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Haggerty v ICI: Trial judge allows Scots' law damages in mesothelioma claim brought in England

Dushal Mehta
03/11/2021
In a landmark trial at the High Court this week, Mr Justice Ritchie gave judgment based on Scots law for the family of a man who died from asbestos cancer contracted while employed at the ICI factory in Ardeer, Scotland in the 1970s.

The ICI factory manufactured explosives and it is accepted that while David Haggerty worked for the company, he was required to handle asbestos without adequate warning or protection.

Mr Haggerty was diagnosed with mesothelioma in the summer of 2018 and died in January 2019. He met his future wife, Charmaine Haggerty, in 2015. Mrs Haggerty had three children from previous relationships and Mr Haggerty had two. Mr Haggerty became a step-father to Mrs Haggerty's children.

As the illness progressed, Mrs Haggerty looked after her husband at home as he became increasingly unwell and later died.  She gave up her job as a teacher to care for her husband.

Although the defendant originally denied liability, it later accepted that Mr Haggerty had been exposed to asbestos at the factory. Dushal Mehta progressed a claim on Mrs Haggerty's behalf and on behalf of her three children. Two days before the trial additional family members joined Charmaine's claim for damages. Mr Haggerty's two children, his two sisters and one grandchild for the loss of society award permitted by Scots law but not English law.

Dushal and Counsel John-Paul Swoboda argued the claim should be based on Scots law even though the claimants reside in England. The defendant originally objected to the application of Scots law to this claim brought in England. However, days before the trial on this issue the Defendant conceded that Scots law would apply to this case. The case progressed to a trial on quantum which took place last week.

In such cases, Scots law allows an award for loss of society and also allows extended family members to claim for their loss, unlike in English law. There is no equivalent in the Fatal Accidents Act. Under Scots law a loss of society award can be claimed on behalf of a wide range of family members to include as in this case, adult daughters, sisters, grandchildren and step-children. Charmaine was able to recover a loss of society award of £115,000 and her children recovered substantial sums also. These claims could not have been advanced had English law applied to the assessment of damages.

A complicating factor in the case was that for claims dating back to the 70s the common law rule was that whille Scots law determined the heads of loss, English law determined the assessment of those heads of loss. However the Claimant’s approach to the assessment was agreed by the Defendant which meant Scottish case law to be taken into account in determining ‘loss of society awards’.

Despite the fact that Mr and Mrs Haggerty had not been together for long, the judge said he accepted they would likely have been together for the rest of their lives had Mr Haggerty not contracted mesothelioma. He had lost over 20 years because of the illness. Despite the defendant arguing for a much lower sum at the trial, the judge awarded Mrs Haggerty and her children over £600,000 for their losses. Further awards had been agreed one day before trial for the other claimants (the extended family members).

Dushal said this was the first time such a judgment under Scots law has been allowed in the English courts in a mesothelioma case.

Read the Judgment here.

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