|
OUTER HOUSE, COURT OF SESSION
[2008] CSOH 118
|
|
PD1809/07
|
OPINION OF LORD WOOLMAN
in the cause
THOMAS RENFREW
Pursuer;
against
LITHGOWS LIMITED
AND OTHERS
Defenders:
________________
|
Pursuer: Maguire
and Marshall, Solicitor Advocates;
Thompsons
First
and Second Defenders: McGregor;
Simpson & Marwick
19 August 2008
Introduction
[1] Mr Renfrew formerly worked
in shipyards as a painter. He was
employed by the first defenders between about 1959 and 1969 and by
the second defenders between about 1970 and 1973. During those periods he was exposed to
asbestos dust. In consequence he has
developed mesothelioma, which was first diagnosed in 2007. In this action Mr Renfrew seeks
compensation for personal injury in respect of the disease. The defenders admit liability to make
reparation to him. Accordingly, the
issue is one of quantification. The
pursuer is now sixty three years old. It
is probable that he will die of the disease by the end of 2008. In assessing the value of the claim, the
central question is how long he would have lived in the absence of that
condition.
[2] Determining the likely life expectancy
of the pursuer is not straightforward. It
is complicated by the fact that he also suffers from vascular disease. That condition affects the blood circulation
to his lower legs and limits his mobility.
It has prevented him from working since 1989. The pursuer contends that his vascular
condition would not have affected his life expectancy. By contrast, the defenders maintain that it
would have significantly shortened his life.
Mesothelioma
[3] It
is convenient to begin by considering the evidence regarding the pursuer's
mesothelioma. About New Year 2007, Mr Renfrew
began feeling breathless. At the same time
he was concerned that he losing weight and looking gaunt. In early 2007 he consulted his GP. At that stage, he complained about
haemorrhoids and passing blood. He was
referred to Crosshouse Hospital, Kilmarnock, where he was admitted as an in-patient on 18 May 2007. On admission, the
staff observed that he was breathing at twice the normal rate and that the
movement of the right side of his chest was impaired.
[4] Various investigations were carried out,
including an ultra-sound scan, a CT scan and a pleural tap which disclosed that
the pursuer's right lung had collapsed. A
chest drain was inserted and over several days, over seven litres of fluid was
drained from his chest. Mr Renfrew
felt relieved once the fluid was drained.
But despite further treatment, his lung did not re-inflate and he
remained breathless. The medical staff
noted his history of smoking and of asbestos exposure and decided to determine
whether he had either lung cancer or mesothelioma. On 25 May 2007, Mr Renfrew was transferred to Hairmyres
Hospital, East Kilbride for further investigations.
[5] At Hairmyres a biopsy was carried out
under general anaesthetic. The procedure
involved several incisions being made in the right side of his chest. Following the biopsy, he suffered acute pain
for about two weeks and required to use morphine for pain control. He also developed surgical emphysema in his
chest, neck and face, which was treated by means of the insertion of venflon
needles. On 10 June 2007, Mr Renfrew was told that a provisional diagnosis of
mesothelioma had been made and the nature of the disease was explained to him. He was discharged home on 19 June 2007.
[6] Expert testimony about the development
and prognosis of the pursuer's chest disease was given by Dr Elliott,
consultant physician. He has a special
interest in respiratory medicine and has encountered many patients with
mesothelioma over this thirty year career.
His evidence was unchallenged by the defenders. Dr Elliott stated that mesothelioma is a
malignant tumour which can affect the lining either of the lung or of the
abdominal cavity. Normally it only
affects one lung. It usually starts in a
small area and then spreads rapidly. The
tumour encases the lung like rigid orange peel, impeding its movement.
[7] As the tumour progresses, the patient's
general health declines. The most common
symptom is breathlessness. That occurs
because the tumour inhibits the absorption of the naturally occurring fluid. The fluid then accumulates in the chest cavity,
greatly reducing the amount of air which can enter the affected lung. Initially, surgical drainage will relieve the
patient's symptoms. As the tumour
develops, further drainage becomes impracticable.
[8] There are other symptoms typically
associated with mesothelioma. First,
patients lose weight. It is common for
them to lose ten to twenty per cent of their body weight. In the later stages they are often extremely
frail. Secondly, pain may affect the
whole or part of the patient's chest. This
occurs because the tumour infiltrates the inter-costal nerves. The pain is dull, persistent and notoriously
difficult to control. Thirdly, the
disease may result in adverse psychological effects. Some patients come to terms with the
situation. Others experience a great
deal of anguish and even mental ill health.
[9] Dr Elliott prepared two reports
dated 28 July 2007 and 8 April 2008. At the time of the
first report, Dr Elliott considered that Mr Renfrew was in reasonably
good health, although there was markedly reduced expansion of the right side of
the chest and he suffered from breathlessness.
By means of percussion, Dr Elliott confirmed that the right lung
was in an abnormal state. He formed the
view that treatment by way of chemotherapy or surgery was not appropriate.
[10] At the time of his first examination, Dr Elliott
estimated that the pursuer would have a further 18 months to live. That period was based on his observation of
previous patients with mesothelioma in a similar condition to the pursuer. At the proof, he stated that in his view, Mr Renfrew
was likely to die between September and December 2008. Both parties accepted Dr Elliott's
prognosis in calculating the value of the claim.
The History of the Pursuer's Vascular Disease
[11] Mr Renfrew
was a regular smoker from an early age.
He first began to experience problems with his legs in the late 1980s. when he was in his early forties. After walking about thirty to forty yards, he
developed severe pain in his right calf.
The further he went, the more painful his leg became. He said that his calf felt as if it was going
to burst. He required to stop and shake
his leg to restore the circulation, before starting to walk again. In 1989 he attended his general
practitioner, who referred him to Ballochmyle Hospital, Ayrshire.
[12] At the hospital he was examined by Mr Stewart,
consultant surgeon, who arranged for a number of tests to be carried out. In March 1990, Mr Stewart concluded
that the pursuer was suffering from vascular disease. In particular, he made a diagnosis of
Buerger's disease, a condition that affects small blood vessels and is
specifically linked to a history of smoking.
As, however, the problem was stable and Mr Renfrew had given up
smoking, Mr Stewart decided that there was no need for treatment. He therefore discharged the pursuer from the
clinic with no follow up appointments.
[13] During the course of the following decade,
the pursuer did not require treatment for his vascular condition. He restarted smoking cigarettes, however, in
about 1999. Since then he has had
several vascular problems requiring treatment.
In 2000 he had an infection in his left little toe and the sole of
his left foot. Dr Stewart arranged
for the foot to be bandaged to keep it clean.
The infection cleared up after about a year. Subsequently, the pursuer's feet have been
looked after by a chiropodist and he has worn special shoes.
[14] In February 2001 Mr Renfrew was
again referred to Mr Stewart because his left little toe showed signs of
ulceration and infection. He developed
necrotic tissue on the toe and cellulitis for which he required pain control. The injuries were slow to heal because of the
poor blood supply to both the pursuer's legs.
In June 2001 he received an iloprost infusion to boost his
circulation. That treatment helps the
blood vessels to expand and reduces the formation of clots. In November 2001 Mr Renfrew was
prescribed Amitriptyline which acts as an anxiolytic, as it removes the
conscious awareness of pain. It is also
a recognised anti-depressant.
[15] In June 2005 Mr Renfrew
contracted an infection in his left big toe.
He was treated with antibiotics by his GP and again referred to Dr Stewart. Tests disclosed relatively poor circulation
in his left leg. By November 2005
the injury had healed and since then, the pursuer has not required further
treatment in respect of his vascular condition.
The Expert Evidence
[16] Three
eminent vascular surgeons testified in this action. The pursuer led the evidence of Mr Drury,
a consultant general surgeon in Glasgow, who examined the pursuer on 19 May 2008. The pursuer also
led the evidence of Mr McMillan, a consultant surgeon at Ayr Hospital. He took over
responsibility for the pursuer's treatment when Mr Stewart went on long
term sick leave. In fact, however, Mr McMillan
had not seen the pursuer prior to the commencement of this litigation. He saw him at his outpatient clinic on 11 April 2008 and 7 May 2008
at the request of the pursuer's solicitors.
In my view, his evidence can be treated on the same basis as that of an
expert. The defenders led the evidence
of Mr Proud, who retired from NHS practice in 2000, but continues to
undertake medico-legal work. He examined
Mr Renfrew on 28 March 2008 at the Nuffield
Hospital in Glasgow.
Peripheral Vascular Disease
[17] All
three experts agreed that the pursuer had suffered from vascular disease for a
considerable period. They used different
expressions "significant arterial disease" (Mr McMillan); and "evidence of
extensive atherosclerosis" (Mr Proud).
Mr Drury stated that on a continuum with a healthy person without
vascular disease at one end and someone with serious disease at the other, his
opinion was that the pursuer was "seventy five per cent along the way".
[18] Vascular disease is mainly caused by the hardening of the
arteries (atherosclerosis), due to a thickening of the artery lining
from fatty deposits or plaques (atheroma).
Where the disease does not involve the heart or brain, as in the
pursuer's case, it is called peripheral vascular disease ("PVD"). The
principal factors that influence its development are: genetic inheritance, smoking, diabetes,
obesity, high blood pressure and cholesterol.
The disease compromises the integrity of the artery. Normally the vessel is soft and compliant. With PVD it becomes calcified and rigid. That may result in occlusion of the vessel,
or an aneurysm. Patients often develop
collateral circulation to deal with the problems caused by PVD. A scan taken in May 2008 shows just such
a process has occurred in both of the pursuer's legs.
Intermittent Claudication
[19] The
experts also agreed that the main symptom of PVD which had led the pursuer to
seek medical treatment in 1989 and which has since persisted is
"intermittent claudication". The term "claudication"
derives from the Latin verb claudicare "to limp". Patients with the condition limp to a stop after walking a short distance because of
pain. That occurs because of the build
up of the chemical by‑products of exercise and by the lack of oxygen
caused by poor circulation. When the
person stops exercising, the blood is able to restore function and the pain
goes away. Typically, the patient
repeats this pattern several times when walking any distance.
Buerger's disease
[20] The
experts were less clear-cut on the question of whether or not the pursuer
suffered from Buerger's disease, which is the condition diagnosed by Mr Stewart
in 1990. That disease affects the
smaller vessels that take blood from the major vessels to the tissues. It is typically found in the leg below knee
level, particularly around the ankles, but it can also affect the fingers and
hands. Buerger's disease is an unusual
condition and usually affects male smokers aged about 35 years. One study in the United States suggests that there are only 8 to 10 cases
per 100,000 of population. A
diagnosis cannot be made in the absence of a smoking history. The precise mechanism for the disease is not
known, but the wall of the artery becomes inflamed and thickens. Clotting further constricts the flow of blood
and the lumen of the vessel becomes occluded.
The disease is therefore not reversible.
Patients who stop smoking can arrest its progress, but if they begin to
smoke again the progress of the disease tends to accelerate.
[21] The definitive tests for Buerger's Disease
involve looking under a microscope at a sample of artery taken by means of
biopsy and conducting a specific series of blood tests. These tests have not been carried out in
relation to the pursuer. Both Mr Drury
and Mr McMillan therefore reserved their position on whether a firm
diagnosis could be made. They were,
however, prepared to accept that it was a reasonable conclusion. Mr Proud was definite in his opinion. He thought that the pursuer does suffer from
both Buerger's disease and conventional vascular disease, each condition being
related to his history of smoking.
[22] In arriving at their opinion about the
pursuer's prognosis, each of the experts was prepared to proceed on the basis
that he suffered from a serious vascular condition. Accordingly, it is unnecessary to make a
finding on the presence of Buerger's disease.
Critical Limb Ischaemia
[23] The
question upon which the experts did materially differ was whether or not the
pursuer suffered from "critical limb ischaemia" ("CLI"). The answer to that question affects the
pursuer's likely life expectancy. CLI
occurs where the restriction on the blood supply caused by PVD threatens the
continued existence of an arm or leg. In 1991
CLI was defined in a European consensus document as follows:
"persistently
recurring rest pain requiring regular analgesia for more than two weeks, or
ulceration or gangrene at the foot; plus an ankle systolic pressure less
than 50mmHg, or absent peripheral pulses in diabetics."
[24] All three experts agreed that these
criteria provided helpful guidelines to the clinician. But they also stressed the importance of
listening to the patient's own account of the symptoms and examining the limb
in question. Put broadly, they would ask
themselves a number of questions:
(a) is the limb well nourished? (b) is there tissue loss? (c) are there blocked pulses? A decision would be informed by the answers to
those questions and by the results of appropriate tests. In essence, the surgeon enquires whether the
blood supply is so poor that the limb is not going to survive. If possible, an attempt would be made to treat
the condition using conservative treatment, such as medication and painkillers. Vein bypasses would also be considered. Amputation was a measure of last resort and
would only be contemplated if the limb could not be saved. It would be considered if the patient was
suffering from intractable pain which could not be relieved.
Rest Pain
[25] Returning
to the 1991 definition, the first factor mentioned is "rest pain". As atherosclerosis progresses and blockage
becomes more severe, symptoms may progress beyond claudication. Pain may occur in the feet even when at rest. This pain, known as rest pain, occurs because the arteries
of the leg can no longer deliver adequate blood flow to the feet, even at rest. It is a marker of end stage disease. Exercise usually makes the condition worse. Rest pain generally worsens when the legs are
elevated. This happens lying in bed at
night, as the feet tend to be raised in comparison with the pelvis. Relief from the pain may occur only when the
feet are dangled over the edge of the bed (i.e. dependent). Mr Drury said that some patients find
rest pain so intense that they feel doomed.
They describe it as like having one's foot on a hot stove and being
unable to take it off. It is common for
people with rest pain to be scared to go to bed because of the pain they
experience. They prefer to sleep either
in a chair or a lounger.
[26] Whether or not the pursuer suffers from
rest pain is a matter of dispute. He
himself testified that after his foot was bandaged in 2000, he developed
the habit of kicking off his blankets and putting his feet at the bottom of the
bed, just at the edge of the mattress. He
said that he continues to sleep in that position. He gave a similar account to both Mr Drury
and Mr McMillan. They said that
they had gone into the matter carefully with him and were clear about what he
had told them. In court, Mr McMillan
demonstrated using his hands to show that the pursuer slept with his feet at
the very edge of the bed, not over its side.
[27] Mr Proud, however, reported a
different account from the pursuer:
"Mr Renfrew
has problems sleeping. He is able to go
to bed at night but he needs to have the feet hanging out of the bed, otherwise
he develops pain and has to get up for a while to walk around before the pain
resolves and then he can get back into bed, only for it to occur again. Sleeping with the feet dependent assists in
preventing the symptoms. The description
of this pain is 'rest pain'. The
symptoms of rest pain are mainly in the right foot."
(para. 9)
When
queried about this matter in evidence, Mr Proud said that as it was of
significance, he had listened attentively and had a firm recollection of what
the pursuer had told him. In cross
examination, Mr Proud accepted (a) that if the pursuer slept with his
feet on the bed, that would not be rest pain; and (b) that it was highly
unlikely Mr Renfrew could have had rest pain since 2001, when he was
first prescribed amitriptyline.
[28] It is difficult to explain the discrepancy
between the accounts given to the experts.
It may be that some degree of semantic confusion arose between the
pursuer and Mr Proud, but that is speculation. I formed the view that the pursuer was a
credible and reliable witness. Given
that he had given three consistent and one anomalous accounts, in my view on a
balance of probabilities he did not sleep with his feet dependent. Accordingly, he did not suffer from rest pain.
[29] A number of factors were relied upon by Mr Drury
and Mr McMillan. First, the pursuer
does not suffer from incessant pain which cannot be relieved. He continues to be able to exercise around
the house and climb stairs. In the
course of his examination by Mr Drury, he was able to walk 77 paces
and climb 22 steps of a staircase.
He walked from Waverley Station to his hotel
in Princes Street before giving evidence at the proof, although he had to
pause twice on that journey. Secondly, he
is not prevented from taking naps by reason of pain in his legs or feet. Indeed as his mesothelioma has progressed, he
has been napping more often. This would
be unlikely if he suffered from rest pain.
Thirdly, his PVD has remained in a steady state for a number of years. The vascular problems discussed above
resolved without surgical intervention. He
has not required medical treatment for his vascular condition for over two
years and Mr McMillan has no plans to treat him. In my view, these factors confirm that Mr Renfrew
does not suffer from rest pain.
Analgesia
[30] Returning
to the 1991 definition, it also requires that a patient with rest pain should
have "regular analgesia for more than two weeks, or ulceration or gangrene at
the foot". Although not mentioned within
the definition, it is common for opiates to be prescribed, because of the severe
nature of the pain. In this case, the
pursuer has never been prescribed opiates for relief of his foot pain. Since 2001 he has been prescribed
amitriptyline, but I accepted the evidence that that is for neuropathic, rather
than ischaemic pain. Mr Renfrew is
not currently suffering from ulceration or gangrene of either foot.
Pressures & Pulses
[31] Mr Proud
stated that the readings on 11 April 2008 are pathologically low and cannot be explained other than
by disease. However, he accepted that none
of the Doppler pressure readings taken in 2008 show an ankle systolic
pressure of below 50mmHg. It
follows that this criterion within the definition is likewise not met. Further, Mr Drury palpated the popliteal
pulse, while Mr McMillan felt strong pulses at the groin and at the knee
level in each leg. Although the pursuer
is not diabetic, the experts agreed that this was an important clinical sign. Mr Proud's position was that even if the
popliteal pulses were palpable (which he was unable to do), it did not alter
his opinion of the existence of more serious disease. The existence of claudication indicated occlusion
of the popliteal artery.
Does the Pursuer suffer from Critical Limb
Ischaemia?
[32] In
my view, looking at the criteria contained within the definition both
individually and collectively, it is not established that the pursuer has CLI. As Mr McMillan put it, the concrete
evidence is of heavy disease in the tibial vessels for almost 20 years,
but this is something that can be lived with.
His own examinations of Mr Renfrew gave him no cause for concern. He stressed the absence of symptoms as
reported to him on both occasions and in general the mild nature of the
symptoms over a period of many years.
Prognosis
[33] The
pursuer's life expectancy is less than an ordinary man of his age, because of
his history of smoking and his vascular disease. Taking into account the whole circumstances, Mr Drury
and Mr McMillan thought that the prognosis for the pursuer's life would
have been ten or perhaps fifteen years in the absence of mesothelioma. In cross examination, Mr Drury said that
if the pursuer continues to smoke, the lower estimate would be more accurate. Mr Proud's figure was eight to nine
years. He rejected the proposition that
the pursuer would live a further fifteen years.
But in cross examination he came close to accepting Mr Drury's
lower figure. He said "whether I could
be stretched to ten years I do not know - it's extremely difficult".
Summary
[34] In
my view, the proper conclusion to draw is that, but for the mesothelioma, on
the balance of probabilities Mr Renfrew would have a life expectancy of a
further ten years. There was almost a
coincidence on this point in the expert testimony.
HEADS OF CLAIM
Solatium
[35] Mr Maguire,
solicitor advocate for the pursuer, sought an award of £67,500 in respect
of solatium. He suggested that the starting point was McManus Executrix v Babcock
Energy Limited 1999 SC 569, where the court made an award of £50,000. He submitted that today the award would be £75,640
to take account of (a) inflation in accordance with the retail price index;
and (b) a ten per cent uplift which he said was appropriate under
reference to Heil v Rankin [2001] QB 272. Mr Maguire said that the approach in Heil to increase the level of awards of
general damages had been followed in Scotland
(Duthie v MacFish Ltd 2002 SLT 883; Wallace v Paterson [2001]
SLT 2002 563). He also referred to
a recent English case comparable on its facts with McManus, where the pursuer was awarded general damages of £67,000,
which at today's values yields a figure of £75,902 (Small v Circaprint Kemp & Kemp Damages K3-002.1).
[36] Mr Maguire accepted that McManus was at the higher end of the range of possible awards. He suggested that the lower end was roughly
about £55,000. That figure was
drawn from the uplifted amounts drawn from two Scottish cases where in each
case an award of £47,500 had been made (Ryan v Fairfield Rowan Ltd 29 July
2004 and Murray's Executrix v Greenock
Dockyard Company Ltd 2004 SLT 346).
[37] Mr Maguire also referred to the Judicial Studies
Guidelines for the Assessment of Damages in Personal Injury Cases, (8th edition
August 2006). It suggests a range
of figures from £47,850 to £74,300 and states:
"Mesothelioma causing severe pain
and impairment of both function and quality of life. This may be of the pleura (the lung lining)
or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. The duration of pain and suffering accounts
for variations within this bracket. For
periods of up to 18 months, awards in the bottom half of the bracket may
be more appropriate; for longer periods of four years or more, an award at the
top end."
He also asked me to take into
account the Northern Ireland Guidelines for the Assessment of General Damages
in Personal Injury Cases (3rd edition). While accepting that awards there are jury based,
he pointed out that the range there lies between £60,000 and £110,000
for general damages for mesothelioma, where death within a few years of trial is
inevitable. It was against that
background that Mr Maguire said that the appropriate figure under this
head was £67,500.
[38] Mr McGregor argued that solatium was
reasonably assessed at £40,000. In
his submission, the nature and severity of the pursuer's PVD had to be taken
into account. Looking at the evidence of
Mr Proud, there was a real likelihood that the pursuer's leg would require
to be amputated within the near future. In
that event, he would have a greatly increased risk of mortality. Mr McGregor urged me not to use other
cases as comparators. He emphasised that
the pursuer's quality of life was already materially affected by his vascular
condition and that influenced the figure under this head (Murray's Exrx v Greenock
Dockyard Co Ltd 2004 SLT 346).
[39] In my view the appropriate award in this case is £55,000. The disease
has caused pain and suffering to the pursuer.
He was shocked to be told that he had mesothelioma and distressed
to discover that it is not curable. Apart
from the pain associated with the biopsy at Hairmyers
Hospital, the progression of the disease has had a major and
adverse impact upon the quality of his life.
His symptoms of breathlessness,
lethargy and weight loss continue to worsen.
Since February 2008 he has experienced pain in his upper body. Against that, I
recognize that he has not suffered as much pain and discomfort as some
patients with the disease. Dr Elliott noted the pursuer's stoical nature and
thought that he was coping remarkably well.
That was also the impression which Mr Renfrew conveyed in the
witness box. He gave his evidence with a
degree of fortitude. In due
course, however, it is likely that he will be confined
to the house and latterly to bed, requiring total care. This final period may require to be spent in
hospital or in a hospice. I also factor into the equation the serious nature of the
pursuer's vascular condition. It would
have continued to impair the quality of his life and although he has been in a steady
state for a considerable period, I accept that there was a risk that he would
have developed CLI.
[40] I apportion three quarters of solatium to
the past. Interest on that figure at the rate of four per cent per annum from 1 April 2007
until 19 August 2008 adds £2,221 to this head of claim (£1,650 x 16.5 months).
Lost Years
[41] The
calculation of this figure turns on the pursuer's life expectancy in the
absence of mesothelioma. In their
submissions, the parties submitted figures of thirteen and three years respectively. For the reasons given above, in my view the
appropriate figure is ten years. It is agreed in the joint minute that the pursuer's patrimonial
loss will be £4,714 per annum from the date of his expected death until
his 65th birthday (7 October 2009) and £5,490 per annum thereafter. Dr Elliot estimates that Mr Renfrew's
ultimate demise will occur between September and December 2008. The midpoint date of 1 November 2008 accordingly provides the start point for the lost years'
calculation.
In terms of Table 28 of the Ogden Tables (6th edition) the multiplier for ten years
is 8.86.
[42] It follows that Mr Renfrew's loss to
his 65th birthday would be £4,321. applying the remainder of the
multiplier (7.86) to an annual loss of £5,490 produces a figure of £43,151. That brings out a total for the lost years of
£47,472.40.
Section 8 Services
[43] The
pursuer submitted that the relevant services under this head fell into three
categories (1) emotional and psychological support; (2) general
assistance, such as fetching, carrying, transport, hospital visits, medical
appointments, and making meals; and (3) the intense period of caring in
the months immediately prior to his death.
[44] From about 1 April 2007, Mrs Renfrew has provided the pursuer with emotional
and psychological support. He said that
he depended greatly upon her. She helped
him when he received the news and has supported him in his periods of
disappointment and depression since then.
Apart from travelling to and from hospital, she has also attended to his
practical needs. She gets him up in the
morning and always accompanies him when he leaves home. Mr Maguire submitted that against that
background, an appropriate figure for the services rendered to the pursuer by his
spouse and family would be £320 per week from April 2007 until
October 2008 and £580 per week for the final two months of his life.
[45] Mr McGregor submitted out that the
pursuer has not required much in the way of services, other than during his
periods in hospitals. However, he recognised
that a claim under this head included provision for "emotional and
psychological support" (Farrelly v Yarrow Shipbuilders Ltd 1994
SLT 1349). He suggested that the
pursuer should be awarded a weekly sum of £75 from April 2007, with
the exception of the stay in hospital when a weekly sum of £150 would be
appropriate. To date, that produced a
past loss of approximately £4,500 with interest of £190. In relation to future services, he submitted as
the level of care and attention for Mr Renfrew increased, the sum of £100
per week should be payable between the end of May and the end of August 2008. Thereafter to 1 November 2008, a weekly rate of £200.
This produces a future Section 8 claim of £3,058.
[46] In my view, the award should reflect the
fact that Mrs Renfrew continued to work for some time after the diagnosis
of the disease. It should also recognise
that more intense care is required as matters progress. I regard the figures suggested by Mr Maguire
as too high. Accordingly, the award in
respect of Section 8 services is as follows:
1 April 2007 to 31 May 2008
56 weeks at £150
per week £ 8,400
Interest (4% x
13 months) £364
1 June 2008 to October 2008
20 weeks at £250
per week £5,000
Interest (4% x 2.5 months) £108.33
November and December 2008
8 weeks at £350 per week £2,800
£16,672.33
Section 9 Services
[47] The
pursuer is now sixty three years old. He
and his wife live at 77 Clyde Terrace, Ardrossan together with his
father-in-law and his sister-in-law. Mr and
Mrs Renfrew moved there after her mother died in 2005. Her father is eighty five years old and has
Parkinson's Disease. Her sister has
Down's Syndrome. Mrs Renfrew is her
sister's guardian and looks after her financial affairs. Mrs Renfrew has always carried out all
of the domestic tasks in the household. Until
recently she worked five days a week between 8.30am and 3.30pm.
[48] Both the pursuer's in-laws require a
degree of care and supervision. The
family prefer that there is no social work involvement. Before he developed mesothelioma, the pursuer
gave some assistance with that care. On
the days when his wife was working, Mr Renfrew made sure that his
father-in-law took his medication and would make him soup or sandwiches for his
lunch. He also kept an eye on his sister‑in-law,
making sure she got out to her work three days a week and also being there for
her when she gets home in the afternoon about an hour before Mrs Renfrew. Two or three days a week, he helped his
father-in-law to get up, wash, shave, dress and have breakfast. Mr Maguire submitted that these services
should be valued at £180 per week and that the matter should be approached
on the basis of a multiplier, yielding a total of £54,000 under this head.
[49] Mr McGregor maintained that in
evidence, the pursuer had acknowledged that prior to the onset of his
condition, he did not assist his wife with shopping, dishes and hoovering. With regard to his sister-in-law, his evidence
was to the effect that she was left to her own devices and that she was the
responsibility of his wife. Accordingly,
there is no valid claim in respect of these parts of the claim. In relation to his father‑in-law, Mr McGregor
said that in the absence of detailed knowledge about his medical condition, it
is impossible to calculate this head of claim.
He invited the court to award a lump sum of £2,500 for future
services.
[50] In my view there is a great deal of force
in the defenders' submission. I have
therefore decided that it is appropriate in the circumstances of this case to
make a lump sum award. In my view, the
figure of £5,000 properly reflects the services actually provided by the
pursuer including the need not to leave his sister‑in-law unattended.
Aids and Equipment
[51] The
solicitor advocate for the pursuer submitted that there were a number of items
of expenditure which were necessitated by the pursuer's disease. The defenders contested the provision of a electric
buggy on the basis that Mrs Renfrew always accompanied him and drove him
where necessary. Mr McGregor
suggested that a figure of £250 for the hire of a motorised wheelchair
would be appropriate. He also disputed
any need to make improvements to the walkway and entrance of the pursuer's
house, again on the basis that he only goes out when accompanied. In my view, the defenders are correct in
their submission regarding the buggy, but otherwise the pursuer is entitled to
the items in the Joint Minute of Admissions, where the following figures were
agreed:
Improvements to the house entrance £2,150
Adjustable chair £850
Adjustable bed £760
Hire of motorised wheelchair £250
£4,010
Conclusion
[52] The
total of the individual heads of claim is therefore:
Solatium £55,000.00
Interest £2,221.00
Lost Years £47,472.40
Section 8 £16,672.33
Section 9 £5,000.00
Aids and equipment £4,010.00
Total £130,375.73
Mr Renfrew
has received payment of £25,046 in respect of the Pneumoconiosis etc
(Workers Compensation) Act 1979. He
has also received the sum of £7,500 from the Fourth Defenders. In those circumstances, the award net of
these sums is £97,829.73. I was
informed during the course of submissions that interim payments totalling £47,000
have been made to the pursuer, but these fall to be dealt with by parties.
