Neutral Citation no. [1999] 1928

Ref:

MCCC2851

 

 

 

Judgment: approved by the Court for handing down

Delivered:

18/05/99

(subject to editorial corrections)

 

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

QUEEN'S BENCH DIVISION

 

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BETWEEN:

 

MARGARET GARDINER, THE SISTER AND PERSONAL REPRESENTATIVE

OF THE ESTATE OF JACK McVEIGH, DECEASED

 

Plaintiff;

and

 

SCRUTTONS PLC

P&O FERRIES LIMITED AND

BELFAST STEAMSHIP COMPANY LIMITED

 

Defendants.

 

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McCOLLUM LJ

The plaintiff, Mrs Gardiner, is the sister and administratrix of the estate of Jack McVeigh, deceased, who died on the morning of 4 July 1994. He was found in his home at about 11.15 am, by which time he was probably already dead and was so certified some time later, and had last spoken to his sister by telephone on the previous day.

There is no dispute that his death was due to pleural mesothelioma, a malignant tumour arising on the lining of the chest cavity. This condition is well recognised as occurring in individuals who have been exposed to asbestos. During his employment as a docker, the deceased was so exposed. The defendants were his employers and successors to other employers. The action is brought against them for damages and they have admitted liability.

It falls to me to determine the quantum of damages and it does not escape my notice that it may well be that this case is regarded as being that of its kind most likely to set the benchmark for the most moderate award.

The deceased was 80 when he died, having enjoyed a long, active and healthy life and the complaints of pain and suffering recorded in his medical notes are remarkable for their restraint. There is no clear evidence that he was told the nature of his final illness and up to the end he was self-reliant, requiring no formal assistance in the home, although it is clear that his sisters cared for him with great consideration and visited him on a daily basis.

He was first married in the 1930s and his wife died in 1968. He was accustomed after her death, to walk out to visit her grave in the cemetery at Carnmoney, proceeding then to visit his sister, who lived in Whiteabbey. He met a lady while visiting the cemetery and they became friendly and married in 1983. She developed cancer, and while I do not have the precise date of her death, Dr McLoughlin notes that in the period of 29 June 1993 to 6 July 1993, while the deceased was a patient in the Mater, his wife was in the Royal Victoria Hospital at that time and was "dying with some type of malignancy" and that at that time the deceased wished to spend as much time with her as possible. After discharge from the Mater Hospital he was apparently admitted to the Royal Victoria Hospital for a period.

Apart from unrelated conditions, none of which was particularly serious, the deceased seems to have enjoyed good health up until 1992. In that year the plaintiff noticed while looking at some holiday snaps that it was apparent when the deceased was in casual clothing that he looked very thin. He was admitted to the Mater Hospital on 29 June 1993 complaining of gradually increasing shortness of breath over a period of three months. He was found to have pleural effusion which was aspirated and analysis confirmed the presence of malignant cells, but the primary lesion was not identified although mesothelioma was recognised as a possible cause of his condition.

He seems to have required little in the way of medical treatment, but he was admitted to hospital again on 27 June 1994, having been seen again by Dr McLoughlin.

It is, however, apparent from Mrs Gardiner's evidence that he was in very poor health during 1993. She described meeting him on a street and barely being able to recognise him, and that he had great difficulty in walking, as she put it "he really shuffled along". She said he was very very weak between the summer of 1993 and the summer of 1994 and she pleaded with him to go to see the doctor, but he just kept putting it off.

It was clear that he was a very independent man who kept his problems to himself and also a very considerate man who did not wish other members of his family to be put to great trouble in looking after him.

After his death, which in its way was sudden as he was obviously on his feet and fully dressed and making a cup of tea when it occurred, it transpired that he had made full plans for his funeral service and other arrangements.

Having considered the evidence, I am quite satisfied that from June 1993 he was aware that he had a terminal illness. His reluctance to seek medical advice during the latter half of 1993 and the first half of 1994 and his desire to leave hospital in late June 1994 after aspiration of the pleural effusion had given some relief, indicates to me his recognition of the fact that his underlying condition was incurable and his arrangements for the church service shows that he recognised that it was fatal.

It is apparent that there are factors present in other cases which tend to increase the award, but which are absent in the present case. Some plaintiffs have developed mesothelioma in their early 50s and have to face the prospect of an early death, realising that they will be survived by a widow and children whose prospects may be uncertain. Moreover, it is obvious that death is a more natural subject for contemplation by a man in his late 70s than by one in his early 50s. However, at whatever age it comes, the recognition that one is suffering from an illness which must lead to death must be a profound blow, and it could be argued that the expectation of continuing good health is equally precious at any age. It does not appear that once symptoms of mesothelioma appear that the victim has many years of suffering to endure, so that in the other cases that have occurred damages do not require to provide for compensation for prolonged pain and suffering.

Mr Horner QC produced a number of tables produced by Mr Andrew Hogarth containing statistics relating to mesothelioma. While strictly speaking this table is not evidence, I am prepared to rely upon it in a general way as a basis upon which some information may be available to the court and in it the maximum duration of illness referred to is one of four years, but the true average would appear to be no more than two and a half years. I take it that this refers to the belief at the time of trial because obviously some plaintiffs might survive for longer than expected. However, that is irrelevant if the amount of damages awarded were based on a particular expectation of life.

It is extremely difficult to try to assess damages in a particular case by drawing too direct a comparison with other similar cases. While we all realise that ultimate death is inevitable its direct imminence through cancer still appals. Moreover, while life is much more restricted in old age, the activities that are left may be more valued and one's comforts and freedom from pain more appreciated. Nevertheless, I accept that this case must be approached as being one in which damages are going to be on a considerably smaller scale than has been appropriate in the case of younger men with the experience or prospect of suffering considerably more than the evidence would suggest that the deceased suffered in this case.

The table of damages produced by Mr Hogarth does show that the figure awarded by the Court of Appeal in the case of Simpson v Harland and Wolff was larger than those which have been awarded in the English and Scottish courts. Current English guidelines would suggest a figure in the region of 40,000 as being the appropriate guideline figure. In my view my best course in order to ascertain the appropriate amount of damages in this case is to return to the case of Simpson v Harland and Wolff and take the figure of 50,000 then awarded for general damages, the current equivalent value of which would be approximately 75,000 and try to interpret that award in such a way as to enable me to compare it to the figure which occurs to me as being the appropriate award of damages.

In H West & Son Limited and another v Shephard [1964] AC 326 Lord Pearce summarised the relevant principle at page 365 as follows:

 

"The practice of the courts hitherto has been to treat bodily injury as a deprivation which in itself entitles a plaintiff to substantial damages according to its gravity. In Phillips v London and South Western Railway Co. (1879) 4 QBD 406 Cockburn C.J., in enumerating the heads of damage which the jury must take into account and in respect of which a plaintiff is entitled to compensation, said:

 

`These are the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent; the expenses incidental to attempts to effect a cure, or to lessen the amount of injury, the pecuniary loss.'

 

 

 

 

 

In Rose v. Ford (1937) AC 826 Lord Roche said (at 859):

 

`I regard impaired health and vitality not merely as a cause of pain and suffering but as a loss of a good thing in itself.'

 

If a plaintiff has lost a leg, the court approaches the matter on the basis that he has suffered a serious physical deprivation no matter what his condition or temperament or state of mind may be. That deprivation may also create future economic loss which is added to the assessment. Past and prospective pain and discomfort increase the assessment. If there is loss of amenity apart from the obvious and normal loss inherent in the deprivation of the limb - if, for instance, the plaintiff's main interest in life was some sport or hobby from which he will in future be debarred, that too increases the assessment. If there is a particular consequential injury to the nervous system, that also increases the assessment. So, too, with other personal and subjective matters that fall to be decided in the light of common sense in particular cases. These considerations are not dealt with as separate items but are taken into account by the court in fixing one inclusive sum for general damages."

Later in the same speech (at page 368) Lord Pearce said:

 

"The loss of happiness of the individual plaintiffs is not, in my opinion, a practicable or correct guide to reasonable compensation in cases of personal injury to a living plaintiff. A man of fortitude is not made less happy because he loses a limb. It may alter the scope of his activities and force him to seek his happiness in other directions. The cripple by the fireside reading or talking with friends may achieve happiness as great as that which, but for the accident, he would have achieved playing golf in the fresh air of the links. To some ancient philosophers the former kind of happiness might even have seemed of a higher nature than the latter, provided that the book or the talk were such as they would approve. Some less robust persons, on the other hand, are prepared to attribute a great loss of happiness to a quite trivial event. It would be lamentable if the trial of a personal injury claim put a premium on protestations of misery and if a long face was the only safe passport to a large award. Under the present practice there is no call for a parade of personal unhappiness. A plaintiff who cheerfully admits that he is happy as ever he was, may yet receive a large award as reasonable compensation for the grave injury and loss of amenity over which he has managed to triumph."

In my view, therefore, I should adopt from Simpson v Harland and Wolff (1988) Northern Ireland 432 the unanimous opinion of the members of the Court of Appeal that a fair figure for general damages in that case was 50,000 and consider what part of that figure might be regarded as compensation for the "bodily injury" involved after making allowance for compensation for the element which represented the other subjective factors in that case.

The plaintiff's problem started in 1981 and became comparatively serious by January 1984 and he was quite ill by November 1984. He was told in or about August or September 1986 in rather traumatic circumstances that he had cancer so there were five years of worry and concern up until then and while his illness had not developed to the point that he was housebound he was by the date of trial suffering diminishing health with pain and increased shortness of breath and could barely climb the flight of stairs in his home. He had been working, although with some difficulty, up until voluntary redundancy in 1987. Trial was on 9 December 1987 and at that time the plaintiff's prospects were bleak. The doctors had put a potential limit on the number of years left to him of about three years or so.

The assessment is, therefore, based on an expectancy of about three years of really serious pain and suffering added to the period of about six years from the date on which the plaintiff was conscious of some chest problems until the date of trial during which, apart from hospital admissions, he had been presenting himself as still fit to work.

In that case I described the pain which the plaintiff had suffered up to the date of trial as "tolerable enough" and concentrated on "the prospect which the disease had brought to him" and "the prospects that await him".

I can say that in my estimate the proportion of the damages which I attributed to what might be described as the basic element of the condition was about _ although I did not specifically approach the matter in that way, as Lord Pearce indicated in the earlier passage already quoted. The remaining 2/3 was to compensate the plaintiff for the element of pain and suffering, loss of amenity and personal consequences which were the subjective aspects of the case which affected him in an individual way, and I have no reason to suppose that the Court of Appeal would have taken a different view.

The result is that the basic compensation for what Cockburn CJ described as "the bodily injury sustained" and "the effect on the health of the sufferer" would have been about 16,000 to 17,000, which at present day values would amount to a figure of about 25,000. This coincides with my estimate in the round of the appropriate figure to compensate for the development of mesothelioma if one could imagine that occurring without any perceived physical pain and suffering. I am including in the figure of 25,000 the mental suffering consequent on the discovery, either by deduction or by being informed, of the existence of a terminal illness, which will invariably affect the victim at some time, except in the extremely rare case of a person who never becomes aware of the nature or extent of his illness.

In the present case something must be added to the "core" figure for the actual pain and suffering endured by the deceased together with loss of amenity in the enjoyment of the last year of his life, and this I assess at a figure of 7,500. He must have suffered mentally a great deal because of his inability to look after his wife properly in her last days and I am sure that he underwent feelings of loneliness and despair in the last year of his life, however well he concealed them.

I, therefore, find that general damages are 32,500 with interest thereon at 3% from 4 July 1994 together with funeral expenses of 1,157 with interest thereon at 6% from same date.

I have not entered into any consideration of the approach to the question of comparison of the amounts awarded by Northern Ireland and English courts, since I regard the decision in Simpson v Harland and Wolff as providing me with an authoritative base for consideration.

I accept the submission on behalf of the plaintiff that the computation of damages is not affected by the fact that the plaintiff is administratrix of the estate of the injured party. Death puts an end to pain and suffering but does not affect the computation of damages up to that point.


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

------------

 

BETWEEN:

 

MARGARET GARDINER, THE SISTER AND PERSONAL REPRESENTATIVE

OF THE ESTATE OF JACK McVEIGH, DECEASED

 

 

Plaintiff;

and

 

SCRUTTONS PLC

P&O FERRIES LIMITED AND

BELFAST STEAMSHIP COMPANY LIMITED

 

Defendants.

 

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JUDGMENT

 

OF

 

McCOLLUM LJ

 

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