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Living mesothelioma claim: damages assessed in life, and more to follow after death

Andreou v S Booth Horrocks & Sons Limited
High Court (QBD)
13 January 2017

The recent decision of Judge Walden-Smith highlights the difficult task facing the judiciary in assessing the damages payable to a claimant unfortunate enough to have the terminal asbestos related disease mesothelioma.

Mr Andreou is one such claimant, who proceeded to trial and was able to recover damages under certain heads of claim and had an element of the damages claimed adjourned, to be assessed at a later date, following his death.

Dominic Collingwood looks at the issues in Andreou v S Booth Horrocks & Sons Limited (2017).

Living mesothelioma claims: background

It is worth considering at this point some background to mesothelioma claims brought during the claimant's lifetime, and winding the clock back about ten years to the 2006 High Court decision of the then Senior Master, Master Whittaker, in Boden v Crown House Maintenance Limited.

The Master decided that it was not an abuse of process to deal with liability and an immediate interim payment first, and then adjourn the assessment of damages until after the claimant had died, on the basis that the claim would become more valuable on a fatal basis.

In an action brought following the death of the original claimant, the damages for pain, suffering and loss of amenity and care, aids and appliances would be easier to assess. If there was a widow involved then there would be bereavement damages, the recovery of funeral expenses, and the dependency claim would be calculated on a more favourable basis to the estate than it would have been on the basis of a 'lost years claim' by a living claimant.

The irony is that initially the court did not easily recognise a 'lost years claim' made by a living claimant due to conflicting lines of authorities, thus compelling claimants to leave it to their estate to pursue such damages following death. In this respect a living claimant, whose injuries have reduced his life expectancy, can bring a claim for damages for loss of earnings in respect of the “lost years” from his working life caused by that reduction in his life expectancy following the decisions of the House of Lords in Pickett v British Rail Engineering Ltd (1978) and in Gammell v Wilson (1981).

Issues in Andreou

In the case of Andreou, the law appears to have been taken one step further. Cases in which the damages for certain elements might be complicated to assess or involve high levels of damages are highly likely to lead to a lack of agreement and the need for judicial determination. In this case, the judge could deal with certain elements very easily, and in fact those elements were agreed, including damages for pain and suffering (£90,000), past and future care (£20,000) and various small heads of travel and sundry costs.

The judge was faced with more difficult issues related to the upkeep of investment properties and of the claimant's own substantial property and land, adaptations made to the home by way of a lift (as opposed to a stairlift) and certain of the more minor elements. A number of items of future loss were also disputed including income and aids and equipment but the major dispute between the parties was the proper calculation for lost years. Given that the claim for loss of services during the lost years exceeded £200,000, and the cost of adapting the home to fit a lift exceeded £80,000, it is perhaps unsurprising that these claims were disputed.

The court was not assisted in the difficult task of assessing damages by the fact that it transpired the claimant himself was too ill to attend court and give evidence, and in addition some of the claims were not well presented in terms of documents and evidence in support of the figures claimed.

Those representing the defendant felt they were prejudiced by the claimant's absence. They also submitted that the elements of loss not properly evidenced should be dismissed in their entirety. That was a proposition not attractive to a trial judge when faced with the fact claimant had a life limiting illness. 

Findings

The judgment does contain a useful analysis of what is reasonable within the context of aids and appliances. The claim for £84,000 for the fitting of a lift in the claimant's property was indeed dismissed but the claimant was compensated to the extent of what would be reasonably expected to be installed, i.e. a stairlift at a cost of £6,000. At a more modest level, the claimant was awarded £1,000 for a reclining chair, but not the full cost of a significantly more expensive recliner that he had purchased.

With regard to the loss of services claim, the claimant sought damages of £203,673 in relation to food grown on his land, as well as maintenance, care and other services which but for his terminal disease he would have provided his wife.

£100,000 had been offered by the defendant, along with criticism of the claimant's evidence.

The defendant contended that because the court could not properly consider this aspect of the damages claim immediately, the claim should be dismissed. The judge, however, adjourned the issue until after the claimant's death.

The claimant also sought to recover a substantial sum for loss of income. Although the evidence in support of the claim for financial income during the lost years was again criticised by the defendants, the judge observed that it would not be right to criticise the claimant for defects in his evidence and went on to apply a pragmatic approach to assessing those losses. Despite uncertainty as to figures, and criticism of the claimant's evidence from the defendants, the court was able to assess the lost years' claim in terms of financial losses.

Comment

For those dealing with claims involving life limiting diseases, where does this leave things?

Boden appeared to open the way for those representing claimants to seek judgment and an interim payment, and then have the claim adjourned until after the death of the sufferer so that more beneficial level of damages could be recovered by the estate. This course of action has its own peculiar risks, however. The claimant may secure judgment, and an interim payment, but the post mortem evidence could bring causation into doubt or, alternatively, reveal separate life limiting conditions, which would make the claim in death less valuable than in life. Indeed, the other aspect of the double jeopardy involved in such claim might be a scenario in which the incumbent widow dies before the sufferer of the disease.

Quite often, claimants' solicitors seek a premium on "living case" damages pointing out that the option exists to seek judgment and then a stay of proceedings pending death.

Theoretically, Andreou takes matters a step further. One might envisage claimant representatives seeking to recover certain heads of loss and  damage, which it would be  advantageous to deal with immediately, and then having the claim adjourned, or stayed, so that other damages, assessed at a higher level post-death, being dealt with later. A stark example would be the future services claim which in a living claimant's case would be limited to the point of their expected death but is assessed in a fatal damages claim having regard to the expected life of the sufferer, but for the asbestos disease. 

Contact

For further information please contact Dominic Collingwood, Associate on 0113 261 6001 or at Dominic.Collingwood@dwf.law

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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