Oh Flower of Scotland… Haggerty-Garton v ICI [2021] EWHC 2924 (QB)

On 3 November 2021 the newly appointed Ritchie J handed down his judgment in Haggerty-Garton v ICI [2021] EWHC 2924 (QB), a mesothelioma case brought in the High Court but, pursuant to a consent order agreed between the First Claimant and the Defendant, subject to Scottish law. The Claimant was the young widow of David Haggerty, who had been exposed to asbestos in the course of employment at the Defendant’s Ardeer factory in Scotland in the early 1970s and had died of mesothelioma as a result in January 2019. The Claimant sought damages under Scottish law for herself and for her three sons, the Deceased’s stepsons. Liability and causation were not in issue and, by agreement, only three heads of damage remained in issue: solatium, loss of society and loss of services.

A link to the judgment can be found here. Philip Turton of Ropewalk Chambers represented the Defendant.

By an order of Linden J, two days before trial, five further Claimants were added to the proceedings, respectively the deceased’s sisters, daughters and grand-daughter, each of whom, under the Damages (Scotland) Act 2011, maintained a claim for loss of society under section 4(3)(b). These further claims then settled before trial and the deceased’s blood relatives played no part in it. The agreed awards were as follows: Deceased’s two daughters: £50,000 each; Deceased’s two sisters: £28,000 each; Deceased’s granddaughter: £18,000.

The Deceased, who was 63 at death, had met the Claimant, then aged 35, just before his diagnosis and married her afterwards, six months before his death. Two days before he died, he executed a will in her favour, leaving tokens to other family members. The Claimant had three sons, to different fathers, aged 21, 18 and 12 by the date of trial. The father of the youngest remained involved in his upbringing but the others had been absent from birth. The boys had first met the deceased during 2017, and so had known him for between 18 months and two years by the time he died. In the Claimant’s evidence, set out at some length in her witness statement, each of the boys had developed a strong relationship with the deceased before he died and had been of great assistance in caring for him in his final months. She, in her turn, had been devoted to him. The deceased, although originally a painter and decorator, had not worked for over 30 years, having retired in the early 1990s because of a neck problem. Later correspondence from his GP to the Department of Work and Pensions emphasised that discussion of proposed steps to return him to work might trigger an anxiety attack or cause depression. He was diagnosed with a fatty liver in 2014, and a year later was recorded to be drinking 60 units of alcohol a week. Nonetheless, in the Claimant’s evidence, he had coached a local football team and performed DIY and decorating jobs for her around the house, albeit no longer at a level reflecting a professional standard.

In his judgment, the Judge found that the Claimant had offered a “full insight” into the deceased. He found the Claimant’s track record to be no guide to the future of the relationship and found as a fact that the marriage would have endured, that there was a genuine dependency on the deceased’s adopted “house-husband” role and that, in the short time available to them, each of the boys had forged a “strong and warm bond” with the deceased which would have lasted into adulthood and beyond.

The deceased survived 12 months from first symptoms and underwent thorascopy followed by six cycles of chemotherapy. The Claimant’s evidence was of a very difficult final three months, when he was nursed tirelessly by herself and her sons. He died, just after Christmas, in the first days of January 2019.

The Judge awarded £97,250 for solatium (the Scottish equivalent of general damages for pain, suffering and loss of amenity). For loss of society he awarded the Claimant £115,000, the two older sons, £40,000 each, and the youngest, who lived with his biological father, £35,000.

Of interest, in relation to the approach to loss of services, the Judge rejected the Claimant’s reliance upon the “2016 Household Satellite account on household service work done throughout the UK”, published by the Office of National Statistics, which he found unclear in its relevance, but took account of hourly rates for comparable services and other awards in fatal cases, awarding £52,390 for future loss under this head on a diminishing basis with age.