England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		THE ROYAL COURTS OF JUSTICE, STRAND, LONDON WC2A 2LL
		24 May 2007

Introduction

1. In August 2005, the Claimant Mr Raymond Shanks was diagnosed as having mesothelioma which, in these proceedings, he alleges was caused by negligent exposure to asbestos whilst he was employed as an electrician by the Defendants at their Wallsend Shipyard. On 8 November 2006, Master Whitaker entered judgment on liability for damages to be assessed. This is the reserved judgment from the hearing of the trial of issues of quantum.

Background

2. The Claimant was born on 22 January 1948. He left school at the age of 15, and joined the Defendants' pre-apprentice training school, going on to become an apprentice electrician. For 4 years from 1965, he worked on ships being constructed and fitted out at the Wallsend Shipyard, where he worked in close proximity to laggers and others working with asbestos. This was his only exposure to asbestos during his working life.
3. In 1970, Mr Shanks married his wife Kathleen, to whom he is still married. They had two children, Michael and Penny.
4. From 1972, Mr Shanks worked as an electrician for the Merchant Navy, a number of electrical contractors and on his own account, before immigrating with his wife and children to Adelaide, Australia in 1982. He immediately found work as an electrician, eventually taking on more supervisory and management work. However, in June 1987, Mrs Shanks' mother unfortunately fell ill and eventually died. Mr & Mrs Shanks returned to England for 18 months.
5. They returned to Australia in December 1988, when Mr Shanks set up his own electrical and instrumentation business (RKS Controls Pty Ltd, "RKS"). From that date, for whomever he worked, Mr Shanks operated as a contractor through that company. For a number of years he worked exclusively at the Adelaide Refinery, before contracting himself out as a Contract Manager. In 1998, he joined an electrical contractor ("United KG") as a Project Manager.
6. Whilst his family remained at home in Adelaide, Mr Shanks travelled to manage projects around Australia. In 2001, whilst working in Perth, Western Australia, his son Michael was diagnosed as having non-Hodgkin's lymphoma. He returned to Adelaide to support him, and his family: Michael had by then a wife and two children of his own. Michael died in September 2003.
7. Having returned from Perth, United KG appointed him to manage a project close to Perth which he did, with success. He was then asked to be part of a project management team in a joint venture between United KG and Aker Kvaerner ("AK"), to upgrade the instrument control systems at the Moomba Gas Plant. Indeed, Mr Shanks was recruited by Mr Ian Prescott of AK to become the Construction Manager for that project, and duly left United KG for AK. Mr Prescott has held a number of roles within the company, being Director Queensland at that time. He is currently Project Manager for a very major project in Western Australia with a contract value of A$2bn.
8. At the conclusion of the Moomba project, AK asked Mr Shanks to be Construction Manager for the Yabula Gas Project at the QNI Nickel Refinery in Townsville, Northern Queensland. Given the success of the Moomba project, Mr Shanks was a key person in AK obtaining the Yabula project and (in his own words) they "asked [him] what it would take to get [him] to Queensland and take on the project" (Statement 12 April 2006, Paragraph 40). I will come to the particulars of the deal struck - but Mr Shanks regarded it as a good one, with a generous benefits package. Mr Shanks was informed by AK that they had enough work in Northern Queensland to keep him busy for several years, and possibly through to retirement. It was clear from the evidence of Mr Prescott that Mr Shanks continued to impress, and be a valuable employee. For his own part, Mr Shanks was willing to work hard for good reward. He had in mind not only his family's standard of living and his own retirement, but also a promise he made to his son Michael to look after his son's children to which I shall return.

Mr Shanks' Illness

9. Mr Shanks moved to Townsville and began work on the Yabula project in April 2005.
10. At about that time, he began to feel unwell. He consulted his general practitioner on 16 April complaining of "breathlessness over the past two weeks" and he was referred to a hospital where he was given a somewhat ineffective pleural aspiration, and was treated with drugs as an outpatient. He required a further aspiration in June. On 1 August, he underwent a pleurectomy and pleurodesis at Townsville Hospital. Subsequent histopathological examination confirmed that he had developed malignant mesothelioma.
11. Following his operation, he was very ill, developing a post-surgical wound infection. He was able to do little for himself, and required assistance from his wife to wash, dress, shower, dry and dress himself, transfer from bed to chair and vice versa. He was unable to prepare any food for himself, or engage in any form of domestic chores, or drive.
12. He and his wife feared he had little time to live. Having gone through their son's cancer, they considered that they both required assistance and support from their family to enable them to cope with Mr Shanks' illness. In October 2005, when he was well enough to travel, they returned to England.
13. Mr Shanks began to recover from his operation, and, during early 2006, underwent intensive chemotherapy. This made him extremely unwell and he lost 2 stones during the course, but progressive CT scans showed that the therapy was being effective. As the result of treatment at the hands of - and the general care of - the Northern Centre for Cancer Treatment in Newcastle, for which he has nothing but praise, Mr Shanks symptomatically recovered to such an extent that from April 2006 he has enjoyed a stable and good quality of life. He is tired most of the time (and gets breathless and more tired on any exertion), and is very short of breath on climbing stairs or hurrying on level ground. He is able to walk slowly to the shops, a distance of 500yds. He is able to wash and dress himself, prepare drinks or snacks, and accompany his wife to the supermarket. His wife has to "fetch and carry" for him. He drives short distances in an automatic transmission car, but gets too tired after 15 mins or so. He has constant pain in his chest, both in the right lung area and in the areas of his post-operative scars. Usually, these pains are of a dull ache quality: sometimes they become severe and stabbing. He takes painkillers hourly, in addition to other medication in respect of various side effects of his main condition. He has a poor sleep pattern, waking early and being unable to get off to sleep again. However, given his condition, Dr A N Hughes (his oncologist) says "he continues to do extremely well and his quality of life is excellent" (letter dated 13 April 2007): and his condition has not significantly changed since April 2006.
14. When in January 2006 he was examined by his expert physician for the purposes of these proceedings (Dr R M Rudd), Mr Shanks was given a life expectancy of 18 months (i.e. July 2007). However, in the light of his reaction to treatment, Dr Hughes says (as at 13 April 2007):

"The prognosis is very difficult to predict in mesothelioma but I would hope his progress will continue for some time yet and would be hoping to get at least another year or so and possibly longer before running into problems"

On the basis of this opinion (uncontested by either party), Mr Shanks is likely to have a good quality life until April 2008, before a period of declining health. As Dr Hughes stresses, the course of that decline is uncertain, but on the basis of all the evidence (including that of Dr Rudd and Dr Hughes, and of Mr Shanks himself), in my judgment for the purposes of future loss it is likely that that period will be 6-12 months (say, 9 months). That would put Mr Shanks' life expectancy at early 2009.

General Damages

15. In "The Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases" (8th Edition), the range of damages for mesothelioma is given as £47,850 to £74,300 as at June 2006. Within this band, the guide says: "For periods of up to 18 months, awards in the bottom half of the bracket may be appropriate; for longer periods of four years or more, an award at the top end."
16. I was referred to two specific cases of asbestos-related mesothelioma, with extensive periods of symptoms. In Sandford v British Railways Board (1999) Kemp & Kemp K3-001, the claimant had a four year period of symptoms, of a particularly severe nature, including a large extending tumour causing especial distress and pain. He was awarded £58,000 (£76,900 current valuation). In Taylor v National Grid (2001) Kemp & Kemp K3-002, the 54 year old claimant suffered 4½ years of symptoms. Owen J awarded £65,000 (£72,500 current valuation).
17. As Dr Hughes indicates, the course of mesothelioma is difficult to predict, but, in assessing general damages:

(i) Mr Shanks has already had one serious operation, with an extended period of pain and disability.

(ii) He has been suffering from symptoms for two years. These symptoms are not severe. That level of symptomatology is likely to last another 12 months. He will suffer increasing symptoms and disability, until death. Unfortunately but inevitably by virtue of the condition, there will be a period of significant symptoms and severe incremental deficit in function.

(iii) He will have had the knowledge that he has contracted this appalling and inevitably fatal disease for about 4 years before death.

(iv) He was particularly fit and active before contracting this disease. He played squash, and enjoyed walking etc. He has been unable to play sport since March 2005, and can now only walk (in his own words) "at a snail's pace" for short distances.

(v) So far as the Judicial Studies Guidelines are concerned, Mr Shanks will suffer symptoms for a period of about 4 years, and so the award falls towards the top-end of the suggested band. However, for the majority of that period he will not suffer severe symptoms. Sandford is therefore a more serious case. In Taylor (a case more similar to Mr Shanks), the period is symptoms was slightly longer than the likely period in this case.

18. In the circumstances, the appropriate award for pain, suffering and loss of amenity is £70,000.

Special Damages: Introduction

19. I now turn to Mr Shanks' claim for special damages, as set out in his Amended Schedule of Loss dated April 2007. In relation to all my calculations, as ever, I give permission to apply. Throughout, I have used the conversion rate of A$1 to £0.4179.

Loss of Earnings

Average Hours Work

20. Mr Shanks said that, although hours varied depending upon the type of project and contract engaged upon, he worked between 2000-3000 hours per year. This evidence was supported by the following:

(i) When Mr Shanks was recruited by AK for the Moomba project, he was paid A$76 per hour. Although there was some uncertainty about whether some other rates in evidence were inclusive or exclusive of sales tax ("GST"), to which I will return, this figure was said by Mr Shanks to be net and I accept that. In the year to 30 June 2004, the only income of RSK (i.e. Mr Shanks) was from the Moomba project. The profit and loss account in RSK's accounts show the income to have been A$192,980. This figure appears to be exclusive of GST, which would otherwise figure in the counter-expenses. (The reference to GST liability in the balance sheet is not an indication that the income in the profit and loss account includes any element of GST.) At A$76 per hour, the total income therefore represents 2,539 hours for that year.

(ii) Mr Shanks' contractual expectation is that he will work 50 hours per week. In his letter of 23 December 2005, Mr Prescott indicated that the expected annual hours for a site-based Construction Manager were "approximately 2,000 or above, depending on the project requirements". In his statement, he said average hours could fluctuate between 2,000 and 3,000 (Statement 23 June 2006, Paragraph 9). In his oral evidence, Mr Prescott said that most in the industry "prefer to take A$s than holidays": and typically Construction Managers in the role Mr Prescott was performing at Yabula would work 50-70 hours per week, and on average 2,500 hours per year.

(iii) Mr Prescott said that he saw Mr Prescott having a long-term future with the company. I will touch upon this again when dealing with hourly rates, but Mr Prescott said that the construction industry in Australia was in boom on the back of the upsurge in the economies of China and other parts of Asia. Their clients are now planning projects through to 2014. After the Yabula project (due for completion in 2006), Mr Shanks had already been designated to be Construction Manager for another 3 year project in Queensland. Thereafter, Mr Prescott said that he would have hoped to have used Mr Shanks in the Western Australia project he is currently managing, which will still be in progress. Generally, in these sorts of projects, Mr Prescott considered that there would be an average working year for a Construction Manager of 2,500 hours.

21. On this evidence I am satisfied that:

(i) Had Mr Shanks remained in Queensland on the Yabula and following project, he would have worked an average of 2,500 hours per year to date.

(ii) For so long as Mr Shanks continued to work for AK on the type of projects referred to by Mr Prescott, he would have continued to have worked an average of 2,500 hours annually.

Hourly Rate

22. As I have indicated, when Mr Shanks was recruited to work on the Moomba project his hourly rate was A$76. When he moved to the Yabula project, that rate was increased to $90 net. (Mr John Frenkel, an expert accountant instructed by the Claimant, used the figure of A$99: but, as Mr Shanks readily accepted, this was in error in that it included 10% GST.)
23. In his letter of 23 December 2005, Mr Prescott said that Mr Shanks could expect to have received annual pay rises of 5% (which would have increased his pay to just under A$100 net by 2007). However, in his oral evidence he said that AK were now paying Construction Managers on medium sized projects (such as those Mr Shanks was engaged upon) between A$90 and A$155 per hour. Although the figures in his December 2005 letter were clearly gross of GST, I understood the figures he otherwise gave were net. They were too round to be otherwise: and he did not distinguish between Construction Managers who were employed and those who (like Mr Shanks) were employed on a contract for services. He said some earned more on major projects, such as the project in Western Australia which Mr Prescott himself in running. This reflected the booming Australian economy, and the lack of qualified and experienced managers. He said that, on moving from the Yabula project to the second Queensland project (in early 2006), Mr Shanks would have "had a raise". He said he thought he would have been earning A$110-120 per hour "as of today", when he would still have been working in Queensland.
24. Although this is more difficult to assess, in my judgment, following the second Queensland project, Mr Shanks would have been retained on the Western Australia project (or something of similar scale). It is very likely that he would have had a further rise in earnings. The company thought highly of his attributes, and Mr Prescott clearly had him ear-marked for the project he was running. It was a bigger project, and Mr Prescott indicated that, generally, the bigger the project the higher the rates for Construction Managers. However, I do not accept that it is likely he would have been given such a rise as to take him up to or beyond A$155 per hour. Although Mr Shanks was pleased at the rate agreed for the Yabula project, it was clearly not at the top (but rather near the bottom end) of the range of rates AK agreed with Construction Managers on that sort of project. Given that Mr Prescott considered Mr Shanks would currently be on A$110-120 per hour (say, A$115) in Queensland, I consider it likely that any increase to reflect moving to a bigger project would have been to the range (at current levels) of A$125-135 (say, A$130). Mr Prescott did not say that all Construction Managers on his project earned the top end of the range.
25. On the basis of this evidence, I find that:

(i) From 2005 to date, Mr Shanks would have earned between A$90 and A$120 net, and on average over the period A$105.

(ii) With regard to the future, whilst in Queensland (2006-9) he would have earned $115 per hour, and thereafter Mr Shanks would have earned A$130 per hour.

Lost Years' Claim: Deduction of Living Expenses

26. Although it is common ground that, in respect of Mr Shanks' lost years' claim, there must be a deduction in respect of his probable living expenses during those years, the amount of such deduction is in issue.
27. Mr Shanks is of course married. His daughter is over 18 and no longer dependent. His son died in 2001, in the circumstances I have described, leaving a wife and two children (Mr Shanks' grandchildren) born 19 May 1998 and 16 June 2000. These children were 5 and 3 when Michael died: they are now 9 and 7: they will be about 10 and 8 in early 2009. After Michael had been diagnosed with cancer, Mr Shanks told him that he would support them financially if needs be. He made that promise to his son. Although there was no regular financial support, Mr Shanks said he visited his daughter-in-law once a week before moving to work in Townsville: and, when he saw her struggling, he would pay a utility bill or got to the supermarket for her. He started bank accounts for the children, and he paid them the proceeds when he left Australia (A$1,700 and A$1,550 respectively). When Mrs Shanks visited Australia in June 2006, she gave her daughter-in-law A$1,000 towards the boys expenses (Penny Shanks Statement 10 April 2007, Paragraph 7). Mr Shanks said - and I accept - that he would have paid more towards the children as they grew up, and had greater financial needs. His daughter-in-law gave evidence that they had discussed him contributing to their education or health needs (Penny Shanks Statement 10 April 2007, Paragraph 5).
28. Furthermore, Mr Shanks said that the amounts he spent on himself were relatively small. He had a package from AK under which many of his living expenses (accommodation, car etc) were paid for.
29. In these circumstances, Mr Matthias Kelly QC submitted that the children were dependents and that the appropriate reduction in respect of Mr Shanks' own living expenses during the lost years should be 33% and not 50%.
30. Until Pickett v British Rail Engineering [1980] AC 136 overturned Oliver v Ashman [1962] 2 QB 210, a prospective loss of earnings award was limited to the period of the claimant's life expectancy. After Pickett, lost years claims were allowed: but subject to the amount to be recovered for earnings in those years being reduced by an estimated sum to represent the claimant's probable living expenses during these years (see, e.g., [1980] AC 136 at page 151A, per Lord Wilberforce). However, Pickett gave no guidance as to the appropriate method for the calculation of such expenses.
31. This issue was considered by the Court of Appeal in Harris v Empress Motors [1984] 1 WLR 212. O'Connor LJ (effectively giving the judgment of the Court) said (at page 228H):

"1. The ingredients that go to make up "living expenses" are the same whether the victim be young or old, single or married, with or without dependents. 2. The sum to be deducted as living expenses is the proportion of the victim's net earnings that he spends to maintain himself at the standard of life appropriate to his case. 3. Any sums expended to maintain or benefit others do not form part of the victim's living expenses and are not to be deducted from the net earnings."

32. In terms of the appropriate percentage to apply, O'Connor referred to the similar issue in a Fatal Accidents Act claim in which loss of dependency is being assessed, and where the following "simple solution" (page 216H) had been adopted:

"Where a family unit was husband and wife the conventional figure is 33 per cent and the rationale of this is that broadly speaking the net income was spent as to one-third for the benefit of each and one-third for their joint benefit. Clothing is an example of several benefit, rent an example of joint benefit. No deduction is made in respect of the joint portion because one cannot buy or drive half a motor car…. Where there are children the deduction falls to 25 per cent…." (page 217B-D).

33. Whilst that remained the convention for Fatal Accident Act deductions, in relation to lost years claims other than under the Act, O'Connor LJ criticised the approach to "joint expenses", finding that these were more sensibly (if not more logically) referable to each of the partners equally: and that the convention in such claims therefore grew that the appropriate deduction should be 50% where the victim was married man without children. Although he expressly indicated that that it was impossible to give general guidance (page 231D), the convention has grown that, where there are others (notably children) then the figure should be 33%. O'Connor LJ however did indicate that "in general, according to the circumstances, it seems to me that the proportion [of the deduction] will be greater than the percentage used for calculating the dependency under the Fatal Accidents Act" (page 231E).
34. May I make four points.
35. First, the difference between the conventions as to deductions for living expenses in a claim under the Fatal Accidents Acts on the one hand and a claim by a living claimant on the other has no obvious rational basis, given the principle behind allowing lost years claims by a living claimant expressed by Lord Wilberforce and the merit (as he saw it) of bringing lost years claims into line with amounts recoverable under the Fatal Accidents Act (see Pickett, at page 151A). Why should a married man without children recover only 50% of his earnings if he sues for lost years himself, when his estate would recover 66% if he dies and his estate sues in respect of the same loss? Of course, the former is not a dependency claim in form or substance -the jurisprudential basis of such claims being relatively uncertain, and the subject of criticism (see, e.g., McGregor on Damages, 17th edition (2003), Paragraphs 35-084 and following) - but the disparity in these potential results is curious and difficult to justify rationally.
36. Second, the figures suggested in Harris v Empress Motors (and any conventions that may have arisen in the light of that case) are not writ in stone. The figures set out in that judgment as relating to a Fatal Accidents Act claim are said to be conventions, not rigid figures to be applied without reference to the particular facts of a case. With regard to claims for lost years by living claimants, the Court of Appeal expressly refused to give general guidance "because so much depends upon the amount of the joint expenditure and the number of persons among whom it is to be divided" (page 231D). With respect, I agree. Although, in particular cases, figures which have frequently been used by the Courts may be useful starting points, in quantifying damages for personal injury there is no room for formulaic assessments applied without reference to the facts of the particular case.
37. Third, in either a Fatal Accidents Act claim or a lost years claim, where the deduction for living expenses is itself reduced because of expenditure on children, such a reduction is likely to be time limited. Where the victim is a married man, after the children have left home, the reason for the reduction will cease and the deduction for living expenses will go back to 66% (Fatal Accidents Act claim) or 50% (lost years claim).
38. Fourth, as always (see, e.g., Wells v Wells [1999) 1 AC 345 at page 363F, per Lord Lloyd: and at page 398E, per Lord Hutton), in all of this what the Court is seeking to do is to calculate the pecuniary sum which will make good to the victim the loss which he has suffered as the result of the wrong done to him: of course, insofar as money can do so. No more and no less. In pursuance of this principle, following the validation of lost years claims by Pickett, then in the words of Lord Wilberforce (Pickett, at page 151A), such awards should be made "after deduction of an estimated sum to represent the victim's probable living expenses during those years". Whilst a 33% deduction for a man with a wife and children - and a 50% starting point for a man with a wife and no children - may be useful starting points, in assessing these expenses the Court must take into account all of the evidence relating to the claimant's lifestyle and the sums he would likely spend on others as well as upon himself in the future.
39. With regard to Mr Shanks:

(i) Although he worked away from home and AK paid many of his expenses, he retained (e.g.) his home in Adelaide, and a car which his wife drove: and he maintained a good lifestyle upon which he (reasonably) spent a significant and conventional amount of his income. There was nothing in the evidence to suggest that he spent on himself anything much less than a typical man of such means.

(ii) With regard to his grandchildren, I accept that there would have been about 10-13 years from early 2009, before these children left their mother's home and higher education: and it is likely that Mr Shanks would have spent increasing amounts of money on them, as their financial needs grew. His financial commitment to the children before 2005 was mainly by way of comfort. I accept that, as the children moved through school and possibly beyond, it is likely that the calls on Mr Shanks' financial resources would have substantially increased. By my calculation the children would pass through higher education by about 2018-21. Mr Shanks would be 70 in 2018. This commitment would therefore have run from 2009 throughout his working life. Given the financial position of Mr Shanks' daughter-in-law, and the financial position Mr Shanks would have been in had he continued to work, I have no doubt that this financial commitment would have been a very real one - but not as great as if the children had been living with Mr Shanks himself.

(iii) I accept that, in relation to deductions in respect of living expenses, starting points of 50% deduction for a married man without children and 33% deduction for married man with children are sensible and appropriate. This proposition was supported by both parties. In the circumstances of this case, Mr Shanks clearly falls between these figures.

40. On all of the evidence I consider the appropriate deduction for the period after 2009 is 40%. Over the relevant period, in my judgment that properly reflects Mr Shanks' personal expenditure, taking account of his increasing commitment to his grandchildren.

Retirement Age

41. I accept that Mr Shanks would have worked beyond 65: and probably until he was 70. In coming to those findings, I have particularly taken into account the following.

(i) Mr Shanks' own evidence. Mr Shanks said that he proposed to work beyond 65, because (a) he thoroughly enjoyed his job: and (b) he had a commitment to his grandchildren, which he would have honoured. I accept that evidence. With regard to the former, I have no hesitation in accepting Mr Shanks' evidence. He clearly enjoyed - and was highly competent - in his job. With regard to the latter, as I have indicated, when the children would be at an age to cease being dependent, Mr Shanks would be about 70. Whilst this is not a dependency claim, that is an important factor. Expenses on the children would likely rise through the period of their education. Mr & Mrs Shanks had discussed "a retirement plan", but this was essentially for Mr Shanks to work on major projects for so long as it took him to earn sufficient to pay for a comfortable retirement. No firm date had been considered for his retirement: but he said he expected to be in Queensland for perhaps another 10 years (of course, he was unaware of AK's plan to move him to Western Australia: and had been told that there was likely to be enough work in Queensland to keep him busy until retirement). Ten years would have taken Mr Shanks to about 67. Had the children gone to college, then I consider it almost certain that Mr Shanks would have carried on working until 70. If they had not, then he might possibly have retired a year or two earlier: but I consider this very unlikely. That possibility is offset by the possibility that he might have continued in work beyond 70. Although unlikely, such a possibility cannot be excluded, because there was evidence from Mr Prescott that men in the industry did occasionally work on beyond even 70: and at least one of his grandchildren might still have been in tertiary education when he reached that age.

(iv) Before contracting mesothelioma, Mr Shanks was very fit and healthy. There appeared nothing in his health that would otherwise have stopped him working until age 70. Although a site man, he was in management and not in manual work.

(v) Mr Prescott explained that, not only was the Australian construction industry booming, there were inadequate experienced and qualified men, particularly in management. There is no sign of this boom ending, and the projects currently in the pipeline will last several years. Furthermore, there is no retirement age in Australia, and the Australian Government is taking steps to encourage people to stay in work past 65. When Mr Shanks left the Yabula project, his replacement was 68. Longevity in this type of employment was likely to continue.

(vi) Mr Prescott also said that Mr Shanks had already spoken to him with a view to working after 65: and had mentioned his commitment to his grandchildren as a reason for wishing to do this. Mrs Shanks was also of the view that he would work beyond 65.

42. On this evidence, I consider Mr Shanks would have without doubt worked beyond 65: and would very probably have continued to age 70. For the reasons I have given, I consider the possibility of his not working to 70 can sensibly be discounted.

Past Loss of Earnings

43. In relation to past loss, he claims loss of earnings from August 2005 when his mesothelioma was diagnosed and since when he has not worked. To 24 May 2007, this covers a period of 21.75 months.
44. On the basis of my findings above, Mr Shanks' average annual earnings during this period would have been based upon 2,500 hours at $A105 per hour, i.e A$262,500. This figure is net of GST: but it is common ground that 30% income tax should be deducted, giving a net figure of A$183,750 per year or A$15,312.50 per month. There are no further deductions to be made.
45. The award under this head is therefore 21.75 months at A$15,312.50 per month, or A$333,046.87 (£139,180.29).

Future Loss of Earnings

46. On the basis that he has a life expectancy of approximately 1.67 years, all of that time would have been spent on the second Queensland project, at $A115 per hour. His earnings during this period would consequently have been A$480,125 gross (i.e. 1.67 years x 2,500 hours per year x A$115 per hour), or A$336,087.50 net of income tax. There are no further deductions to make from this sum.
47. Mr Shanks is currently 59 years 4 months old. With regard to the lost years multiplier, the relevant Ogden Table (6th Edition) multiplier for a 59 year old man to a pension age 70 is 9.11 (8.39 for a 60 year old man). By my calculation that gives a multiplier for a man of Mr Shanks' age of approximately 8.87. From that has to be taken the 1.67 of life expectancy, giving a multiplier of 7.2. There are no further deductions to be made. Mr Shanks was in the construction industry, but in management: and, to the extent any deduction is warranted for the nature of his employment, this would be (i) very small, and (ii) offset by regional adjustment.
48. From 2009, I have found that Mr Shanks would have been earning the current equivalent of A$130 per hour, i.e. A$325,000 per year gross or A$227,500. From this must be taken the deduction for living expenses (40%), giving a multiplicand of A$136,500.
49. On the basis of these figures the lost years claim for loss of earnings is A$136.500 x 7.2, or A$982,800. With the loss of earnings claim for the period within the life expectancy, that makes an aggregate loss of earnings of A$1,318,887.50 (£551,163.09). That is the award I make under this head.

Loss of Other Contractual Benefits

50. Under his contract with AK, Mr Shanks was entitled to (i) free accommodation in Townsville, (ii) have his utility bills in Townsville paid, (iii) vehicle costs and (iv) regular flights back to Adelaide. Mr Shanks claims damages for these, on the principle set out thus in Kemp & Kemp (at Paragraph 10-068):

"In addition to his loss of earnings, a claimant may lose fringe benefits or perquisites associated with his work, such as free accommodation, the use of a car or free products, or the entitlement to a profit sharing scheme. The value of such losses should be ascertained by the Court, and the claimant awarded damages in respect of them."

51. For the Yabula project, Mr Shanks was given reimbursement of accommodation costs in Townsville of A$2,400 per month: and was entitled to payment of all his utility bills except telephone (although AK paid for his mobile calls). Mr Shanks estimates that the aggregate amount of the monthly utility bills paid was A$150. Throughout this time, he kept his house in Adelaide, and his daughter lived there -and it was intended for her to continue to do so. Although she appeared to pay something towards the bills, Mr Shanks continued to pay most. Therefore, most of the expenses in Townsville were referable to his work: and paid in addition to (rather than instead of) bills he would otherwise pay in relation to accommodation and utilities. Nevertheless, some utility expenses were effectively paid for by AK, in circumstances where they would otherwise have been paid for by Mr Shanks: and AK accommodating him other than at his home would result in some saving (e.g. on wear and tear etc to his own house). These are difficult to quantify - although they are certainly much less than the A$2,550 per month claimed, and indeed must be modest -but they are a loss to Mr Shanks. Doing the best I can, I consider the value of them to Mr Shanks to have been perhaps A$500 per month. The evidence was that this level of benefits would have continued throughout his career with AK, during which he would have been working away from Adelaide.
52. Under his contract with AK, Mr Shanks was also entitled to a vehicle, which he could use for business or home/pleasure use. The road tax, insurance and road tax were all paid. He claims for the value of these benefits. In relation to petrol, he claims £93 per month. That appears to me to be high, as a figure for the personal benefit to Mr Shanks - as opposed to his total petrol bill, which would include petrol for work. I shall allow £50 per month. In addition, I shall allow as past losses road tax and insurance claimed (£486.60). No claim for future losses is made in respect of these items.
53. In addition, in the Schedule of Loss, Mr Shanks claims for a new car, the Shanks having left their own car - I am of course here not referring to the company car - in Australia. I am not sure the extent to which this claim survived the trial. There was no focus on it. Other than possibly the additional costs of purchasing a car that will in due course enable him to continue to drive despite his condition (which I shall deal with under the separate head of claim for "Aids and Equipment"), I do not see how any such claim can be made. Their car in Australia presumably had a value, and I was not referred to any evidence that they made any loss on its sale and purchase of a new car in the UK. I make no award for this item.
54. Mr Shanks also claims for leave entitlement flights. Under his contract with AK, he was entitled to home leave within Australia every 4 weeks: and it provided that, "Home leave to a destination other than home base may be taken provided that the costs do not exceed those that would have been incurred had the contractor returned to their home base". Mr Prescott explained that the costs of these flights were budgeted into a project, and consequently, from AK's point of view, it did not make any difference if when and where flights were taken, provided that (i) the costs did not exceed monthly flights to home base and (ii) time was not taken off so as to disrupt the contract programme. Subject to these restrictions, Mr Prescott said that AK were willing to allow the value of flights to be saved up and (e.g.) used to take a holiday. Mr Shanks said that that was what he proposed to do.
55. I have considerable difficulties with this head of claim. First, although flights could be "saved up", it would have been difficult to use them on any long-haul flight, because of the requirement for Mr Shanks not to be away from site for any lengthy period. Second, this benefit was to enable someone working on site to go home on a regular (monthly) basis. Although Mr Shanks had only relatively recently started in Townsville, I have no doubt that he would have wished to have visited Adelaide from time to time in any event: Mr Shanks said in his evidence to me that, although he had not gone back home during the first three months, he "would have gone back once a month as entitled". He said that, understandably, he wished to keep in touch with his daughter-in-law and children. I find this claim fails on the evidence.
56. Therefore, on the evidence, I do not consider that Mr Shanks has suffered any loss by being deprived of this contractual benefit.
57. Therefore, under this head the claim is limited to:

Past Losses	Accommodation, utilities etc: 21.75 months x A$500 = A$10,875 x 0.4179	£4,544.00
	Vehicle expenses: 21.75 months x £50 = £1,087.50 + £486.60	£1,574.10
		£6,118.10
Future Losses	Accommodation, utilities etc: 8.87 x 12 months x A$500 = A$53,220 x 0.4179	£22,240.64
	Vehicle expenses: 8.87 x 12 months x £50	£5,322.00
		£27,562.64

58. I shall consequently award £6,118.10 and £27,562.64 for past and future losses respectively under this head of claim.

Future Pension Losses

59. Mr Shanks is entitled to a state pension. It is agreed that the appropriate multiplicand is £3,202.68. The appropriate multiplier, on the basis that Mr Shanks would have retired at 70, is 10.12. I shall consequently award the sum of £32,411.12 under this head.

Medical Treatment Expenses

60. These are agreed in the sum of £7,512.

Relocation Costs: Preliminary Issue

60. In October 2005, as soon as Mr Shanks was well enough to travel after his August 2005 operation, his wife and he travelled back and moved back to the United Kingdom: and have since lived near Newcastle. They claim a variety of costs in relation to moving and living there. These claims give rise to one matter of principle, which I shall consider before I consider the individual claims in detail.

61. It is submitted on the part of the Defendant that, although it is understandable that in the circumstances Mr Shanks would wish to return to England, it is not reasonable as between the parties that the Defendant should bear the costs of him doing so. To relocate was, in effect, his own personal choice: and the costs of it are therefore not recoverable. Neither Counsel could refer me to any authority in which such relocation expenses had been recovered.
62. However, as I have indicated, Mr & Mrs Shanks decided to return to the UK because they considered they would be unable to cope with Mr Shanks' illness without the support of their close family, who were in the North of England. This decision was informed by (i) their previous experience in Australia with their son's illness, and (ii) the fact that Mr Shanks was at that time - after his August 2005 operation - very ill indeed. In these circumstances, I do not see why the Defendant is not liable for the proper costs of relocation.
63. Mr Feeny compared the claim to a claim by someone diagnosed with a terminal illness for the costs of "a holiday of a lifetime" or the costs of having relatives visit. However, in my judgment there is a fundamental difference between such claims and this. In the case of a holiday of a lifetime or visits of relatives, these events are not caused by the victim's condition: the timing of such events (and therefore the cost) is merely brought forward. There is no chain of causation between the insult that caused the condition and the costs sought. However, in this case, Mr Shanks would not have left Australia and relocated to England but for Mr Shanks' condition. This was not bringing forward an event: it was causing an event to happen, that would otherwise not have happened.
64. Mr Feeny accepted that it would be reasonable for a defendant to pay the costs of travel, if the claimant became ill abroad in a country where (e.g.) the medical facilities were poor. There is of course effectively a scale between such a case, and the case of someone upon being given a diagnosis of a condition wishes to travel or even relocate on a personal whim. In the case before me, the evidence was that the medical facilities in Australia matched those in the UK: and Mr & Mrs Shanks had a splendid house and home in Adelaide. The decision to relocate to the UK was not merely a whim of Mr and/or Mrs Shanks. They carefully considered the alternatives and, in my judgment understandably and reasonably, they decided that they would be unable to cope in Australia. They said that this was not a decision lightly taken, bearing in mind they had been in Australia for 20 years and had only been back to the UK on half a dozen occasions in the meantime. I accept this: on the evidence, it was patently true. Not only was the relocation caused by the condition and consequently the Defendant's negligence, in my judgment this loss was reasonably foreseeable and not too remote. Of course, each case turns on its own facts. The costs of not every relocation will be recoverable. But, in the circumstances of this case and on the evidence I have heard, in my view this is loss which, as between the parties, it is reasonable for the Defendant to bear.

Relocation Travel Costs

65. The main issue contested under this individual head was the reasonableness of Mr Shanks travelling back to the UK in Business Class. Given the evidence as to his medical condition at the time, I have no doubt that this was reasonable and the relevant costs recoverable. The journey was 23 hours. He was in very poor health, and could not sit up. Business Class enabled him to lie down during the trip. That was essential. I note that his wife flew with in Standard Class.
66. Therefore, I allow the flight costs for both Mr Shanks (£3,661.45) and his wife (£1,664.26). I do not allow the flight costs for their daughter, who was by this time over 18 and who returned to live in Australia. Nor do I allow the miscellaneous costs which are claimed under this head (including Mrs Shanks' apparent loss of earnings claim), which appear to be unsubstantiated by any compelling evidence. I do allow the travel costs of Mrs Shanks' sister (£1,077.76), who went to Australia to assist after Mr Shanks' operation, before the decision was made that the Shanks' would relocate to England. Just as I find that it was reasonable for Mr & Mrs Shanks to relocate to the UK, I find it eminently sensible and reasonable for them to have attempted to cope in Australia with the assistance of one relative from England whose flights they paid for. Had they not made such an attempt, they may have been open to a charge that they had failed to mitigate their loss.
67. Therefore, under this head I award a total of £6,403.47.

Accommodation Costs

Costs of Renovation of Grindon Close

68. After staying with friends and then renting accommodation (see below), Mr & Mrs Shanks bought a property in Grindon Close, West Monkseaton, near Newcastle. They had been led to believe that, as a result of his condition, there would come a time when Mr Shanks would be wheelchair bound. That prognosis is confirmed in the expert nursing report of Ms Maureen Hamilton, referred to below. By the nature of his condition, it is sadly all but inevitable. They consequently bought a bungalow, and renovated it to ensure that it was "wheel chair friendly": in particular, this meant having clear runs through the house, without sharp corridors, and ensuring that there was easy wheel chair access to the various rooms.
69. The Defendant criticises this course of action. First, it criticises the fact that the house in England was more expensive than the Shanks' house in Australia. However, Mr Shanks does not (now) seek to recover the additional cost of this house of the mortgage payments: and, from the evidence I heard from Mr & Mrs Shanks and saw from photographs, I am satisfied that the bungalow in Monkseaton is of no better standard than their house in Australia. The house in Adelaide was a very attractive lakeside home and was maintained to a very high standard, and it is clear that any differential in price is solely as a result of the difference in the property market between Adelaide and the North of England.
70. Second, they submit that at least some of the items of work on Grindon Close were not works necessary because of Mr Shanks' condition, but they were improvements to the property such as anyone may wish to do when they move into a new house. Perhaps the most stark example was the work to the fencing (£1,300). The fitting of an alarm was another. Mr Kelly accepted that some of the items were so referable - he was bound to make that concession on the evidence - but I agree with his submission that the proportion of the works that fall into this category is modest. Mr Shanks, for example, explained that the back garden needed re-paving to enable wheel chair access. The works also required the knocking down of several walls, that consequently necessitated substantial rewiring etc. When part of the kitchen was knocked down that necessitated re-tiling the whole kitchen - as it was impossible to match the original tiles, said Mr Shanks. This evidence had considerable force.
71. The building costs are itemised in a detailed schedule prepared by Mr Shanks, in the sum of £54,910.47. A great proportion of the items relate to either the kitchen and bathroom, both of which required considerable adaptation because of Mr Shanks' condition. On this schedule and the evidence I heard, doing the best I can, I consider that at least about three-quarters of the costed items are referable to works required as a result of Mr Shanks' condition, and particularly to the fact that, at some stage, he will be restricted to a wheel chair.
72. In respect of these costs, I will award £40,000. Costs of staying with friends
73. Mr Shanks claims £5,400 for staying with friends in the North of England for three months on his return to the UK. This is simply put as "3 months @ say £20 per day per person to cover expenses £60 x 90 days". I do not fully understand this claim, which was not the feature of any specific evidence. It is not a claim that his friends sought payment, or were paid anything. In so far as it relates to the usual living expenses of Mr Shanks, it is not "Accommodation expenses", and is claimed elsewhere. I do not see how the living expenses of Mr Shanks' daughter could be claimable in any event.
74. I am not satisfied that any part of this head of claim is recoverable. I allow nil. Rental in respect of Glaisdale Road
75. After they had stayed with friends and before they bought Grindon Close, Mr & Mrs Shanks lived in rented accommodation. It was perfectly reasonable for them to do so, whilst they looked for a house to buy. There is no suggestion that this was an unreasonable course, or that the property rented was not appropriate. I allow the item in full (£8,375).

Mortgage payments in respect of Grindon Close

76. This claim is no longer pursued.

Legal costs of sale of the Australian Property and purchase of Grindon Close

77. These costs are properly referable to the relocation. No issue is taken with regard to their quantum, and I shall allow the claim in full (£6,220).

Relocation Moving Costs

78. Mr Shanks claims £2,103 in respect of relocating his family's belongings to the UK. Again, these are directly referable to the relocation and I shall allow them in full. The costs claimed for storing his daughter's belongings when the Australian home was sold (pending her buying her own property) is not properly referable to the relocation, and is not recoverable.
79. In addition to the removal costs, a further sum of £3,889 is claimed for items which (as I understand it) were left in Australia because it was not worth shipping them) and they have been bought new in the UK. Although I do not see how "mobile phone calls" can properly fall under this head, as a matter of principle the costs of these items are claimable, subject to betterment. Most of the items are either furniture, or disposables. In the absence of evidence as to what condition their Australian counterparts were in when left, I shall allow 50% of this item less the cost of the telephone calls (i.e. £1929.50)
80. Therefore, in aggregate I shall award £4,032.50 under this head. Utilities and Council Tax
81. This head of claim was not considered at trial, and I am unsure of the basis of it. It is for utility bills from Grindon Close: and it appears that it is made because, in Australia, utilities in general were paid by AK. If that be the case, this claim is already covered in the head of claim for "Other Contractual Benefits".
82. I shall award nil under this head. Summary
83. Therefore, in summary, in relation to accommodation costs claimed:

Costs of Renovation of Grindon Close	£40,000.00
Costs of staying with friends	Nil
Rental in respect of Glaisdale Road	£8,375.00
Mortgage payments in respect of Grindon Close	Nil
Legal costs	£6,220.00
Relocation Costs	£4,032.50
Utilities and Council Tax	Nil
	£58,627.50

In relation to relocation costs the aggregate award is £58,627.50.

Care Costs

84. The claim for care costs is under three sub-heads: past care, future care and aid/equipment. The claim for DIY etc was not pursued.
85. The claim is based upon a report of an expert care nurse, Ms Maureen Hamilton dated 26 April 2006. Ms Hamilton had Dr Rudd's report, and was therefore based upon the premise that Mr Shanks' life expectancy was only mid-2007: and that, during the period between her report and then, he would rapidly decline. As can be seen from above, this has very fortunately not proved to be the case. The whole basis of her report has therefore failed; although the figures she gives are very useful in constructing an appropriate figure for care.
86. In terms of the rate for Mrs Shanks caring for her husband, the Claimant contends for £4.85 (£6.22 less 22%): the Defendant for £4.50. An appropriate rate is £4.75. In relation to sleep in care, Ms Hamilton proposes a weekly rate of £462, which is not contested as an appropriate rate.
87. On the basis of the medical evidence that we currently have, Mr Shanks' illness can usefully be divided up into the following periods for the care claim, which I shall deal with in turn:

(i) August - December 2005: A period when Mr Shanks was very ill after his

operation (see Paragraphs 89-91 below).

(ii) January 2006 - March 2006: Following chemotherapy, Mr Shanks

recovered a great deal, until by the time of his assessment by Ms Hamilton he

was relatively fully functional (Paragraphs 92-3).

(iii) April 2006 - date: Mr Shanks has been functional and stable: his condition

has not significantly changed in the period (Paragraphs 94-5).

(iv) May 2007 - April 2008: Dr Hughes considers his functionality and

symptomatology will remain stable during this period (Paragraphs 96-7).

(v) May 2008 - January 2009: On the basis of Dr Hughes' evidence, this is likely to be a period of decline with decreasing functionality and increasing symptoms (Paragraphs 98-100).

I shall deal with these periods in turn.

88. August - December 2005 (a period of 19 weeks, or 133 days): Mr Shanks was very poorly, and could do little for himself. His wife had to assist him with personal hygiene - he could not self-care - and all tasks around the house. She had to give him regular care, day and night.
89. Ms Hamilton puts the level of such care at an average of 16 hours per day. That is too high. It is important that the hours of care are kept separate from other time that Mrs Shanks obviously wished to spend with her husband, as any wife would. Nevertheless, the care required during this period was heavy, particularly during the early weeks. Given the medical evidence and other evidence of his condition, on average, I consider the appropriate level of care to have been 10 hours per day.
90. Care costs for this period consequently amount to £6,317.50 (£4.75 rate x 133 days x 10 hours per day).
91. January 2006 - March 2006 (a period of 13 weeks, or 91 days): During this period, Mr Shanks underwent chemotherapy, and was very ill as a result. However, during the period he recovered so that, by the end of it, his functionality and symptoms are as they are today. This was therefore a period in which the care required at the beginning was very much more than that required at the end. On average, I consider the appropriate level to have been 7 hours per day.
92. Care costs for this period consequently amount to £3,025.75 (£4.75 rate x 91 days x 7 hours per day).
93. April 2006 - date (a period of 59 weeks, or 413 days): Mr Shanks has been relatively functional, and has been stable. The Defendant concedes 3.5 hours per day and, on the evidence, Mr Shanks' care needs do not exceed this.
94. Care costs for this period consequently amount to £6,866.12 (£4.75 rate x 413 days x 3.5 hours per day).
95. May 2007 - April 2008 (a period of 49 weeks, or 343 days): Dr Hughes considers Mr Shanks will remain stable during this period, and so too therefore will his care requirements at 3.5 hours per day.
96. Care costs for this period consequently amount to £5,702.38 (£4.75 rate x 343 days x 3.5 hours per day).
97. May 2008 - January 2009 (a period of 39 weeks, or 273 days): This is the most difficult period to estimate; but there will come a time when Mrs Shanks will be unable to cope on her own, and will require sleep-in care. Having seen and heard Mr Shanks, I have no doubt that he will wish to have such care and it would be reasonable that he does have such care. That will take some of the strain - and sheer hours - off Mrs Shanks' shoulders.
98. I estimate that he will require 3 months of sleep-in care, at the rate proposed by Ms Hamilton (£462 per week), i.e. £6,006. In addition, on average (and taking account of the sleep-in care), over the whole 9 month period, Mrs Shanks will care for him for 7 hours per day. Again, this is an average over a period during which the care requirements will change significantly: but, over the entire period, this is the best estimate that can be given.
99. Care costs for this period consequently amount to £14,085.75 (£4.75 rate x 273 days x 7 hours per day = £8,079.75 + £6,006).

Aids and Equipment

100. These were not seriously contested, and the following are reasonable (as costed by Ms Hamilton):

Electrically operated bed	£3,500.00
Reclining chair	£1,500.00
Electric wheelchair (inc insurance)	£3,090.00
Car	£5,500.00
	£13,590.00

Almost all of these costs are future expenditure.

:

Care: Summary

101. Therefore, in relation to care etc, I have made the following awards:

Past care costs	August - December 2005	£6,317.50
	January 2006 - March 2006	£3,025.75
	April 2006 - date	£6,866.12	£16,209.37
Future care costs	May 2007 - April 2008	£5,702.38
	May 2008 - January 2009	£14,085.75	£19,788.13
Aids and equipment			£13,590.00
			£49,587.50

Daughter's Earnings

102. This claim was not pursued.

Summary

103. Therefore, in summary, I have made the following awards on individual items of claim:

General damages			£70,000.00
Past losses	Loss of earnings	£139,180.29
	Loss of other contractual benefits	£6,118.10
	Medical treatment expenses	£7,512.00
	Relocation travel expenses	£6,403.47
	Relocation costs	£58,627.50
	Care costs	£16,209.37
	Daughter's earnings	Nil
			£234,050.73
Future losses	Loss of earnings	£551,163.09
	Loss of other contractual benefits	£27,562.64
	Loss of pension rights	£32,411.12
	Care costs	£19,788.13
	Aids and equipment	£13,590.00
			£644,514.98
			£948,565.71

Subject to what I say below, I shall give judgment in that sum.

Conclusion

104. I understand that, from this sum, there will be some relatively small deductions in respect of statutory and benefit payments. The calculation of interest will depend upon such reductions. I shall consequently order that the parties shall liaise and, by 4pm on 31 May 2007, they shall file either file for approval a draft consent order compromising all matters between them (except the assessment of costs) or alternatively apply for a further short hearing to be fixed at which consequential matters can be determined. In respect of any such hearing, the parties will in writing (i) indicate whether the hearing can be by way of telephone hearing, and (ii) set out the issues remaining between them. Any application will be reserved to me.

His Honour Judge Gary Hickinbottom

23 May 2007