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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McAuley Or McManus & Ors v Babcock Energy Ltd [1999] ScotCS 130 (28 May 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/130.html Cite as: [1999] ScotCS 130

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The late John Quinn McManus died on 28 December 1996 as a result of mesothelioma caused by exposure to asbestos while employed as a pipe fitter by certain associated companies of the defenders. In this action his widow, the first pursuer, sues as executrix dative in respect of loss, injury and damage suffered by the deceased prior to his death and also as an individual in respect of her own losses arising from his death. The second and third pursuers, Mark and Paul McManus - both adult children of the deceased and the first pursuer - also sue in respect of losses arising from the death of the deceased. Liability to make reparation is admitted by the defenders and the proof before me was accordingly restricted to quantum. Evidence was given before me by the three pursuers, by Mr Hugh Young, a Services and Care Consultant with Health-Sure and by Dr Banham, Consultant Physician. Prior to his death the evidence of the deceased was taken on commission on 25 October 1996. I propose to deal with each of the elements of the claims which were made in the order in which they were presented in submission at the end of the proof.

The evidence disclosed that the deceased, who was born on 13 February 1941 and who thus died shortly before he became 56, was, prior to the onset of any symptoms, a fit and active man. He had been in full-time employment with few, if any, absences from work for many years. He did not smoke and drank only occasionally. He kept fit by early morning exercise. He had a close and loving family relationship with his wife and with his two sons. Mark, born on 17 May 1968, continued to live at home in family. The deceased's son Paul lived and worked in the London area. He had a long term relationship with his girlfriend who got on well with the deceased. The deceased was a keen walker (walking most weekends, in particular with his wife). He loved gardening, frequently played golf (in particular with his sons) and went swimming. Dr Banham gave evidence that in ordinary course he could have looked forward to many more years of life. He assessed his life expectancy as broadly to the age of 80.

About a year before Easter 1996 the deceased began to feel a bit run down. He sweated easily and felt himself unable to do his ordinary exercises as well as he had. He himself in evidence did not notice any particular shortness of breath at this stage, although his wife did think there was some. She accepted, however, that this was not as bad as later. Mark described slight shortness of breath between Christmas and March 1996. I did not think there was any particular significance in the differences of evidence between the deceased and the pursuers on this, although I am inclined to think that his recollection, given in 1996, was likely to be more accurate. The deceased did not go to his general practitioner in this period thinking that it was simply old age. Generally his wife thought that he was not himself, although he continued to work and she noticed things becoming gradually worse, as did her son Mark.

At Easter 1996 the deceased developed particular shortness of breath which caused him to go to his general practitioner. He was sent for x-ray to Belvedere Hospital. He was advised that there was fluid on the lung. Shortly thereafter fluid was drained off at the Royal Infirmary, Glasgow where he came under the care of Dr Banham. The deceased was informed that he had mesothelioma. He was advised that the best that could be offered was palliative treatment and told that he had six to eighteen months to live. His son Mark described him as broken by this news.

He sought a second opinion from Dr Prakash at Hairmyres Hospital. Following further draining of fluid from his lungs and testing, the deceased agreed to major surgery. Although Dr Banham gave evidence that he expected the aim of such an operation would be to try to reduce the size of the tumour, the deceased understood that the intention was to try to remove it. According to the pursuers the deceased was given great hope and he thought that at least his life might be prolonged by some three years. The operation was carried out in May 1996. The operation was not the success that had been hoped for, the tumour having spread too far. His son Mark described how the optimism of the deceased was now replaced by realism.

The deceased was offered and underwent chemotherapy treatment between June and September 1996. He required to attend hospital monthly and did so four times, being an in-patient for between two to four days each time. He entertained hopes that the pulses would kill off the tumour. During this period the deceased, who had suffered post-operative pain, began to suffer from progressive pain from his condition, particularly after the second dose of chemotherapy. He was prescribed painkilling drugs which had only a limited success. The deceased described how the chemotherapy treatment produced unpleasant side effects - mouth ulcers, sweating all the time in bed, hair falling out, pains in his legs, and pains in his side. His wife described substantial loss of weight.

After the last of the chemotherapy sessions the deceased was advised that they had not been successful. His wife and sons described him as being devastated from then on and without hope. Thereafter he went rapidly downhill. He suffered terrible pain. He continued to lose weight. His breathing was very bad. Latterly, patches which he had been given to try to kill the pain and which had been of limited success were replaced by a different drug regime prescribed by Dr Adams of the Marie Curie Hospice at Huntershill where he spent some time in the five weeks or so before his death. In October he was advised that his son Paul was to marry his long term girlfriend in the following July. The evidence was that although this gave him great pleasure he felt the loss of not being able to be there and of being deprived of the chance to enjoy his grandchildren.

On behalf of the pursuer it was argued that any assessment would require to take account of the physical pain and suffering of the deceased, of the emotional impact of his physical illness and loss of amenity and expectation of life. It was suggested that a reasonable award would be in the region of £60,000 to £65,000. I was referred in particular to the case of Mulgrew v Upper Clyde Shipbuilders Ltd, a decision of Lord Dawson on 6 March 1996, in which no written judgment was issued but which is reported in short in McEwan & Paton on Damages for Personal Injuries in Scotland at CM15-00. The case concerned a formerly healthy and active shipyard worker (then aged 65) who developed first symptoms of mesothelioma in October 1994. This was diagnosed in 1995 and he was in hospital for a short period. He had slight weight loss to the date of the Court's decision and constant dull pain, like toothache. The pain would persist and worsen necessitating stronger painkillers. There was a poor prognosis, the pursuer only being expected to live for one more year. It was expected that his death would be in depressing and degrading circumstances, he being fully aware of his condition and its cause. The pursuer was distressed at the thought of leaving his wife and grandchildren behind. Solatium of £45,000 was awarded. Mr McGuire stressed that this was a case of an older man with, on the face of it, less to look forward to. The present value of the award made, based on the inflation table in Paton & McEwan, was said to be around £50,000. To assist the Court I was also referred to a number of cases in Kemp & Kemp on Quantum of Damages where general damages had been awarded in respect of mesothelioma. In each case I was given approximate updated figures based on the same inflation table. In particular I was referred to Gabriel v Nuclear Electric plc (K & K F 2-021 (£40,000 awarded in March 1995 for pain, suffering and loss of amenity, updated value £44,000), The Executors of E Whittaker (deceased) v BBA Group plc (K & K F2-029 (£35,000 awarded in April 1995 for pain and suffering, updated value £38,500), Kent v Wakefield Metal Traders Limited (K & K F2-013 (£45,000 awarded in October 1990 for pain and suffering, updated value £60,750), Ambler v Hepworth (K & K F2-023, £37,500 general damages for pain and suffering awarded in June 1992, updated value £44,625), Smith v Cape (£22,500 general damages awarded in December 1991, updated value £27,900), Stratford v BREL (K & K F2-045, general damages of £18,000 awarded in October 1990, updated value £24,000), Ambrose v Ilford (K & K F2-022, general damages of £28,000 awarded in January 1988, for pain, suffering and loss of amenity, updated value £43,680), Bryce v Swan Hunter (K & K F2-036, £18,750 general damages awarded in February 1987, updated value £30,000) and Jefferson v Cape Insulation (K & K F2-032 general damages £18,000 awarded in December 1981, updated value £44,650). The updated value of the award in the case of Kent v Wakefield Metal Traders Limited was, in particular, emphasised.

On behalf of the defenders it was submitted that while the awfulness of the deceased's last eight or nine months could not be minimised nor could the fact that the deceased had suffered from a particularly painful and virulent form of cancer, the evidence and the reports suggested that the course of the illness for the deceased had been not untypical. It was said that detailed comparisons with any of the cases would not only be difficult (much of the detail being missing from the relatively short reports founded upon) but also to a degree invidious. For completeness I was referred to the case of Hobbs v British Rail Engineering reported in 1985 C.L.Y. 989. There £17,000 was awarded for pain, suffering and loss of amenities, updated value £30,000. Bearing in mind that the deceased was nearly 56 at his death, there was no particular significance, in this type of case, to be taken from the fact that the pursuer in Mulgrew was, by comparison, 67. Having regard to the English cases referred to the average updated figure for all of them was £40,674 and if the highest (Kent) and the lowest (Stratford) were taken away, an average of £40,212 updated value would be achieved. In all the circumstances an award of £45,000 or at most £50,000 would, it was submitted, be reasonable.

It seems to me that on this matter a reasonable award - essentially for the reasons advanced on behalf of the defenders - would be £50,000. Given the paucity of information afforded in the report of Mulgrew it does not seem to me that any meaningful distinctions can be drawn. If anything on the face of it the period of time over which the pursuer in that case suffered would appear to have been longer. Equally it seems to me that the case of Kent, on which the pursuer, not surprisingly, also founded, was to a degree out of kilter with the general body of English awards, and so far as can be told from the report the plaintiff in that case certainly suffered problems over a very much more substantial period. I note also that an award of £50,000 would be broadly consistent with the agreed figure of £45,000 for solatium (updated to the present) in the only other case dealing with mesothelioma to which I was referred, albeit in another context, Farrelly v Yarrow Shipbuilders Limited 1994 S.L.T.1349.

Parties were agreed that interest should run on the award at 8% from the date of death.

The parties were agreed that the deceased's wage loss prior to death in consequence of his condition was £11,492 exclusive of interest, and that interest should run on the award at 8% from the date of death to the date of decree (which would add a further £2,221.78).

It was also agreed that funeral expenses of £1500, inclusive of interest, had been incurred.

In terms of section 1(4) of the Damages (Scotland) Act 1976 each of the pursuers is entitled to:

So far as the first pursuer was concerned the evidence disclosed that she had been happily married to the deceased since 1967, having known him some three years before that. It was plain that she was devastated by the deceased's illness and his suffering and of course by his death. She explained that in life they had lived for one another and that losing him was like losing her right arm. The two plainly enjoyed each other's company. Together they walked a lot. They would go out for meals and they looked forward to holidays together. She described how life without his support and assistance presented a bleak future. At the date of her husband's death she was 57, having been born on 20 July 1939.

At the date of his father's death the second pursuer, Mark, was aged 28. He was single and lived in the family home in Mount Vernon in Glasgow. He was employed in the Scottish Prison Service. It was plain from the evidence that he enjoyed very good and very close relations with his father; that he shared, like the other members of the family, his father's deep religious convictions and he took great strength from his father's advice and guidance. He spent much time with his father, particularly at weekends if he was not working, when they played golf together. He felt cheated by his father's death of the ongoing love and support which he had expected. Apart from distress at his father's suffering and grief at his father's death he felt great sadness at the thought that they would no longer be able to share things together and that his father would not see his future grandchildren.

The third pursuer, Paul, was nearly 27 at the date of his father's death, having been born on 20 December 1969. Some three years prior to October 1996 he lived and worked for about three years as a buyer for a firm of engineers in Reading. He maintained close contact on the telephone with his parents and until at least 1996 came up every five weeks or so to visit them. Thereafter he returned every three weeks or so when the deceased became ill and in October managed to obtain a transfer to live and work in Glasgow so that he could be nearer to his parents. Like his brother he had a very good relationship with his father, and relied on his support and advice. He too played golf with him when he could. He was considerably distressed to see the deceased's pain and suffering before death and felt his father's death as a great loss. Shortly before that he had been able to announce to his father his intending marriage but felt a great loss that his father would not be able to share in that marriage, and the the growing up of their children. He and his wife now had a daughter born in June 1998. The evidence suggested that if his father had not suffered from his illness Paul would have been unlikely to return to Scotland from Reading. He described how he, his brother and his mother had all been with the deceased in the hospice for the six hours or so before he died.

Section 1(4) of the Damages (Scotland) Act 1976 has applied in its present terms in respect of deaths after 18 April 1993 following amendment by the Damages (Scotland) Act 1993 - the same Act which, by amending section 2 of the 1976 Act, allowed the deceased's claim to solatium to be transmitted to the first pursuer as executrix dative. Prior thereto relatives such as the pursuers would have been entitled under section 1(4) of the 1976 Act as originally drafted to "such sum of damages if any as the Court thinks just by way of compensation for the loss of such non-patrimonial benefit as the relative might have been expected to derive from the deceased's society and guidance if he had not died; and a sum of damages such as is mentioned in this subsection shall be known as a 'loss of society award'". This of course replaced the previous relatives' claim at common law for solatium. There has been, I was informed, no reported decision under the present terms of section 1(4) of the 1976 Act as amended in 1993. Although the parties' submissions as to how the Court should approach the assessment of appropriate awards ultimately, as will be seen, diverged substantially, they were agreed that in order to understand at least in outline the history of how the Courts had approached claims for relatives prior to the recent change and to find the mischief with which the change was apparently concerned, it would be helpful to begin by consideration of the Scottish Law Commission Report on The Effect of Death on Damages presented to Parliament in March 1992 (Scot Law Com No.134). It seemed to me that in relation to these matters in the discussion within the body of that report there was no dispute between the parties before me not merely as to what was said by the Commission but also as to its accuracy.

It is plain from paragraphs 1.1 and 1.2 of the Report that it bore to examine certain limited questions concerning claims for damages in pursuance of a reference made on behalf of the Secretary of State for Scotland under section 3(1)(e) of the Law Commissions Act 1965 "to consider the case for amending the law of damages in Scotland having regard to the possibility that there may be an incentive inherent in the present law for a defender to postpone making settlement or reaching proof until after the death of the pursuer in order to minimise the amount of any compensation to be paid". In paragraph 1.2 headed "The problem", the Commission noticed that underlying the reference was a growing concern about the effects of the Damages (Scotland) Act 1976 on claims arising from terminal industrial disease. Particular public attention had focused on asbestos induced disease. The nature of the disease was such that death might intervene before the victim could initiate a claim or pursue a claim to its conclusion. As more fully described in Part II (in particular paras. 2.9 to 2.11), the principal problem was that as the law then stood the injured person's claim for solatium was extinguished by death and could not be taken up by an executor (section 2 of the Damages (Scotland) Act 1976). The immediate family, who, it was noted, would normally inherit the injured person's estate, were therefore deprived of any benefit which they might otherwise have had from the non-patrimonial claim. Even though new claims would emerge at the instance of relatives which they could pursue in their own right, evidence suggested that the injured person's family was still likely to be worse off as a result of his or her untimely death, the main reason for the discrepancy being that loss of society awards tended to be smaller than awards of solatium for serious injury. It was in that context essentially that consideration was given to the then current position of awards for loss of society. In particular one possible solution canvassed by the Law Commission to the problem which they had identified was to enhance the loss of society award (e.g. paragraph 4.3 and following).

In paragraph 2.19 the Law Commission record that the loss of society award replaced an earlier form of non-patrimonial compensation, and report not merely that it was not only a token payment but that it was capable, under reference inter alia to Black v North British Railway Company 1908 S.C.444 and McLeish v Fulton & Sons 1955 S.C.46, of covering laceration of a relative's feelings in contemplation of the pain and suffering of the deceased before death, and, under reference inter alia to Kelly v Glasgow Corporation 1949 S.C.496, of covering loss of emotional support and guidance after death.

These cases were also specifically referred to by counsel for the defenders. In the case of Black at page 453 Lord President Dunedin said:

In Kelly Lord Normand at page 18 said:

In the same case in the Inner House (1949 S.C.496 at page 501) Lord Russell said:

In the case of McLeish Lord Carmont at page 48 said:

The Scottish Law Commission further record in the Report that following the introduction of the loss of society award in 1976 differing views were expressed in the Inner House (albeit apparently obiter) about the extent to which the introduction of new language required the Court to take a different approach.

In the first place the Commission record the opinions of the judges of the Second Division in Dingwall v Walter Alexander & Sons (Midland) Ltd reported in 1982 S.C.(H.L.) 179. Lord Justice Clerk Wheatley expressed the view that with the abolition of solatium and the substitution of the loss of society award, it must be presumed that something different was intended. At page 209 he said:

Lord Kissen agreed that the loss of society awards should be increased by one-third, but expressed his reasons somewhat differently. He said at page 220:

Lord Robertson, dissenting, said:

He later said:

Secondly, the Scottish Law Commission made reference to the opinion of the First Division in Donald v Strathclyde Passenger Transport Executive 1986 S.L.T.625. In that case counsel for the defenders had argued at one point that the words of the 1976 Act were not apt to cover compensation for all non-patrimonial loss and in particular that it was difficult to see how grief, distress and laceration of feelings could be a benefit which a relation might have been expected to derive as a result of the deceased's loss of society and guidance. It was argued that the compensation provided for under the Act of 1976 was therefore something less than an award of solatium would have provided. At page 628 the Court said:

The Scottish Law Commission record their view that in light of these opinions the present state of the law as to the content of the loss of society award was difficult to determine and that the extent to which there was then judicial concensus on the matter was not all together clear. They nevertheless record (at paragraphs 2.7 and 2.23) that what they call "all three sources of injury to feelings" (apparently laceration of feelings in contemplation of pre-death suffering, grief and distress at death and loss of society and guidance) had been taken into account in awards for loss of society. Reference is made in particular, so far as grief and distress is concerned, to Dingwall (and there is, it seems, no doubt that the Court in Donald also thought that it required to be considered). So far as laceration of feelings in contemplation of the deceased's suffering is concerned, reference is made to the case of Donald, where the Court supported the sheriff's consideration of pre-death anxiety as a relevant ingredient. (See page 627).

Although in the event the Commission rejected the possible canvassed solution, to the particular problem which they faced, of enhancing loss of society awards (see paragraph 4.3 to 4.6) and recommended that the deceased's claim to solatium should transmit to his or her executor, they equally did not recommend that the language of section 1(4) as originally acted be left intact. It seems clear that in recommending the change to the language which ultimately was adopted by Parliament in the 1993 Act (referring explicitly to three elements of injury) their purpose was not to extend the relatives' claim, (as they had reported, the courts had in practice recognised that all three elements could in practice be taken into account under the existing language), but because they were concerned as a matter of language with the juridical basis for the Court's approach. In particular at paragraph 2.7, in relation to loss of society, they report:

It is for these reasons that the Commission speak of their apparent concern that the approach of the Courts "does not appear to us to have a secure juridical foundation" (paragraph 2.32) and in paragraph 3.21 of the need, if there was to be retained a non-patrimonial award for relatives, to clarify the conditions under which it could be made. In the concluding section of the Report, it is against that background that the Commission, in suggesting the reformulation which has been adopted by Parliament, say:

In paragraph 4.39 they say that it seems better "to recognise what has now become established in the practice of the Courts and to secure that practice with appropriate legislation. We can see no particular reason why some forms of emotional or mental suffering should be compensated and others not, or any distinction in this respect should be made between awards of solatium and non-patrimonial awards to relatives". Finally at paragraph 4.45 the Commission underlined the apparent reasoning behind their proposal, emphasising that it "is not intended to change the basis of the loss of society award as it is now interpreted by the Courts but merely to clarify it and secure it legislatively".

Although thus the central purpose of the Scottish Law Commission's recommendations appears clear, it is also perhaps right to notice in the Report - quite apart from the basic observation that awards for loss of society tended to be less than awards for serious injury (a discrepancy which gave rise to the problem which the Commission were essentially trying to solve) - that at a number of points the Commission expressed the view that the approach of the Courts to the levels of loss of society awards was "restrictive". At paragraph 2.12 for example, having recorded that reported cases in the Court of Session encompassed loss of society awards to a spouse ranging from £5,500 to £12,500, and awards to children ranging from £600 to £10,500, the Commission observed that "The point was frequently made to us that these levels were too low". At paragraph 3.22 they also say:

It is for this reason, no doubt, that at paragraph 4.39 the Commission observed (in relation to the proposed new wording):

Against that background it was submitted on behalf of the pursuer that there were essentially two different potential approaches open to the Court. The primary submission was that with a new section and new language the Court should start afresh, with a clean sheet; in particular that the Court should not seek to obtain any assistance from previous decisions - particularly, but not only, in relation to the claims of the second and third pursuers, past awards in respect of adult children having been, it was said, notoriously low.

Secondly, if that was not appropriate, any previous awards should be looked at with particular care. The apparent differences of approach between Dingwall and Donald did not suggest that any consistent approach had been applied in practice. In looking to any previous authority care would have to be taken that all three elements of the present section 1(4)((a), (b) and (c)) had been taken into account (and not just (c) or (b) and (c)) and it would be necessary to recognise that, in perhaps the majority of cases, where death was immediate, factor (a) would not have been applicable.

In relation to the first pursuer's claim as widow, it was said that the most relevant recent case was Davidson v Upper Clyde Shipbuilders Ltd 1990 S.L.T.329 - a case in which the widow of a 58 year old shipyard worker who had died as a result of mesothelioma was awarded £9,500 for loss of society (having an updated value of circa £14,000). It was not clear, it was submitted, that distress in contemplation of the suffering of the deceased before his death had been taken into account. In relation to the sons' claims, I was referred primarily, as an illustration of the care that would require to be taken, to the case of Britton v Maple & Co Ltd 1986 S.L.T.Notes 70, in which the 28 year old son of a deceased father who died from asbestosis was awarded £600 for loss of society (updated value £1,056). It was, it was said, reasonably clear from the report that no account had been taken of what is now factor (a) in section 1(4) of the 1976 Act. The case which the Lord Ordinary had found most helpful in reaching his assessment was Parker v Wigtown District Council 1981 S.L.T.(Notes) 95 which concerned a widow's claim for loss of society arising from an apparently immediate death. The most recent up to date authority in relation to adult children (albeit one in which factor (a) could not be relevant, it being a case of immediate death) was said to be Morrison v Forsyth1995 S.L.T.539. In that case a 39 year old man died leaving a wife and two daughters aged 19 and 16 and a son aged 13. The daughters had left home but the son lived with his father. The eldest daughter had lived with her parents until some two years before his death when she left to work elsewhere. She had kept in touch with him by regular weekly telephone calls and he had visited her on occasion. She was close to her father. The other daughter had left home before her father's death but was living in the same city and kept in touch with her parents. In that case loss of society awards of £2,000, £2,500 and £4,000 (updated values £2,200, £2,750 and £4,400) were made in respect of the children.

It was further submitted that either approach would be helped by consideration of recent jury awards. I was referred in particular to the case of Wells v Hay decided on 25 November 1998 and to a draft report which had been accepted inter alia by McEwan & Paton on Damages. The case concerned the death of a 19 year old boy who had been involved in a road accident and who suffered serious multiple injuries including 60% full thickness burns to his face, hands, neck, arms, chest, back, abdomen, upper buttock and left lung. He died in hospital some sixteen days later. So far as relevant to loss of society the draft report records, in relation to the mother's claim for loss of society in respect of her son's death, "Close family - 19 year old son, still living at home but intending to join Marines, sustained serious injuries in 'horrific' road traffic accident and died sixteen days later, mother keeping vigil in hospital. Mother, single parent, distressed by son's injuries and suffering and by his death. Greatly missed him. Total sum claimed for mother was £40,000. Jury award was as follows: section 1(4) award - past £25,000, section 1(4) award - future £12,146.37". Funeral and headstone expenses were apparently agreed at £2,853.63 so that the total award was of £40,000, namely the sum claimed. Reference was also made to the case of Kempton v British Railways Board reported at 13/93-2 in McEwan & Paton. The short report records that the deceased was aged 39 at death, his widow aged 37. There were three sons aged 16, 12 and 8 and one daughter aged 6. Two of the children's claims were settled extra-judicially. The widow was awarded £35,000 for loss of society (£5,000 to the past), the son aged 12 was awarded £11,500 (£2,500 to the past), and the son aged 8 was awarded £11,500 (£2,500 to the past).

In all the circumstances it was submitted that in this case, where all three factors recognised by section 1(4) were plainly present, an appropriate award for the first pursuer might be £40,000 and for each of the sons £10,000.

On behalf of the defenders it was submitted that where it was clear that the Scottish Law Commission Report, which promoted the new language, was aimed primarily at providing a more secure juridical basis for the practice of the Court, it would be wrong to ignore the guidance which previous authority could give. Secondly, it was submitted that the jury awards referred to could not be of much assistance - a motion for new trial having been enrolled in Wells, and Kempton being an isolated example with little detail available. As to previous authorities, although it was accepted that it would be right for the Court to be astute to notice whether such decisions did always recognise the three elements now clearly identified, it would be wrong, particularly in light of the clear view of the First Division in Donald, to conclude merely because, for example, factor (a) was not mentioned (as it was not, it was accepted, in the case in Davidson) that it was not taken into account. I was referred to a further case of a widow's claim arising from a death by mesothelioma, Howie v Upper Clyde Shipbuilders Ltd 1991 S.L.T. There the deceased had survived for some two and a half years after diagnosis before dying aged 61. The Lord Ordinary awarded the widow £10,000 for loss of society. It was submitted that although one could not tell from the report whether the pursuer's distress in contemplation of the deceased's suffering was taken into account, it would not be wrong for the Court to take the view that, unless it was clear to the contrary, it had been recognised in the award made. So far as the present first pursuer's claim was concerned I was also referred to the case of Morrison where the 39 year old widow of the deceased who was the same age - albeit the case was one of apparently of immediate death - was awarded £10,000; to Wotherspoon v Strathclyde Regional Council 1992 S.L.T.1090 where in May 1992 the 33 year old widow of the deceased aged 40 was awarded - again a case of apparent immediate death - £12,000; Phillips v Grampian Health Board (No.2) 1992 S.L.T.659 where a widow, 22 at the death of her husband aged 26, was awarded £12,000, albeit there had been difficulties in the marriage, and to Campbell v Gillespie 1996 S.L.T.503 where the 27 year old widow of a 37 year coastguard who died in an accident was awarded £13,500. On the basis of the authorities it was submitted that an appropriate award would now lie between £13,500 and £14,000. If that sort of level of award was thought not to reflect the pursuer's distress in contemplation of the suffering of the deceased prior to death, a further sum of £1,000 to £1,500 could properly be added. In relation to the second and third pursuers, and in the light of the case of Morrison - particularly in light of the updated value of the awards for the two elder children in that case, who were younger than the second and third pursuers in this case - it was submitted that the awards should not be higher than £2,000 to £2,500. Although it was recognised that the case of Morrison was a case of immediate death, any uplift to reflect section 1(4)(a) should be relatively minimal.

It was the pursuers' submission that 50% of the loss of society awards should be taken as past loss, with interest at 4% from the date of death. The submission on behalf of the defenders was that a third of any award should be taken as past loss. It was agreed that the appropriate rate of interest should be 4% from death.

As to the general approach to be adopted it seems to me in the first place - against the background that the reformulation proposed by the Scottish Law Commission (and subsequently adopted by Parliament) was apparently not intended to change the basis of the loss of society award (having regard to the wide interpretation of that award which the Courts had been prepared to countenance) "but merely to clarify it and secure it legislatively" - that it would be wrong to ignore such guidance as previous awards could give.

Secondly, however - particularly in a case like this where all three elements identified in the new language of section 1(4) would require to be compensated - it would be right to look with care at any previous awards. In particular, although it is arguable no doubt that in many cases of immediate death the suddenness and shock of that death might produce greater emotional upset at that time, many of the cases are cases arising out of immediate death and such cases do not have the potential for an award for distress in contemplation of the suffering of the deceased prior to death, which in the case of terminal illness can be significant. Equally, given the differences of view expressed in Dingwall and Donald, it would, it seems to me, be wrong to assume, even in cases where all three elements could have been included, that they always have been. The Scottish Law Commission themselves did not appear to identify an invariable practice, and neither party was able to advise me of any case in which what is now the factor identified as section 1(4)(a) was clearly and expressly taken into account. Indeed it seems to me that the differences of view apparently expressed in Dingwall and Donald stemmed essentially from differences of view as to what solatium could include, all of which tends to suggest that even prior to 1976 there was no universal agreement as to what an award for solatium in practice encompassed. It is interesting to note that in 1973 the Scottish Law Commission Report on the Law Relating to Damages for Injuries Causing Death (Scot Law Case No. 31) which pre-dated the 1976 Act - to which I was referred by counsel for the defenders and which somewhat optimistically suggested that "loss of society" was a term which "would be readily understood" - proceeded on the view that solatium was an award which "depends on grief and sorrow and not on loss of society" (para 105). In short it seems to me that it would be wrong to assume, unless it was clearly recognised in any previous case, that a relative's laceration of feelings in contemplation of the deceased's suffering before death had been included in the assessment of loss of society, particularly where cases relied upon for comparative assistance were or included those of immediate death.

Thirdly, although it seems to me that limited assistance, particularly as to any detailed figures, could be taken from the two jury awards to which I was referred, it would be wrong to ignore altogether the award in Kempton. The case of Wells it seems to me has, at this stage, to be essentially disregarded since it is under challenge. I note that Lord Hope of Craighead in Girvan v Inverness Farmers Dairy (No.2) 1998 S.L.T.21, in the context of the proper approach to the assessment of whether an award of solatium by jury has resulted in excess of damages, said at page 31:

The relevant claim in any event in Wells was that by a mother in respect of the death of her 19 year old son in special and particularly horrifying circumstances. Equally in relation to Kempton the Court would have to be guarded. In the first place whereas a pattern of apparently similar jury awards could be of plain assistance, the Court would necessarily have to be circumspect as regards a single instance. In addition there is a marked absence of any detail as to the background of the case. As with any jury award it is also of course not possible to analyse how the award was reached, nor which part or parts of the evidence the jury accepted and valued as important and which not.

On the other hand, whereas it would be wrong to substitute for any consistent practice any personal views formed in the abstract as to the value of loss of society awards, it would be wrong also, I consider, to ignore the fact that, as it seems to me, at least in general terms compared with awards routinely made by judges in cases of minor injuries or of distress and upset of apparently less serious nature, loss of society awards have, to a degree, fallen out of step with the general level of awards - particularly perhaps, so far as relevant to the instant case, in relation to adult children on the death of a parent. To that extent I agree with the views expressed by the Scottish Law Commission in the Report (and by those from whom they took evidence). This view if not confirmed by an award such as that made in Kempton is at least given some support thereby.

It is also of course right to recognise clearly that, as in all cases, whatever guidance may be afforded by previous decisions, whether by judges or juries, the Court's task is to make an award which would represent fair compensation in light of the particular facts of the case. In that connection I consider that Mr Maguire was right to emphasise that in this case all three elements now identified in section 1(4) were plainly and fully present both for the deceased's widow and the two sons (although I also bear in mind that to some extent they were perhaps better able than others to articulate the sort of feelings which would often be present in the case of a death in similar tragic circumstances).

As to the appropriate award for the first pursuer in this case, it is perhaps instructive to consider first the sort of award which might be suggested by previous authority in cases of immediate death. A figure in the region of £15,000 would appear to be indicated. The case of Morrison was somewhat special in that the parties had separated before the death and it appeared to be agreed between counsel that in "an ordinary case" an award of £12,500 would have been appropriate. Updated that would be £14,650 or thereby. The award in Wotherspoon would now be £14,400 or thereby, and in Campbell about £15,000. Although the widows in those cases were each to a degree younger the clear evidence in this case of a long and very happy marriage would have to be taken into account. Further the level of awards in those cases to which I was referred where death occurred after a period of illness (and thus where the widow's distress in contemplation of the deceased's suffering could have been relevant) would suggest a figure not much different when updated. Although the updated figure for both Howie and Davidson would be around £14,000, the deceased was older in Howie than in the present case and in Davidson there was no evidence led (as was recognised in Howie) of a marriage of a long and happy nature. It does seem to me to be reasonably clear from consideration of the reports in these cases, and in Phillips, that no regard or at any rate no special regard was had, in assessing the award, to the widow's distress in contemplation of the deceased's suffering prior to death. In Davidson the deceased died of mesothelioma at the end of July 1985, the condition having been diagnosed in January 1985. In assessing the level of loss of society award the Lord Ordinary founded in particular in the case of Dingwall, and the previous awards to which the Court was referred (which were mainly distinguished inter se having regard to the ages of the widow and deceased involved), were cases mainly of immediate death. Whereas grief and loss of society after death were expressly mentioned, there is no specific reference to the widow's distress in contemplation of death. It appears the Court was not referred to the case of Donald. In Howie the deceased died in August 1988, the condition of mesothelioma having been diagnosed in 1986. Although the Court recognised for the purposes of the executry claim the upset which the revelation of his lung condition had had upon the deceased, there was no express reference to any distress suffered prior to death by the widow and the authority particularly referred to for comparison was Davidson. Again in Phillips there was no specific reference to the widow's distress in contemplation of the deceased's suffering and the case of Donald appears not to have been before the Court. Starting therefor with the base figure of £15,000 it seems to me that a reasonable figure in the present case for the first pursuer, both to reflect in particular the distress which she did suffer, especially from Easter 1996 until December of that year, and the view that loss of society awards have tended, relatively at least, to be on the low side, would be £20,000.

In relation to the two sons the parties were agreed that it would be wrong to draw any distinction between them notwithstanding their slightly different circumstances. Equally both were agreed that using the case of Morrison as a guide, an updated figure for children of the age of the pursuers would be in the region of £2,000 to £2,500. That case of course concerned a case of immediate death. I do not think much assistance can be gained from the cases of Britton and Parker which were decided some substantial time ago and which again appeared to be decisions in which the children's distress in contemplation of their parent's death was not considered as a specific element in the assessment. Starting with a figure of about £2,250, I consider that appropriate awards in this case, having regard to the distress which the two pursuers suffered in contemplation of their father's illness and to the view that previous awards have been, relatively speaking, low, would be £5,000.

I consider it appropriate that half the loss of society awards in each case be taken to represent the past and that interest should run at 4% from the date of death.

The evidence disclosed that the deceased was in regular employment and that but for illness the probability was that he would have worked on until he was 65. It was accepted that his net annual earnings at the date of death were £20,620. The first pursuer herself earned about £60 net per week, i.e. an annual figure of £3,120 net. They pooled their finances. These were used to meet the ordinary running expenses of the family home - gas, electricity, telephone etc. The mortgage had been paid off. Together they spent sums on meals out and on holidays. It was said that the deceased did not spend much on himself, although he liked to dress tidily. The first pursuer continued to live in the family home.

It was agreed between parties that the proper approach was to assess a suitable annual figure for loss of support and multiply that by an appropriate multiplier. There was also agreement that the appropriate way to assess the annual figure was to take an appropriate percentage of the combined incomes of the pursuer and the deceased, as representing the sum available for her support, and thereafter deduct £3,120 being her own annual income. Mr McGuire referred me to the case of Wotherspoon where the Court followed the approach described by Lord Sutherland in Brown v Ferguson 1990 S.L.T.274, where it was said:

It was accepted, however, that that was not appropriate in this case where, unlike in Wotherspoon and Brown, there were no young children in addition to the spouse dependent on the deceased. Equally it was submitted that it would not be appropriate to take 50% of the combined income as this would not adequately reflect the fact that many of the expenses of living which the pursuer now has are likely not to be materially less than the combined expenses of herself and the deceased when he was alive. I was referred to the case of Davidson where Lord Milligan said in relation to this:

It was submitted that in this case, having regard to the evidence that the pursuer continued to live in the same house and that the deceased did not spend much on himself, an appropriate figure would be 66% of the combined total of £23,740, which, after deduction of the pursuer's own income, would produce an annual figure of £12,786. Counsel for the defenders submitted that an appropriate figure to take from the combined income was 50%, where the combined income was pooled. Reference was made to the similar approach taken in Phillips under reference to Porter v Dickie 1983 S.L.T.234. This, after deduction of the pursuer's own income, produced an annual figure of £8,750.

It seems to me that this is a case in which, although the evidence was not detailed, some allowance would require to be made for the factor recognised in the case of Davidson. In Phillips by contrast the Court noted that the pursuer was now accommodated in quite different circumstances. Broadly I consider that the evidence in this case (taking into account also the evidence about the deceased's own spending) would justify taking 60% of the combined income. Deducting £3,120, this would produce a figure annually of £11,120.

So far as the multiplier was concerned, parties before me were essentially agreed that, in light of the House of Lords decision in Wells v Wells 1998 3 WR 329, as applied in Scotland to loss of earnings claims by Lord Macfadyen in James McNulty v Marshalls Food Group Ltd, 23 October 1998 and Lord Eassie in Logan v Strathclyde Fire Board 12 January 1999, the appropriate starting point at least was to select a figure by reference to the Ogden Tables, on the basis of a rate of return of 3%. It was agreed that the appropriate Table 3 (multipliers for loss of earnings to pension age of 65 (males)) produced a figure of 7.5; that, under paragraph 31 of the Tables, for contingencies other than mortality it would be appropriate to reduce the multiplier by a factor of 0.90, and that the figure should further be reduced to take account of the deceased's apparently "risky occupation" and residence in Scotland, under paragraphs 38 and 40, by 0.05 in each case respectively. This would produce a figure of 6.5. It was argued, however, on behalf of the pursuer that since the evidence disclosed that the pursuer had always worked (the evidence suggested he had worked for 25 years for the same company with no gaps save for one occasion, a strike) and was a very fit man, the appropriate figure remained one of 7.5. On behalf of the defenders it was argued that the Court should not be a slave to the multipliers, that the sort of figure a traditional approach would have produced was 5 and that the pursuer's approach took no account of the contingency that the widow herself might not survive. As to her state of health there had been no evidence. In these circumstances it was submitted that a multiplier of 6 or 6.5 was appropriate.

It seems to me in all the circumstances that a reasonable figure would be 6.5. This produces a figure for loss of support from the deceased's earnings of £72,280. It was agreed that there would require to be added to that the figure of £22,500 as prospective loss of support from the deceased's pension. The past element of loss of support is £26,873.33 on which it was, as I understood it, agreed that interest would run at 4% from the date of death. This would produce a further £2,597.72.

The evidence from the pursuers themselves disclosed that up until Easter 1996 the deceased was to a degree less active and took less part in the household chores with which he was in the habit of assisting, such as hovering, ironing etc. The first pursuer essentially did what he would have done. There was no evidence that during this period anything more specific was done to help him in respect of his apparently deteriorating condition. In the next period from Easter 1996 until the beginning of chemotherapy in June the first pursuer tried her best to make the deceased as comfortable as she could. She did more fetching and carrying for him, and saw that he was regularly supplied with fresh laundered shirts. She gave considerable emotional support as did her sons. Her son Mark took the deceased to doctors and to hospital and all the family gave him support while in hospital. This help continued during the period of chemotherapy until the end of September, save that there was a marked increase in the help offered to the deceased. The first pursuer made him special meals and helped him to dress and undress and with the stairs. For the period from the end of September until the deceased's death there was a further increase in the assistance afforded by all members of the family, in particular the first pursuer (who took leave of absence during the last two weeks to devote herself fully to him), who particularly assisted with washing, bathing and with his medication.

It was agreed that an appropriate award in respect of services rendered to the deceased by the pursuers for the three months prior to his death would £4,620 exclusive of interest. There was disagreement as to the appropriate figure for the period prior thereto. It was also agreed that it would be unnecessary in this case (having regard to agreement of all the pursuers) to isolate in any award sums attributable to services rendered by each of the pursuers, such as might normally be appropriate having regard to the obligation to account under section 8(2). As to the period prior to September 1996 Mr McGuire essentially argued that I should follow the figures suggested in Mr Young's evidence, which was based on but differed to a degree from the report to which he spoke. On the basis of a visit to the pursuers and discussion with them, he had estimated a number of hours per week for services in different periods and applied BNA Home Help net rates (that is exclusive of agency commission and VAT, leaving essentially the staff fee) and, to a limited degree in the period of chemotherapy, BNA nursing care net rates. For the period to March 1996 the total figure was £763.36 (52 weeks x 4 hrs per week x 3.67 per hour). For the period March to June 1996 his overall figure was £1,541.40 (15 weeks x 4 hrs per week x 7 days x 3.67 per hour). For the period thereafter until the end of chemotherapy Mr Young in evidence took a period of 12 weeks at a total of £2,610 (12 weeks x 7 days x 5 hrs per day x £3.93 per hour + 12 weeks x 7 days x 2 hrs per day @ £5.72 per hour). He also in evidence added a figure of around £191 for family visits to hospital during chemotherapy (56 hours @ £3.67 per hour). The overall total of this was £5,105.76. I was referred to Robert Myles v City of Glasgow District Council, reported in Quantum at page 1112, where Lord Abernethy in August 1994 proceeded on the basis of an assessment of future services which Mr Young had made, although the report does not suggest on what basis that assessment was made nor that there was any dispute.

On behalf of the defenders it was submitted that I should not accept Mr Young's approach. He had proceeded, it was argued, on the basis only of what he had been told in a very short visit (in evidence Mr Young said his visit lasted between one and a half and two hours). This was not clearly reflected in the evidence given by the pursuers in Court which was the best evidence. On top of that he had made his own assessment of the hours which would be appropriate, not an assessment of the actual hours, and of the appropriate figures for "bought in" help. The BNA figures, even net of commission and VAT, were not necessarily apt in relation to services offered by the members of a family to a relative in the home. Tax and national insurance payable by staff were not taken into account. Further, as a result of the parties' agreement in relation to the last three months, Mr Young, through no fault of his own, had had some difficulty in adjusting in the witness box his original figures to reflect the earlier period of chemotherapy. I was referred to Kennedy v Lees of Scotland Ltd 1997 S.L.T.510. In that case, in relation to services rendered by members of the family to a production line worker who had sustained wrist injuries, Lord Gill said:

I was also referred in this connection to the case of Farrelly. There, it was said, on a broad basis Lord Prosser had assessed the emotional and psychological help which the pursuer's wife had given the pursuer from diagnosis to the date of proof (apparently some 60 weeks) at £50 per week, and, as to the future, on an estimate of further survival for a year during which there would be, it was thought, a difficult three month terminal period, with positive physical attendance and care being likely for the whole period, the Court had estimated £145 per week for the first nine months. The submission on behalf of the defenders was that in all the circumstances the evidence did not suggest that any award was appropriate before Easter 1996. From then until the beginning of chemotherapy in June it was suggested that a period of eight weeks at £50 per week would be appropriate (namely £400). Finally for the four months ending in September during the period of chemotherapy a figure of £100 per week could be taken for sixteen weeks, producing £1,600 - and thus an overall total of £2,000.

I have come to the view that while there is some force in the submissions made by counsel for the defenders - and that broadly speaking for the reasons argued it would be wrong simply to accept Mr Young's figures - nevertheless in relation to this matter (as opposed to his assessment of the section 9 claim) the pursuer's expert is less open to criticism - not least given my clear impression that the pursuers (particularly the first pursuer) tended to under-estimate, in evidence at any rate, the services they afforded. It seems to me that I can reasonably use Mr Young's overall figure as a useful check. In this case, unlike the case of Kennedy, substantial services were rendered in respect of a serious illness and simply to take half the BNA rates (as was done in that case) would not represent a fair reflection of the efforts of the pursuers. In my view for the period to Easter 1996 (and no claims were made for this period under section 9), a nominal award would be appropriate for the section 8 element of the additional work done by the first pursuer. I consider £500 would be appropriate. The next period, until the beginning of chemotherapy, is I think reasonably estimated at twelve weeks and given the degree of emotional and physical support offered, I consider a figure of £100 per week for services, producing a total of £1,200 for that period, would be appropriate. For the period of chemotherapy it seems to me that over the sixteen weeks or thereby a figure of £150 per week would be appropriate (Mr Young's figure was of about £200 per week), producing £2,400, to which would fall to be added Mr Young's figure (rounded up to £200) for attendance on the deceased while in hospital for chemotherapy. This would produce an overall figure of £4,300. Added to the agreed figure for the last three months, the total figure for the section 8 claim would thus be £8,920. It was agreed between the parties that interest would run on that total sum at 8% from the date of death. This would produce a further £1,724.53.

This claim was as I understood it presented in respect of loss to the pursuer as an individual of services which previously had been afforded by the deceased. The evidence disclosed that prior to his death the deceased, who was a plumber to trade, (and who worked as a pipe fitter) had done major work about the house, including converting the attic, fitting a bathroom and the kitchen. He had built a wrought iron gate outside. Inside the house he was the person who did all the decorating, including wallpapering and painting. He cleaned the windows. He spent substantial time in the garden. He also helped with housework, although the impression given by his widow in evidence was that he would assist from time to time to help clear the house before they both went out, perhaps then doing a quarter or half an hour's work or so. Weekly he would drive the pursuer to the supermarket. Since his death the first pursuer had paid tradesman about £350 for outside painting and £200 for inside painting and decorating. She had engaged a plumber to mend a drip for £40, and she engaged a window cleaner at £2.50 every two weeks. On the evidence there was some doubt as to whether this related solely to the outside of the windows. Neither of her sons were particularly handy. She now required to pay for painting and decorating, window cleaning and work inside the house, particularly any major works of the kind which the deceased had undertaken. Although essentially she did all the housework etc., Mark helped with the garden.

Mr Young valued the deceased's services in assisting with housework etc at £1,768 per annum (that is 52 weeks x 8 hrs per week @ £4.25 per hour based on BNA home help net rates). Home decoration was estimated at £600 per annum (two rooms per year x 2.5 days per hour @ £120 per day based on certain figures taken from decorators). Window cleaning on the basis that inside and outside windows were done by the deceased, he estimated at £130 per annum. Garden care was estimated at £378 (3 hrs per week x 28 weeks per year x £4.50 per hour drawn from experience). Home repairs, maintenance and adaptations excluding major items were, based on certain builders rates, valued at £2,016 per annum (18 days x 18 hrs per day @ £14.00 per hr) - a total of £4,892. Although Mr McGuire referred to these figures, and to that total, he accepted that in relation to home repairs the estimate of time taken was almost certainly too high having regard to the evidence which was given. He accepted that the Court would require to take a broad view and suggested a figure of £3,000 per annum. I was referred to Farrelly, where the deceased's services were estimated at £2,000, £840 of which was agreed to represent time devoted to maintenance and improvement work in the family home and the rest domestic work about the house, including help with preparing an evening meal. On the appropriate multiplicand the defenders repeated the criticisms of Mr Young's approach and suggested that the assessments in respect of domestic services and for home repairs (which worked out at 6hrs per week) were plainly excessive having regard to the evidence given by the pursuers themselves and to the costs which had been incurred since death. It was agreed that a broad approach would be appropriate. Reference was made to Beggs v Motherwell Bridge Fabricators Ltd 1998 S.L.T.1215 where Lord Eassie said:

It was suggested that in this case a figure of £1,000 per annum would be appropriate.

On this matter I had more sympathy with the defenders' approach. In particular it seemed to me that it was difficult to place much weight on Mr Young's calculations and there was no obvious reason provided for the selection of £3,000. The decision in Farrelly on this matter was, it seems, made on evidence particular to it. Although the evidence of actual expenditure by the pursuers since the death suggested expenditure of only some £300 to £400 per annum, this of course took no account of major work which might be needed from time to time or of the matters which the pursuer now simply did herself. On a broad basis it seems to me that the evidence did disclose that the deceased was particularly adept at a wide variety of tasks and a figure of £1,500 per annum would be not unreasonable.

As to the multiplier, on behalf of the pursuer it was argued that the appropriate starting point again would be a figure drawn from the Ogden Tables and in particular Table 11 (pecuniary loss for life (males)) which produced a figure for a male of 56, at 3%, of 16.48. It was accepted that this would require to be substantially

discounted as it was to be expected that as the deceased grew older he would not have been able to provide services on the same basis. It was also accepted that the contingency of the first pursuer's demise would require to be allowed for. Given that on a conventional basis in Farrelly, where the pursuer was 62, a multiplier of 7 was taken, it was suggested that a figure of 12 would be appropriate. On behalf of the defenders it was submitted that the tables on this matter provide no helpful guide and that, looked at broadly, a multiplier of 10 would be appropriate.

Starting from the tables it seems to me that the appropriate table, consistent with the parties' earlier approach, is Table 1 not Table 11 (the latter being a table concerned with projected improvements in mortality rate). The appropriate figure from Table 1 would be 14.92. Thereafter, applying a substantial discount for the reasons accepted by the pursuer, I consider that a figure of 10, as indeed submitted on behalf of the defenders, would be reasonable. This produces an overall figure of £15,000. Of that £3,625 would be referable to the past, on which there was no dispute that interest at 4% would run from the date of death.

My assessment of the appropriate awards is therefore as follows.

1. The first pursuer as executrix-dative

2. The first pursuer as an individual

3. Second pursuer as an individual

4. Third pursuer as an individual

It was agreed that under section 15 of the Social Security (Recovery of Benefits) Act 1997 the appropriate amount which required to be specified as representing, in terms of schedule 2 to that Act, compensation for earnings lost during the relevant period, was £ 11,492 (being as I understood it the deceased's loss of earnings from the start of the relevant period within the meaning of section 3(3) of the Act, namely 22 April 1996). It was also agreed that no part of the award would represent compensation for loss of mobility during the relevant period within the meaning of schedule 2. A question arose, however, as to whether the figure assessed in respect of services rendered to the deceased under section 8 of the Administration of Justice Act 1982 should be specified as the amount of compensation attributable to "compensation for cost of care incurred during the relevant period" within the meaning of that schedule. If it did, the effect of the Act would be that the defenders would be entitled to deduct certain benefits received by the deceased, namely under schedule 2, any attendance allowance, the care component of disability living allowance and disablement pension increase payable under section 104 or 105 of the 1992 Act, in payment of damages (section 8 of the 1997 Act).

On behalf of the pursuer it was argued that an award for services rendered to an injured person under section 8 could not, as a matter of language, be described as compensation for cost of care incurred. That language was perfectly apt to cover the case where care was bought in, but not an award to represent reasonable remuneration for services rendered without return from the injured party. To construe paragraph 2 of schedule 2 of the 1997 Act as excluding the section 8 claim could not be said to lead to any absurdity or injustice (reference was made briefly to Anderson v Gibbs 1993 S.L.T.728). Instead, it was argued first that to allow for any deduction would lead (for reasons I confess I did not wholly follow) to the anomaly that an injured party would be better off engaging and paying for assistance. Secondly, it was argued that the effect of any deduction would be to reduce the benefit available to the provider of services by the amount of benefits paid to the injured party as his own. Although reference was made to parts of Hansard it was accepted ultimately that none of the passages referred to were of any assistance, even if it was appropriate to look at them.

On behalf of the defenders it was accepted that the language of schedule 2 was not obviously helpful. It was, however, argued that the effect of section 8 of the 1992 Act was to provide compensation as if costs had in fact been incurred. Further it was not unreasonable that benefits, paid to help an injured party cope with disabilities and which could be used to reward others who helped, be deductible from sums payable in the first instance to the injury party. The purpose of the Act was to avoid a pursuer being compensated in two forms to meet the same need.

It seems to me that on this matter the argument of the pursuers is to be preferred. The language of the relevant part of schedule 2 is, I consider, quite inapt to cover an award under section 8 designed to represent "reasonable remuneration" for services etc where no costs have actually been incurred by the injured party. Given further that the ultimate benefit of a section 8 award is intended to be received by the provider of services (standing the obligation to account placed on the injured party under section 8(2)), it cannot be said to be surprising that Parliament did not intend that such awards should be reduced by sums paid earlier to the injured party without obligation on him to apply them in any way, and which in ordinary course would have been consumed by the date of any award. On this matter I have reached the same conclusion as was apparently reached by Lord Johnston in the case of Duffy v Lanarkshire Health Board 1998 S.C.L.R.1142.

In the whole circumstances I shall sustain the pursuers' first plea-in-law, repel the defenders' first three pleas-in-law, pronounce decree for payment in favour of (a) the first pursuer as executrix dative of £85,524.97(of which £11,492.00 represents compensation for earnings lost during the relevant period), (b)  the first pursuer as an individual of £133,694.81, (c) the second pursuer of £5,241.66 and (d) the third pursuer of £5,241.66.