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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2008

MR JUSTICE HAMBLEN:

Introduction

1. The Claimant, Mrs Beesley, is the widow and executrix of the estate of Mr John Lambie, who died on 5 November 2006 as a result of contracting malignant mesothelioma, caused by exposure to asbestos while he was employed by the Defendant.
2. Mrs Beesley brings this claim on behalf of the Estate under the Law Reform (Miscellaneous Provisions) Act 1934 and as his dependant within the meaning of the Fatal Accidents Act 1976.
3. The Defendant did not admit liability, but judgment was entered pursuant to the order of Deputy Master Eastman dated 16 September 2008.
4. On 4 December 2008 there was a hearing on the assessment of damages. In this judgment I shall deal with the disputed heads of damages.

THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934

General damages for pain, suffering and loss of amenity

5. Mr Lambie was born on 27 April 1944.
6. Details of the progression of his illness are contained in the reports of Dr Rudd, dated 16 August 2006 and 12 October 2007, Mr Lambie's witness statement dated 22 July 2006, and the statement and oral evidence of Mrs Beesley.
7. The symptoms started in June 2005. The medical records show that he complained of a cough with fever and general malaise. He was sent for a chest x-ray which showed a large left pleural effusion. This was confirmed when he was seen at hospital on 22 June 2005 when he was found to be severely breathless. On 27 June 2005 a pleural aspiration to drain fluid was performed. On 8 July 2005 a CT scan showed a moderate left pleural effusion. A chest x-ray on 3 August 2005 showed a persistent left pleural effusion and he was admitted to hospital that day for further pleural drainage, being discharged the following day.
8. At a review on 12 September 2005 he was noted to have been well since his last pleural aspiration. His chest x-ray showed clearing at the left base although there was residual pleural thickening.
9. On 22 November 2005 he was reported as feeling well. There was still reduced air entry at the left base consistent with pleural thickening. He was to be reviewed in a further six months.
10. A chest x-ray on 16 May 2006 showed a large left pleural effusion. The appearances had deteriorated since 22 November 2005 and urgent referral for further treatment was suggested. On 23 May 2006 he was seen again at hospital and the notes recorded that "Until February has been fine", but that he had been deteriorating since with shortness of breath, pain in the left side of his chest, dry cough, sweating, reduced appetite and tiredness. He was admitted to hospital for further investigation.
11. A biopsy confirmed the diagnosis of mesothelioma and he was informed in June 2006. He was aware that his condition was fatal. He had radiotherapy at the biopsy site. He underwent three cycles of chemotherapy, which began in July 2006 and produced extremely unpleasant side-effects, including nausea and vomiting. His left arm became swollen as a result of the tumour. He also developed numbness in his leg due to retro-peritoneal involvement by the tumour. He was severely breathless and was given palliative oxygen cylinders for use at home. He suffered from extreme pain and was prescribed morphine. By October 2006 he was on a continuous infusion of diamorphine, as he was having difficulty taking oral medication, and ultimately he had it injected. He became completely incapacitated.
12. He died on 5 November 2006, aged 62. The medical evidence was that but for the mesothelioma, Mr Lambie's life expectancy would have been almost 22 years.
13. Based on the medical notes and records the Defendant submitted that although Mr Lambie was unwell in 2005, he was not severely ill until February 2006 at the earliest, and perhaps not even until June 2006. They relied in particular on the notes recording that he had stated that he was feeling well in November 2005 and until February 2006.
14. However, as Mrs Beesley explained, and I accept, the medical notes do not tell the full story. As a proud and stoical person, who had rarely visited the doctor prior to this illness, Mr Lambie was inclined to play down his symptoms. In fact, from June 2005 onwards he was breathless, tired, aching and sweating. The lassitude and incapacity which he felt is demonstrated by the fact that from that time on he felt unable to continue with any work or even to drive. While previously he had been a fit, active and hard working man he now did not want to go anywhere or do anything. He just lay around the house, sleeping much of the time.
15. It was submitted on behalf of Mrs Beesley that this was a devastating illness. Mr Lambie's suffering was extreme, even by the standards of this type of case. It was submitted that the case falls at the higher end of the JSB Guidelines (9^th ed) range of £52,500 to £81,500 and that an appropriate award for pain, suffering and loss of amenity would be £75,000.
16. The Defendant submitted that the top of the JSB bracket was too high by reference to the decision of the Court of Appeal in Rees -v- Mabco [102] Limited, one of the awards reviewed in Heil -v- Rankin [2001] QB 2072 at paragraph 154, where it was observed that £50,000 (£64,300 today) was thought to be appropriate for a case at "the upper limit of the bracket for this type of injury."
17. I do not accept that it is appropriate to disregard the JSB Guidelines on the basis of what was said in a 2001 Court of Appeal decision. The JSB Guidelines represent current best practice based on up to date judicial decisions and medical knowledge. I was referred to a number of decisions consistent with the current guidelines, such as Mason-Cave v Massey Plastic [Kemp & Kemp K3-008.1]; Small v Circaprint [Kemp & Kemp K3-002.1] and Smith v Bolton Cooper Ltd [Lawtel, 10 July 2007]. If Court of Appeal authority be needed, I was referred to Rothwell v Chemical & Insulating Co Ltd [2006] 4 All ER 1161 in which it was observed at paragraph 174 that "the usual award in a case of mesothelioma is about £60,000". That would be about £67,500 today, which is approximately the midpoint of the JSB range. I therefore propose to follow the JSB Guidelines range.
18. The top end of the JSB bracket is said to be for periods of pain and suffering of four years or more. The period in the present case is about 17 months which would put the case near the midpoint of the range, as the Defendant accepted. In so far as it was being suggested a lesser period should be taken because the pain and suffering was less in the earlier months, I reject that. There was severe pain and impairment of function and quality of life throughout the 17 months, albeit more severe towards the end of Mr Lambie's life.
19. It was submitted on behalf of Mrs Beesley that the extreme pain, suffering and loss of amenity suffered in the last few months of Mr Lambie's life justified an award at the higher end of the JSB range. I agree that some uplift is justified and taking all the relevant circumstances into account in my judgment the appropriate award in this case is £72,000.

Sundry expenses

20. Mrs Beesley claimed a range of sundry expenses such as bedding, extra heating, telephoning, special food, lotions and ointments, and the cost of paying tradesmen to perform home and garden work which Mr Lambie would otherwise have performed. These were collectively estimated at £3,000.
21. No invoices were provided in support of the claim and the Defendant submitted that it therefore was not or was not adequately proven. In relation to the tradesmen claim there was also an overlap with the loss of services claim.
22. I agree that the tradesmen element of the claim should be addressed under loss of services rather than as sundry expenses. However, in the light of Mrs Beesley's evidence as to what needed to be provided during Mr Lambie's illness I do not accept that no expenses are recoverable.
23. I consider that an appropriate sum under this head is £750.

Care and assistance

24. The Defendant relied on the following propositions: -

(i) The amount recoverable is such as will, "enable the voluntary carer to receive recompense for his or her services" Hunt -v- Severs [1994] 2 AC 350.

(ii) In the case of care provided by relatives an award should be made, "Only in recompense for care by the relative well beyond the ordinary call of duty for the special needs of the sufferer" Mills -v- British Rail Engineering Limited [1992] P.I.Q.R. Q130 at p Q137 - Dillon L.J.

(iii) There is no conventional formalised calculation which can be used in assessing proper recompense for services provided gratuitously by a family carer. The assessment must depend on what is appropriate in the individual case - Evans -v- Pontypridd Roofing Limited [2001] EWCA Civ 1657, [2002] P.I.Q.R. Q61.

(iv) Commercial rates should generally be discounted to reflect tax and national insurance contributions, which a gratuitous carer will not have to pay, Evans above at p Q73 (paragraph 37).

25. Save for a qualification to proposition (ii), these principles were not seriously disputed. The qualification, which I accept, is that made by the Court of Appeal in Giambrone v Sunworld Holidays Ltd [2004] EWCA (Civ) 158 at paragraph 24 where they stated as follows:

"Although in this ex tempore judgment Dillon LJ used the words "well beyond the ordinary call of duty" on p Q137, he used the milder phrase "beyond what [a wife] would anyhow be doing for her husband" at p Q138, and it is evident from the calculations…showed us that it was this second test which the Court of Appeal actually applied".

26. In support of her claim, Mrs Beelsey relies on the reports of Dr Rudd and her own statement and oral evidence.
27. Mr Lambie's suffering was intense. Mrs Beesley did all she could in her attempts to ameliorate it, but the pain was severe and inadequately controlled. He became completely incapacitated. Mrs Beesley described how she borrowed a commode, because he was unable to get to the toilet. Eventually even using a commode became too difficult and he had to wear incontinence pads.
28. Throughout Mr Lambie's illness, Mrs Beesley was at hand to provide care and assistance for him. He was severely breathless by June 2005. He had repeated pleural drainage and three cycles of chemotherapy and she stayed with him while he was an inpatient. The chemotherapy had unpleasant side effects which necessitated more care and assistance. Mrs Beesley washed and dressed him. She applied moisturiser to his skin. The level of care Mr Lambie required increased as the disease progressed and it was effectively full-time 24-hour care in the last few months of his life. He had to sleep in the downstairs living room and Mrs Beesley slept on the sofa next to him to attend to his needs during the night.
29. The Defendant questioned the degree of care provided by Mrs Beesley in the early months of Mr Lambie's illness, at least up until February 2006. While there is no doubt that the degree of care required and provided increased during 2006 until, from late June 2006, it was effectively full-time care, I am nevertheless satisfied that a significant amount of care had to be provided throughout Mr Lambie's illness. He was sufficiently tired and ill to be around the house nearly all the time, where he had to be tendered to. From the outset he frequently slept downstairs, where she would often stay by him.
30. The claim was put at an average of 8 hours per day over the entire period at a rate of £8.43 per hour (less 25% for non-commercial care). This equated to a claim of £26,402. Although the rate claimed was not disputed, the Defendant submitted that the hours claimed were manifestly excessive and that a broad brush approach should be adopted, resulting in an award of around £3,500.
31. Given that for the last months of his life Mrs Beesley was effectively providing full-time care to Mr Lambie, it is apparent that a significant award is appropriate. Four months of full-time care would equate to about £18,000. Only a limited number of hours during the early months of the disease would bring the claim up to the figure claimed. In my judgment the appropriate award in this case is £25,000.

Pre-death loss of earnings

32. Mr Lambie was a self-employed builder and decorator. He had to stop working in June 2005 because of his illness. The original schedule of loss claimed an annual loss of £12,279 net, based on the average of the three previous years. The Defendant disputed this figure and the use of an average over previous years as a guide to his income. At the trial Mrs Beesley accepted the most recent full year before his illness as an indicator of Mr Lambie's income. This was £9,985 per year net or £27.36 per day. Over the period in question, 522 days, that would produce a loss of £14,281.
33. The Defendant claimed that this should be modestly reduced to reflect the possibility either that the work was not there, or that Mr Lambie chose not to work on so many days as before.
34. I agree that a modest discount is justified and consider the appropriate figure to be £13,500.

CLAIM UNDER THE FATAL ACCIDENTS ACT 1976

Loss of income dependency

The period and amount of income

35. The principal issues which arise are:-

(i) For how long Mr Lambie would have carried on working if he had not become ill?

(ii) Whether he would have carried on with the same level of work as before?

(iii) Whether and, if so, how the loss of income dependency is affected by the £3,000 per annum paid to Mrs Beesley.

36. The Defendant submitted that there must be considerable doubt as to whether Mr Lambie would have continued with his business, or done so with the same workload, given in particular that:

(i) There had been a noticeable reduction in Mr Lambie's last year of earnings.

(ii) Mrs Beesley gave evidence that Mr Lambie wanted to try to take more Fridays off.

(iii) In the medical records Mr Lambie is described variously as "retired" or "semi-retired".

(iv) Mr Lambie's work was based in London although living in Lincolnshire. His willingness and ability to sustain a business away from home with substantial domestic commitments must be uncertain, especially if economic circumstances became difficult.

37. I do not consider that any particular significance can be attached to point (i), other than it illustrates the cyclical nature of Mr Lambie's work. Point (iii) is of little weight since the fact that he had stopped working when he became ill justified this description. There is, however, some force in points (ii) and (iv).
38. The Defendant further contended that Mr Lambie would not have worked beyond 65, and in this connection relied upon paragraph 33 of his statement in which he said that "It was my intention to work until at least 65 and possibly more until 70 years". However, at paragraph 35 of his statement he said that he would have carried on working until "at least probably 70 years old".
39. Mrs Beesley's evidence was that he was a very active man who enjoyed his work and the camaraderie it provided, and that he would have hated being around at home doing nothing. She therefore thought that he would have worked until he was at least 70, and possibly longer, at least on local work.
40. I have already found that, if he had not been ill, Mr Lambie would have worked substantially as he had done before up until the time of his death. I also find that he would have carried on doing so until he was 65, although he would have taken some more Fridays off.
41. Between 65 and 70 he would have carried on working, but he would have taken even more Fridays off, as well as taking the chance to have longer holidays with Mrs Beesley, now that their foster children had moved on.
42. After he was 70 he would have essentially retired, although he would have continued to do the odd local job, and I take this into account in arriving at the appropriate discount for contingencies to be applied to his work income from the age of 65 to 70.
43. In the light of these findings I consider that it is appropriate to discount his earnings from the date of his death up to the age of 65 by 10% and from 65 up to the age of 70 by 20%.
44. In relation to Mrs Beesley's earnings, the evidence was that on the advice of their accountant Mr Lambie used to pay £3,000 per year out of his earnings to Mrs Beesley for clerical assistance. The Defendant contends that this was the true value of the service being provided, that this should be included in the dependency calculations by being deducted from the dependency claim.
45. The Claimant submitted that this approach is incorrect. Mrs Beesley did a small amount of casual clerical work for Mr Lambie, but he was the main breadwinner and her income was derived from his business and their relationship. She was paid in excess of the market rate because they were married. Where a pecuniary benefit of this nature in reality arises from the marital relationship, it forms part of the dependency; see Malyon v Plummer [1964] 1QB 330 (CA).
46. It was accordingly submitted that the additional £3,000 paid to Mrs Beesley should be written back in as part of the dependency, but that it would be reasonable to make a deduction of about £500 to reflect Mrs Beesley's actual services to the business (which is not a loss of dependency).
47. Resolution of this issue depends on the value of Mrs Beesley's services to the business. The evidence was that the figure of £3,000 was suggested by their accountant, but that in fact the hours Mrs Beesley worked were relatively minimal. She suggested about 2 to 3 hours a month dealing with invoices and receipts and about 10 hours at the end of each year. I consider that she is likely to have had to spend rather more time on her described tasks than this and that the appropriate valuation of her services is £1,500. Otherwise, I accept that the approach adopted by the Claimant is the correct one.
48. In the light of my findings above, the annual loss during the period that Mr Lambie would have continued to work (ignoring any discount for contingencies) is therefore:

Mr Lambie's net income: £9,985

Additional family income derived from business: £3,000

Joint income: £12,985

Dependency ratio of 2/3rds £8,657

Less value of Mrs Beesley's services to the business (£1,500): £7,157

The multiplier

49. Dr Rudd estimated that Mr Lambie' s life expectancy was cut short by 21.9 years. This produces a life multiplier of 16.91 (see Ogden table 28, at 2.5% per annum discount). In the light of this specific and unchallenged evidence I accept that it is appropriate to take this figure as the multiplier rather than the slightly lower figure of 16.10 used by the Defendant, which was taken from Ogden table 1. I also accept that the figures derived therefrom by the Claimant for each relevant period are appropriate.

Past loss of income

50. From the date of death (5 November 2006) to the date of trial is a period of 761 days or 2.08 years.
51. Discounting Mr Lambie's net income by 10% for contingencies, the appropriate annual income figure for this period is:

Mr Lambie's net income: £8,987

Additional family income derived from business: £3,000

Joint income: £11,987

Dependency ratio of 2/3rds £7,991

Less value of Mrs Beesley's services to the business (£1,500): £6,491

52. The past loss of income is therefore £6,491 x 2.08 = £13,501.

Future loss of income dependency

53. The remaining part of the multiplier is 14.83.
54. Future income dependency can be separated into 4 distinct periods:

From the date of trial to the date when Mr Lambie would have reached 65 (when he would be entitled to draw his pensions);

From Mr Lambie's 65^th birthday to his 70^th birthday (when he would have retired);

From Mr Lambie's 70^th birthday to Mrs Beesley's 63^rd birthday (when she would be entitled to a state pension);

The rest of the multiplier.

55. Period 1 – From 5 December 2008 to 28 April 2009: This is a period of 0.40 years. Mrs Beesley's loss of income dependency will continue at the same level as set out above.
56. The loss is therefore £6,491 x 0.40 = £2,596.
57. Period 2 – From 29 April 2009 to 28 April 2014. This is a period of 5 years (producing a multiplier of 4.7).
58. During this period Mr Lambie would also have become entitled to a state pension of £90.57 per week (or £4,722 per year) and a private pension of £36.80 per month (or £441 per year).
59. Mrs Beesley would have had no income (other than that derived from Mr Lambie's business) during this period.
60. Discounting Mr Lambie's net income by 20% for contingencies, the appropriate annual income figure for this period is:

Mr Lambie's net earned income: £7,988

Mr Lambie's pension £5,163

Additional family income derived from business: £3,000

Joint income: £16,151

Dependency ratio of 2/3rds £10,767

Less Mrs Beesley's services (£1,500): £9,267

61. The loss in this period is therefore 4.7 x £9,267 = £43,555.
62. Period 3 – From 29 April 2014 to 20 May 2016. This is a period of 2.06 years (producing a multiplier of 2).
63. Mr Lambie's income would have been £5,163. Mrs Beesley would have no income during this period.
64. The loss is therefore: £5,163 x 2 x 2/3rds = £6,884.
65. Period 4 – From 20 May 2016: The remaining part of the multiplier is 7.73; ie 16.91 less (2.08 + 0.4 + 4.7 + 2).
66. Mr Lambie's income would have been £5,163. Mrs Beesley would be entitled to a state pension of £64.69 per week (or £3,373 per year).
67. The annual loss during this period is as follows:

Mr Lambie's annual income: £5,163

Mrs Beesley's annual income: £3,373

Joint income: £8,536

Dependency ratio of two thirds: £5,691

Less Mrs Beesley' s income (£3,373): £2,318

68. The loss in this period is therefore: 7.73 x £2,318 = £17,918.

The total loss of future income dependency is therefore £70,953.

Past services dependency

69. Mr Lambie was a builder and decorator. He was adept at DIY and in maintaining his home, which was substantial, having five bedrooms, two reception rooms and three bathroooms. He decorated inside and out. He fitted the kitchen. He completed all the plumbing. He tended to the large garden of 3 acres.
70. It will now be necessary for Mrs Beesley to pay for these services.
71. A number of invoices and receipts were produced to show the cost of this type of work. No separate claim was made for these individual items as they were put forward as evidence of the type of work anticipated. The Claimant submitted that the receipts demonstrate that an estimate of £3,000 per annum is reasonable.
72. The Defendant submitted that the £3,000 figure was not substantiated by the evidence. Although invoices had been disclosed for gardening work totalling £900 per annum the remainder of the disclosed invoices were for one-off items of building work which cannot be relied on as representing annual maintenance costs, or as a fair valuation of Mr Lambie's services.
73. Whilst it is correct that the building work invoices produced were for one-off items, with a house of this size there would be likely to be one-off items needing to be dealt with each year as part of general maintenance. In addition, there was the substantial garden to tend to. In my judgment, the appropriate annual figure to be taken for these services is £2,000.
74. Mr Lambie could not provide these services from the onset of his illness (June 2005). This pre-death element is not strictly a dependency claim, but it is convenient to include it here.
75. For past loss, I agree with the Claimant that the appropriate multiplier would be 3.5 years. The loss is therefore 3.5 x £2,000 = £7,000.

Future services dependency

76. Mrs Beesley accepts that Mr Lambie may not have carried out these tasks for the whole of his remaining life. But he had no other medical problems and he was fit and healthy prior to the onset of the illness.
77. I agree with the Claimant that it would be reasonable to assume he could continue providing these services at this rate until the age of 75 and at a steadily reducing level thereafter, and that in all the circumstances a multiplier of 10 would be fair and appropriate.
78. The loss is therefore: 10 x £2,000 = £20,000.

Loss of intangible benefits

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 E.R. 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 p29047 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.

Conclusion

87. In the light of my rulings set out above and the already agreed figures, the damages to be awarded (excluding interest) are as follows:




LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934
1. General damages:	£72,000
2. Funeral expenses:	£1,790
3. Travel expenses:	£550
4. Cancelled holiday:	£3,682
5. Clothing:	£100
6. Miscellaneous expenses:	£2,027
7. Sundry expenses:	£750
8. Care and assistance:	£25,000
9. Loss of earnings:	£13,500
FATAL ACCIDENTS ACT 1976
10. Bereavement:	£10,000
11. Past loss of income dependency:	£13,501
12. Future loss of income dependency:	£70,953
13. Past services dependency:	£7,000
14. Future services:	£20,000
15. Loss of intangible benefits:	£2,000
Total	£242,853