There are interesting observations in relation to several aspects of Fatal Accident damages in the judgment of Mr Justice Garnham in Mosson -v- Spousal (London) Ltd [2015] EWHC 53 (QB).
KEY POINTS
- An allegation of contributory negligence on the part of the deceased could not be sustained in the total absence of evidence.
- The costs of a wake, memorial bench and mourning clothes were not recoverable as funeral expenses.
- The costs of probate were not recoverable.
- “Subrogated earnings” were recoverable from the defendant and were to be repaid to the employer.
- The appropriate age to loss of financial dependency was 70.
- The claim for loss of services was not supported by evidence, however it was awarded at £1,500 a year.
- A claim for “loss of intangible benefits” was not recoverable in law.
THE CASE
Mr Mosson died of malignant mesothelioma in January 2014. Primary liabilty was admitted. There were arguments in relation to contributory negligence and the assessment of damages.
CONTRIBUTORY NEGLIGENCE
The defendant argued that Mr Mosson had been self-employed for a large part of the period of potential exposure. He was contributory negligent in failing to take steps to prevent or reduce exposure during that period.
This argument was rejected by the judge
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The burden of establishing contributory negligence is on the defendant. In order to discharge that burden they needed to establish first, that the claimant was self-employed at the material time; second that he was exposed to asbestos dust during that self-employment; third that that exposure occurred in circumstances amounting to a breach of duty by him and fourth that that exposure was causative of harm in the material sense.
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It was common ground between counsel that there is no single test of the relationship of employer and employee. I was referred to chapter seven of Clerk and Lindsell on Torts where three potential tests are discussed; the control test, the organisation test and the multiple test. Both counsel agreed that what Clerk and Lindsell call “the more modern approach“, namely the “multiple factor” approach, is the one I should adopt. The relevant matters point in different directions on the facts of this case.
The judge found that Mr Mosson had been self employed. However there was no evidence upon which he could make a finding of contributory negligence.
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In those circumstances it is my conclusion that during his period of self-employment with Stuarts the deceased was exposed to asbestos dust.
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There is, however, precious little evidence about the circumstances of that exposure. In my judgment that is crucial to the issue I have to decide.
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I was taken by Mr Steinberg to the Court of Appeal’s decision in Williams v University of Birmingham [2011] EWCA Civ 1242. In that case the University’s insurers admitted that Mr Williams “would have received some exposure to asbestos whilst carrying out experiments at the university“. At paragraph 35 Aikens LJ formulated the test for determining whether the University was in breach of duty as follows:
“Ought the University reasonably to have foreseen the risk of contracting mesothelioma arising from Mr William’s exposure to asbestos fibres by undertaking the speed of light experiment in the tunnel in the manner contemplated – and done in fact – to the extent of the University should (acting reasonably) have refused to allow the test to be done there, or taken further precautions or at least sought advice.“
“That brings me to the second important point. The understanding of asbestos – related diseases and the extent to which exposure to even very small quantities of asbestos fibres can have dire consequences has grown over the years. The question of what the University ought reasonably to have foreseen about the consequences of any exposure to asbestos fibres in the course of experiments in the tunnel and the reasonable conduct that the University ought to have adopted must be judged by reference to the state of knowledge and practice as at 1974.“
“The duty of care must be to take reasonable care (including measures if necessary) to ensure that Mr Williams was not exposed to a foreseeable risk of asbestos related injury. A reference to exposure ‘to a material increase in the risk of mesothelioma’ brings the test for causation in mesothelioma cases into the prior questions of the nature of the duty and what constitutes a breach of it. There is nothing in either Fairchild or S v G to suggest that either the House of Lords or the Supreme Court has altered the ‘breach of duty‘ test in mesothelioma cases so that a claimant only has to demonstrate that the defendant failed to take reasonable steps to ensure that the claimant or victim was not exposed to a ‘material increase in the risk of mesothelioma’.“
“But, assuming that the exposure was more than de minimis, it was, in my view, necessary to ask a further question. That is whether given the degree of actual exposure it ought to have been reasonably foreseeable to the University (with the knowledge a reasonable university should have had in 1974) that as a result Mr Williams would be likely to be exposed to the risk of personal injury in the form of contracting mesothelioma.“
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In other words in order to determine whether there has been a breach of duty it is necessary to have evidence of the degree of actual exposure. There is simply no such evidence in the present case and in those circumstances it seems to me that the defendant cannot satisfy the burden on them to show that the deceased was in breach of the duty he owed himself to take reasonable care to avoid the risk associated with exposure to asbestos.
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In those circumstances I reject the allegation that the deceased was guilty of contributory negligence.
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In Berol Badger v MOD [2005] EWHC 2941 Stanley Burnton J, when considering the proper approach to contributory negligence allegations held:
“Once contributory negligence has been established, the Court must take into account both the extent of the claimant’s responsibility for his injury and damage and the blame worthiness of his conduct as opposed to that of the defendant in deciding on the reduction in damages that is just and equitable.“
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Had I found the deceased guilty of contributory negligence, applying that approach would have been difficult in the extreme on the facts of this case. The complete absence of evidence as to the circumstances in which he was exposed to asbestos would have made it almost impossible to take account of the extent of his responsibility for his injuries or the blame worthiness of his conduct. The evidence as to how the defendant exposed the deceased to asbestos in 1963-4 is thin; the evidence as to what the deceased did to contribute to his exposure in the 1970s is almost non-existent.
GENERAL DAMAGES
The judge awarded £85,000.
FUNERAL EXPENSES
The judge adopted what has become the traditional stance on this topic. The costs of a wake; memorial bench and mourning clothing were not allowed.
Funeral Expenses
- The parties have been able to agree the majority of funeral expenses. The only items that remain in dispute are the costs of the wake, funeral attire and the purchase of a memorial bench. Mr Steinberg argues that “social obligations” arise as a result of the death and that the costs of meeting these items is properly recoverable.
- I disagree. As Mr Steinberg very properly pointed out, Bean J (as he then was) pointed out in Knauer v Ministry of Justice [2014] EWHC 2553 (QB) that, in the first instance decision in Gammell v Wilson [1982] AC 27, Mr Bennet Hytener QC, sitting as a deputy judge, disallowed the costs of a wake. As Bean J held “Mr Hytener’s decision has been regarded as good law ever since“. He was not prepared to depart from it and nor am I.
- The expenses claimed must be “reasonable in all circumstances“. In my view it is not reasonable to claim for the cost of the memorial bench or for clothing to be worn at the funeral. The cost of mourning clothes had been disallowed in Gammell v Wilson at first instance. In the Court of Appeal, a distinction was drawn between a headstone which marks the grave and is a legitimate funeral expense and a memorial which is not. That seems to me to apply a memorial bench.
PROBATE EXPENSES
The judge did not allow probate expenses
“Costs of Probate
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Mr Steinberg suggests that the £1,010 expended by the estate on probate is properly recoverable. Unlike funeral expenses, there is no reference to probate costs in the 1934 Act. I see no basis upon which such a claim could be read into the Act. I see no other potential basis for it and I disallow it.”
SUBROGATED EARNINGS
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The claimant claims £15,914.61 in respect of sick pay paid to the deceased during his life time by his former employers. Mr Steinberg says this is a subrogated claim on behalf of the employers and refers to an email dated 21 August 2013 indicating that they seek reimbursement.
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In Dennis v London Passenger Transport Board [1948] 1 All ER 779 Denning J (as he then was) was dealing with a case in which the Ministry of Pensions was not asserting a legal obligation to refund money which they had paid the claimant. He said:
“A wrongdoer is not to be allowed to reduce damages by the fact that other persons had made up to the plaintive his wages… In point of law, therefore, prima facie he should have been paid by the wrongdoer. As they had been made up to him by other people who expect to be repaid, I think it is proper that that sum should be included as damages, but subject to the direction of the amount paid to the plaintive by the Ministry of Pensions and the London County Council shall be paid to those bodies out of the sums recovered.“
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I respectfully agree. The defendant must pay the sums claimed and the claimant will hold those sums on trust for the former employers.
PAST DEPENDENCY
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The parties have agreed all the appropriate figures for the past loss of income dependency except the deceased’s likely retirement date.
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In both his witness statement and deposition the deceased maintained that, but for the mesothelioma, he would have worked until aged 70. There is documentary evidence that there was no contractual retirement age for the deceased and he would have been able to work as long as his health permitted. In fact, he retired in April 2013 at the age of 65 years and three months.
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It is right to observe that the deceased was suffering from other conditions at the time he developed mesothelioma. However, Dr Rudd says that there were “no other conditions present which would have been likely to prevent him working until the age of 70 as he stated as being his intention before he became ill as a result of mesothelioma“.
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What in my view is decisive of this issue is the evidence of the deceased’s determination to get back to work if he could. Dr Rudd notes that “on 22 July 2013 his doctor noted that he needed a certificate of unfitness to work. This was issued for one month as Mr Mosson said that he would like to try to get back to work if he was feeling better“. There is evidence in the medical reports that the deceased’s private pensions became payable when he was 70.
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In my view, it is plain the deceased had the ability to work on to age 70, was willing to do so, intended to do so and had the opportunity to do so. In my judgment it is likely he would only have retired at age 70. It follows that the loss of dependency calculations should be based on the assumption that the deceased would have worked to age 70 had it not been for the mesothelioma.
LOSS OF SERVICES
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The claimant claims for loss of services, including gardening and general home maintenance based on the likelihood he would have worked 10 hours per work for the rest of his life. She claims £5,000 per annum with a multiplier of 10.39. It is said that 10 hours a week is a reasonable estimate of the amount of time the deceased would have spent on such activities each week. It is said that he undertook work around the house and for his children including gardening, hoovering, DIY, decorating and shopping. It is pointed out that he was a caretaker by employment and was well able to maintain his house and home. References were made to the report of the nursing expert, Ms Wells, and it is she who suggests that 520 hours a year is the appropriate figure.
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In my judgment, this claim is excessive. There is no evidence as to the commercial cost of replacing the services referred to. Furthermore little allowance appears to have been taken of the fact that as Mr Mosson got older he would have been less and less able, regardless of the mesothelioma, to carry out DIY and maintenance work. The evidence of Ms Wells is, in my judgment, wholly insufficient to make good this claim; she is a nurse and professes no expertise either in the amount of time the services would have taken up or their likely cost if purchased commercially.
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Having said that, it is clear that the deceased did provide valuable services to his family and it is right that there is some allowance in respect of the value of those services. Doing the best I can, and considering the likely cost of having those services provided commercially, I would allow £1,500 per annum and allow a multiplier of five.
LOSS OF INTANGIBLE SERVICES
The interesting aspect of the judgment is the decision not to make any award for “intangible services”.
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The final disputed item of damages concerns what Mr Steinberg calls “loss of intangible services“. He says such an award would reflect “additional value and convenience in having someone who is willing and able to provide these services out of love and affection rather than bringing in outside help and contractors“.
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This claim is disputed on the basis that it is not a valid head of claim.
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I have already indicated that the claimant should be able to recover for loss of the services which her husband previously provided, including DIY and gardening services. Whilst I was critical of the lack of evidence going to the value of these services, I did my best to assess what the likely cost would be of replacing what had previously been done by the deceased. This final head of claim is, as I have described, a claim for compensation for the inconvenience for having to commission such services and use the damages I have allowed to purchase them.
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Mr Steinberg says that such claims are now “well established“. He refers to a number of authorities in which such claims have been allowed and in particular to the decision of Hamblen J (as he then was) in Beesley v New Century Group Ltd. At paragraph 79 of that judgment, Hamblen J said:
“79. The claimant submitted that this is an appropriate case for such an award, which is based on the premise that Mrs Beesley has not just lost domestic services, but on the extra value that is derived from having such help provided by a husband and friend; see Regan v Williamson [1976] 1 WLR 305. It was submitted that a reasonable award would be £3,000.
80. The defendant submitted that this was not a maintainable head of claim. It was contended that it was contrary to the principle that Fatal Accident Act damages are only awarded for financial or pecuniary loss. The statutory award for bereavement covers any non-financial loss.
81. However, it is clear that there have been a number of cases in which such awards have been made. In Regan v Williamson, which followed the Court of Appeal decision in Hay v Hughes [1975] QB 790, the dependency figure for the loss of the services of a mother was increased to reflect the benefit of the personal attention to a child’s upbringing which a mother provided and which could not be replaced by a housekeeper, nanny or child minder, although no separate award was made. However, in Mehmet v Perry [1977] 2 All ER 529 a separate award was made to the children and the approach extended to the husband’s claim and a separate award was made to him as well. Subsequent cases have followed this approach.
82. The defendant submitted that properly understood the authorities of Regan and Hay are only applicable to claims by children and then only to the extent of reflecting the loss in an increased multiplicand for the services dependency, not in a separate award.
83. In my judgment the principle of making awards for loss of intangible benefits is now well established – see Kemp and Kemp [29-052]. It reflects the fact that services may be provided by a mother, wife, father or husband over and above that which may be provided by a paid replacement. In principle there is no reason for differentiating between the position of children and spouses in connection with the availability of such awards.
84. In relation to services provided by a husband or father the position is summarised in Kemp and Kemp at p29074 as follows:
‘Awards of this kind have also been made to a widow or child for the loss of services provided by a deceased husband or father. There is no reason in principle why such awards should not be made where the services provided by a husband or father justify it on the facts. Such awards ought to be in proportion to the more conventional awards already noted for wives/mothers. This will mean that they will be lower in the average claim where the deceased husband/father was the family breadwinner.’
85. The present case is a good illustration of why it may be appropriate to make such an award to a widow. So, for example, there are considerable advantages in having jobs around the house and garden done by a husband at his own time and convenience rather than having to go out to find and choose commercial providers, and to have to work around the hours that suit them for the work in question.
86. I therefore consider that such an award can be made, that this is an appropriate case for such an award to be made and that the suitable figure is £2,000. “
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In Ghoorah v West Essex Clincial Commission Group and Others (2014) HH Judge Gore, sitting as a deputy judge of the High Court, apparently awarded £15,000 under this head of claim. I say ‘apparently’ because I have only a short Lawtel summary of his judgment.
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In Fleet v Fleet [2009] EWHC 3166 (QB) Mackay J considered this head of claim which he described as a claim for “special care“. He said that there “is no doubt that it is increasingly awarded in the form of modest sums in these cases” and referred to Hamblen J’s award in Beesley. He went on:
“Although in its origin it was an attempt by the Court to value the services of a mother or a father to a child over and above the commercial cost of replacing him or her, it has sometimes been extended to cases involving spouses. That should not be an automatic extension in my view. The features of this case that I think justifies an award is that Mrs Fleet was considerably older than her husband and would as the years have gone on needed more than usual care which I have doubt he would have been happy to provide and provided extremely well. I think £2,500 is appropriate to award under this head.“
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I have had careful regard to these previous cases, in particular to the reasoning of Hamblen J and Mackay J. I take on board the fact that the making of awards of this sort has become increasingly commonplace. However I regret to say that, for two reasons, I find myself in disagreement with the conclusions of the other judges of this Court to whom I have referred. I can see no proper jurisprudential foundation for this claim.
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First, damages for personal injuries are intended, so far as money can achieve it, to put the claimant in the position he or she would have been in had the tort not occurred. But that is an art not a science, especially in the case of claims for future loss. There can be no precise equivalence in money terms of every loss that flows from an injury or a death. The Court fixes on a sum, often by reference to commercial costs, but recognises that that is unlikely to be a precise reflection of all the future consequences of the event. In the case of claims for services, the award is the Court’s best estimate of the value, rather than the cost, of the services lost.
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I have already made an award in respect of the services the deceased would have provided his family had he not contracted mesothelioma. I have done so by seeking to estimate the cost of providing commercially what would otherwise have been provided by the deceased. Obtaining services commercially, rather than from a member of the family, has both advantages and disadvantages. The disadvantages are those to which Mr Steinberg refers. But since few individuals, even caretakers, possess all the skills of all trades people, there are also advantages in having work carried out commercially. The work can be provided by specialist contractors at times that are convenient to the claimant; it may be of a better quality; its provision does not necessarily detract from other activities the family may wish to carry out. The award I have already made recognises both the advantages and disadvantages of having services provided commercially rather than by the deceased.
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In my judgment, there is no room here for an additional award for the loss of intangible benefits over and above the claim for the lost services.
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Second, what the claimant seeks is further financial compensation for the inconvenience of having to pay someone to do what her husband would have done voluntarily. In other words, she seeks financial compensation for what is a non-financial loss consequent upon her husband’s death. That, it seems to me, is a claim of the sort which bereavement damages were intended to cover.
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Pursuant to the Fatal Accidents Act 1976, a claim may be made by a limited number of relatives for their bereavement suffered due to the death. The award is described in this way in the third edition of Personal Injury Schedules edited by William Latimer-Sayer and Langstaff J:
“A bereavement award is an oddity in the law of damages. The fundamental principle in personal injury claims is that the claimant should be compensated for his or her loss. Therefore a claimant needs to prove the loss, and an attempt to quantify it must be made. However, bereavement awards are subject to no such condition. Once the relative has proved he or she was within the specified class of claimant and that the defendant is liable, then an award is made. There is no need to prove any actual loss suffered by the relatives; the Court assumes certain people will inevitably be adversely affected by the death of a close relative. There is no right to seek to argue for any additional or higher sum in the event of extreme suffering. This may seem an arbitrary approach awarding damages, but the alternative has long been considered to be against public policy…“
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Bereavement takes many forms and has many consequences. Where the consequence can be valued in financial terms, they can be a separate head of claim. But where they cannot, in my judgment, they fall to be regarded as part of bereavement damages.
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In those circumstances the claim for intangible services is not a proper claim in law.
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Were a higher court to say that I was wrong about that, and that such an award could be made in principle, I would favour the approach of Mackay J over that of Hamblen J. In my view, it would be necessary to prove some circumstance out of the ordinary to justify an additional award. There is no such unusual circumstance here; the claimant is the spouse of the deceased, not his child and she and he were of a similar age.
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In those circumstances I would make no award under this head even if, in principle, it were to be decided that the head is one recognised by law.”
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