in fatal cases will continue to reflect the increases seen in these two decisions.


For further information please contact David Stevenson, Partner at david.stevenson@dwf.co.uk or +44 (0) 141 228 8124

By Catherine Hart

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