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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HH Judge Anthony Thornton QC
(sitting as a deputy judge of the High Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 August 2010

HH Judge Anthony Thornton QC:

A. Introduction

1. The claimants are the daughters of the late Mr James Wilson who died on 7 March 2007 aged 75 and they are the executrices of his estate. Mr Wilson died of mesothelioma or lung cancer which he had contracted as a result of his exposure to asbestos when he had worked for the defendant in the early 1950s as a boiler erector at Dartford power station. The estate brought proceedings against the defendant claiming damages under the Law Reform (Miscellaneous Provisions) Act 1934 and they also included claims under the Fatal Accidents Act 1976 on behalf of the deceased's children, grandchildren and great-grandchildren. Judgment was entered for all claims on 20 July 2009 by order of Master Eastman with damages to be assessed. This judgment relates to the assessment of two remaining issues as to damages.
2. Mr Wilson left school when he was sixteen in 1947. He worked for two years and then did his National Service. On being discharged in 1951, he worked for about eighteen months for the defendant at Deptford Power Station erecting new boilers in the close vicinity of laggers who were knocking off old asbestos lagging from adjacent pipework and then spraying replacement asbestos lagging onto those exposed surfaces. Both the asbestos removal and the mixing of asbestos paste for use as replacement lagging created clouds of asbestos dust which Mr Wilson would have inhaled. Furthermore, he had to cut sheets of asbestos out of slabs of newly made asbestos sheeting with a handsaw in order to make asbestos covering for the new boilers that he was helping to erect. He was, in consequence, continuously exposed to the danger of inhaling asbestos dust whilst working at this Power Station. Throughout the time that he was working there, he was neither warned by his employer of the dangers of this exposure nor was he provided with respiratory protection.
3. In the following five years, Mr Wilson worked for two different erection companies. He then had a number of short-lasting jobs before working for London Transport for four years. Finally, from 1972, he worded for twenty four years as a postman before retiring in 1996.
4. In 1982, following a review of his hypertrophic cardiomyopathy, it was noted in his medical records that he had asbestos plaque disease. He was not informed of this diagnosis and no-one appears to have considered it or acted upon it. Mr Wilson did not first experience anything that could be linked to his exposure to asbestos dust until July 2006, when aged seventy five, he started to have niggling chest pains. He was admitted to hospital as an emergency and was given a chest X-ray which revealed pleural thickening on the left side of his lung. He was then discharged for outpatient follow-up. He was given a CT scan on 24 July 2006 which identified pleural effusion and calcified pleural plaques and possible mesothelioma on the left lung. He was admitted to the London Chest Hospital, which is part of the Barts and London NHS Trust, on 9 August 2006, with a view to mediastinoscopy but was discharged two days later to await a mini-thoracotomy. He was readmitted to the London Chest Hospital on 27 August 2006 and a mini-thoracotomy was performed. This involved a pleural biopsy, a chest drain and pleurodysis. He was diagnosed as suffering from left sided malignant mesothelioma of the epithelioid type and he was discharged from hospital and returned home on 5 September 2006.
5. On 14 September 2006, Mr Wilson was reviewed by Professor Barnes at the London Chest Hospital who explained to him that his illness was both inoperable and terminal. This diagnosis was provided to him in the presence of his daughter Ms Catherine Drake and a McMillan Nurse from Macmillan Lung Cancer Nursing Services ("MLCNS") which is part of the London Chest Hospital. Professor Barnes referred him to the Oncology Clinic at St Bartholomew's Hospital for possible radiotherapy.
6. The prognosis that Mr Wilson had received and the gradually increasing pain, tiredness and medication that he was prescribed had a profound, permanent and devastatingly detrimental shock on Mr Wilson. He had had no previous inkling that he had been at risk of an asbestos-related disease nor that he was suffering from lung cancer and he never recovered from the shock, anger and disorientation caused by the realisation of his condition that had been caused by inhaling asbestos dust. His illness rapidly led to increasingly acute pain, breathing difficulties, appetite and weight loss, anxiety, fearfulness, physical and emotional suffering and sleeping difficulties. These he suffered with growing intensity for the remaining seven months of his life.
7. On 4 October 2006, Mr Wilson started a course of radiotherapy to his left chest wall which was completed on 16 October 2006. Although chemotherapy was considered, he was too ill for this treatment to be started, particularly given his appetite and weight loss. He appeared to respond to a course of steroids but his health never improved sufficiently for the proposed chemotherapy treatment to be started.
8. On 6 October 2006, Nurse Sue Morgan of the MLCLS alerted Mr Wilson's General Practitioner to his sleeping difficulties and panic attacks and she summarised his symptoms. Nurse Morgan also referred him to the Tower Hamlets PCT district nurses, to Tower Hamlet's Social Services and to the Department of Community Palliative Care ("DPC") which is part of St Joseph's Hospice, Hackney, London, E8 ("St Joseph's") on 12 February 2007. The referral requested all three services to assess him.
9. Mr Wilson had been widowed in 1976 and had lived on his own in his Local Authority flat in Tower Hamlets, London, E14 ever since. Following his discharge from hospital and until he was admitted to St Joseph's on 12 February 2006, he was cared for at home on a twenty-four hours a day basis by his two daughters, Ms Catherine Drake and Ms Tina Starkey, with assistance from one of his granddaughters, Ms Natasha Wilson. His medical needs were attended to by his General Practitioner and general support and advice was provided by occasional visits from outreach staff from the DPC and by the district nurse during home visits. Social Services provided him with a bath aid to assist him in bathing.
10. Mr Wilson was, until he died, a virtual recluse as a result of his loss of the will to see anyone except Catherine, Tina and Natasha, or to socialise. He was not prepared to see any of his other seven grandchildren or four great-grandchildren despite his love of, and his previous regular contact with, all those members of his family.
11. Both his daughters live in separate houses in Dagenham, Essex. Catherine Drake is separated and has four children. Tina has three children, the eldest being Natasha, and she is also the full-time carer of her grandson, Callum Wilson, who lives with her and who was seven when his grandfather died.
12. Catherine effectively moved in with her father, sleeping in the flat every night and only leaving the flat for her part-time evening job and to return home for fleeting visits. Tina would arrive in the late afternoon and stay until about 10.30pm when Catherine returned. Natasha made frequent visits during which she took over Mr Wilson's care from her mother.
13. Mr Wilson had been an outgoing and very sociable person throughout his life and particularly during his retirement. He was transformed overnight on receiving his terminal diagnosis into an angry, bitter and reclusive person. He was in constant and increasing pain despite the painkilling and other medication that he was prescribed which he was reluctant to take without the firm insistence of his daughters. He became an insomniac and Catherine used to sit with him long into the night for company and solace. His breathing became difficult which heightened his sleeplessness because of his fear of never waking up if he fell asleep. His family carers provided a full range of care for him. They provided him with assistance with his personal care and hygiene, washing, bathing, dressing, cooking, household chores and general assistance, care and companionship as well as providing such emotional support as they were able to.
14. He visited as an out-patient or was visited by members of the DPC on eight occasions. He was initially assessed on 17 October 2006 by a DPC Clinical Nurse Specialist and a drug chart was prepared listing all his prescribed medications. Following that assessment, the DPC prepared a palliative care plan for Mr Wilson that involved home visits on an approximately weekly basis by a DPC team member to provide symptom control and medication intake advice, emotional support and assistance with his claims for both compensation and for Attendance Allowance. This care plan was monitored at the relevant team's weekly multi-professional meetings that are always held to review the physical and psychosocial needs and current care of patients being provided with home palliative care.
15. It is clear from the evidence of Mr Wilson's two daughters that it became more and more difficult and stressful for them to provide care and support for their father. The twenty four weeks during which terminal decline at home continued were a great strain for his daughters and granddaughter and their health began to suffer.
16. By 12 February 2007, Mr Wilson was constantly struggling to breathe, he was highly anxious, distressed, agitated, exhausted and weak. On 12 February 2007, a member of the Department's team working with Mr Wilson submitted an urgent request for his admission to the Hospice at St Joseph's. His current problems were described as being very agitated with a possibility of this being indicative of his terminal condition, struggling to breathe, exhaustion, weakness and a lack of sleep and eating for the previous three days. Mr Wilson was immediately admitted to the Hospice were he remained for twenty three nights until his death on 7 March 2007.

The Hospice Claim

(1) St Joseph's Hospice

17. St Joseph's is a foundation of the Religious Sisters of Charity Charitable Trust. It principally serves the London Boroughs of Hackney, Newham and Tower Hamlets and its overall catchment area covers about two million residents within the Greater London area. St Joseph's provides specialist palliative care for people who are terminally ill and for whom curative treatment is no longer possible or appropriate. This activity is provided in a number of complimentary ways. In 2007, St Joseph's provided inpatient care in the Hospice for 640 different patients enabling those patients to die in as comfortable and caring manner as possible. St Joseph's also had a Day Hospice which provided day care for 120 patients including general therapy, creative activities and outings to places of interest. St Joseph's also provided the Wellspring Hollistic Care Centre where complementary therapies including aromatherapy, reflexology, massage and acupuncture were provided. St Joseph's also provided the separate DPC which provided home-based assessments, monitoring, advice, emotional support and comfort for the terminally ill in teams of trained professionals who were both employed and voluntary. The teams provided this palliative care in home visits to the patients and their carers by one or more members of the team and the care was monitored during the weekly team multi-disciplinary meetings. In 2007, 559 patients were assisted in this way. Finally, St Joseph's provided specialised bereavement services for adults and children.
18. The inpatient service and the Day Centre, Hollistic Care Centre and DPC service were separate and discrete services, albeit administered together so as to provide seamless palliative care for patients whose terminal condition had first come to St Joseph's attention. St Joseph's allocated all support costs between each activity on the basis of the ratio of the direct costs of that activity to the cost of all St Joseph's activities. The largest activity was inevitably the inpatient Hospice activity and four-fifths of St Joseph's costs were allocated to inpatient care.
19. When the health, pain levels and support needs of one of the DPC's patients reaches the point when it was no longer possible, appropriate or practicable for the patient to remain at home, the patient was, subject to available space in St Joseph's inpatient facilities, admitted to the Hospice as an inpatient to enable that patient to be cared for in an appropriately understanding and sensitive manner until his or her death.
20. Patients for any of St Joseph's services were referred by hospitals, PCTs, General Practitioners, carers and relatives and if a patient's assessed level of need for palliative care demonstrated a need for any of its services, that patient would be provided with appropriate care subject to availability. There was no discrimination or preference for those of any particular race, creed or background although patients must have had some connection with St Joseph's catchment area. No patient was charged for any service and no fee was accepted. It was envisaged that those provided with outpatient or Day Hospice care would be provided with inpatient Hospice care once their condition had deteriorated to the point where such care was necessary.
21. St Joseph's Hospice is a Foundation of the Religious Sisters of Charity and a registered charity. It is, therefore, not incorporated and its legal personality is that of a trust that operates through its trustees. It has a close working relationship with the nine PCTs located in its catchment area. Many of the patients cared for by St Joseph's, including Mr Wilson, were referred by or through these PCTs. Each of the nine PCTs made a donation to St Joseph's through service agreements and the total sum donated in this way in 2007 constituted £4.2m of St Joseph's total expenditure on its provision of palliative care. There was no evidence that these service agreements provided a PCT patient with any preference or favoured status and the sums paid through these agreements were in the nature of lump sum charitable donations or grants which did not appear to be tied to an obligation to provide palliative care to any particular patient or to constitute payment for any such care.
22. St Joseph's has built up an appreciable endowment and investment portfolio over the years from grants, gifts, donations and legacies. As a result, it funded its activities, on which it spent £10.6m in 2007, by means of legacies totalling about £7.2m, donations totalling about £1m, investment income totalling about £700,000 and statutory grants and PCT payments totalling about £4.3m. The surplus of income over expenditure was transferred to reserves.
23. The evidence provided by Ms Marina Phillips, the Deputy Chief Executive of St Joseph's, showed that the average daily cost of in-patient palliative care was about £612 and that of a home visit was about £2,103. The claim advanced on behalf of St Joseph's by the claimants was for the net average cost of one home visit. There had been ten such visits but the claim has been limited to the equivalent of one such visit to avoid a potential overlap with the claims for personal care support made by the Estate on behalf of Mr Wilson's three family members which the defendant has admitted. The Estate's principal claim is for the assessed appropriate cost of Mr Wilson's twenty-three days of in-patient care.
24. The palliative care delivered by St Joseph's was provided by a large staff of employed professionals, both full-time and part-time, in a wide range of relevant disciplines and by a core of over 1,000 volunteers. A significant number of the employed staff were trained nurses and other similar care professionals and there were a number of qualified medical staff. Other employed staff included dieticians, chaplains, occupational therapists, physiotherapists, psychosocial counsellors and support staff of various kinds.
25. The claim was based on 62% of St Joseph's running costs for 2007, being the percentage of such costs that was not funded from the donations made to it by the donor PCTs. In consequence, the claim is made up as follows:

23 days in-patient care @ £379 per day:	8,717.00
1 episode of community care:	1,304.00
Total:	£10,021.00

26. No pressure was placed on a patient or his or her family to make payments to the Hospice but many patients and their families provided legacies and donations to St Joseph's on a voluntary basis. These voluntary donations to St Joseph's were unsolicited and were freely made in recognition of the care, support and respite from physical and emotional pain that their loved one has experienced. These donations, however, only covered a proportion of St Joseph's running costs and were made out of a sense of moral duty and in gratitude and in memory of the deceased with whom they had a family or personal connection.
27. In this case, Mr Wilson's family wish to make a donation for these reasons. They have very limited resources to make a claim from their own resources and they are making this claim against the defendant having been advised by the solicitor acting for both the Estate and the dependants that the sum claimed, being the notional discounted cost of care, is recoverable from the defendant. The family have made it clear that any recovery under this head will be paid immediately to St Joseph's.
28. The basis of this claim is that Mr Wilson was provided with essential palliative care which it was both reasonable and necessary for him to receive given his terminal decline in health as a direct result of the malignant mesothelioma for which the defendant is wholly and directly responsible in law. This care involved essential home visits by a range of specialist medical and non-medical trained staff and, once his health had deteriorated, twenty three days of in-patient care so as to enable his last days to be as comfortable, supported and pain-reduced as possible. This home care and support is similar to the care and support for which a claim is usually made on behalf of family members. The inpatient care and support, being entirely palliative, is of a similar kind albeit that it is provided in an institutional setting and at an intensity and skill that home carers would be incapable of providing. This support is, therefore, also of a kind provided by residential care homes, hospitals and other similar institutions albeit that the care is not intended to heal but to be a palliative to the terminal condition of the Hospice's patients.

...2) The basis of claim

29. The type of claim that is made for hospice care is novel and one which is not covered by any reported authority that counsel were able to find. Mr Wilson's Estate advances this head of claim as being one which falls within the head of recoverable loss usually referred to as medical, nursing and other care costs. The Estate contends that this claim is directly analogous to claims that are now accepted as being recoverable that are made by claimants from tortfeasor defendants for the recovery of compensation on behalf of relatives who have provided gratuitous care to the claimant in order to alleviate the consequences of tortiously inflicted injuries.
30. Although not claimed as such, this head of claim is also closely related to claims for hospital and other institutional costs and expenses and to claimants' claims that a defendant should not be permitted to deduct from recoverable damages the savings otherwise arising from the gratuitous third party charitable provision of services to the claimant.

(3) Recoverable gratuitously provided medical, nursing and other care costs

31. It is now clearly established that a claimant suffering injuries or disease that have resulted from a defendant's tortious acts may recover the cost of being cared for or nursed by a family member whether or not the carer had contracted to provide those services. If the care was subject to a contractually enforceable agreement, the agreed cost, or a reasonable cost where no sum or rate was agreed, may be recoverable. If the services were provided gratuitously, the court assesses and awards a reasonable sum.
32. This head of claim is the head under which a claim was advanced and accepted for the services of Mr Wilson's two daughters and granddaughter who helped to nurse and care for him at home between September 2006 and February 2007. In order to ascertain whether it can be extended to cover the residential and non-residential palliative care provided gratuitously by a charitable hospice foundation involves ascertaining the principle upon which the courts accept this head of claim as being recoverable. Unfortunately, it is difficult to discern a clear principle.
33. The head of claim was finally confirmed by the House of Lords in Hunt v Severs^[1]. Lord Bridge, who gave the only full speech, stated:

"The law with respect to the services of a third party who provides voluntary care for a tortiously injured claimant has developed somewhat erratically in England. The voluntary carer has no cause of action of his own against the tortfeasor. The justice of allowing the injured claimant to recover the value of the services so that he may recompense the voluntary care has been generally recognised, but there has been difficulty in articulating a consistent juridical principle to justify this result."

Lord Bridge did not more clearly define the characteristics of a member of the class of "voluntary carers" or the nature of the "voluntary care" that he was referring to. He did, later in his speech, state that:

"… the law now ensures that an injured claimant may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family^[2]."

However, he was dealing in that passage with a comparison between the law in England and in Scotland. Whereas the former had recognised recompense for voluntary carers for some years, the latter had only recognised recompense for voluntary carers of any description when Part II of the Administration of Justice Act 1982 had provided for such recompense to those family members that were expressly defined in that Act. Thus, although it is clear that Lord Bridge was intending to include spouses and other family members within the class of those for whom a claim may be made, he was not intending those particular relationships as being the sole or necessary conditions of membership.

34. This type of claim had first been recognised, at least in the established law reports, in Roach v Yates^[3] as the means of recompensing a wife and sister-in-law who had both given up paid work to care for the claimant who had been rendered a helpless invalid. The subsequent cases were concerned with care provided by spouses, other blood relatives, informal relations and friends. This head of claim has been variously described. Thus, it has been stated to be available for care provided gratuitously by "relatives or friends of the claimant^[4]" or by "gratuitous carers^[5]" or for "services rendered voluntarily by a third party^[6]" or for "needs … supplied … by a charitable contribution to [the claimant] from some other person whom we shall call the 'provider'^[7]"
35. The precise nature of the services being provided for which recompense may be claimed is not clearly defined in the authorities. These deal in the main with general unspecialised care provided voluntarily or gratuitously. In one case, the care that was recompensed was nursing care provided by the claimant's wife, a qualified nurse, who gratuitously provided the equivalent of two nurses' care^[8]. Furthermore, the authorities all discuss the care in terms of personal care. There is no reported decision which considers the provision of gratuitous care by a charitable organisation or foundation. Equally, the authorities do not appear to rule out such care as counting for recovery in an appropriate case.
36. It should also be noted that recompense has been provided for care provided by a paid helper which had previously been provided gratuitously by a family member. In Daly v General Steam Navigation Co Ltd^[9], the Court of Appeal was prepared to award a claimant housewife damages to compensate her for her reduced ability to undertake housekeeping and similar work in the home. Had she employed cleaning and related services, she could have recovered the cost of obtaining that provision. In fact, she had not employed such services and she was not awarded, as general damages, anything to recompense her for her loss of her ability to perform these services in the period between her accident and the trial. However, the Court of Appeal allowed an appeal from the judge's refusal to award her general damages for the future for such loss. The basis of this award was that she should recover the estimated cost of obtaining the necessary help in the future.
37. This head of claim concerned with care provided in the home should be compared with a related head of claim for the recovery for medical and institutional caring services outside the home and with the way that the courts treat charitable gifts and services provided to a claimant. The relevant principles grounding recovery in such case may be summarised as follows:

(1) A claimant may not recover for facilities provided without charge by the National Health Service since he is entitled to receive these services on that basis. However, he may recover the cost of paying for such services and does not have to prove that the decision to opt for private health care was reasonable^[10].

(2) A claimant may not recover for institutional care provided by a Local Authority where that care is required as a direct and foreseeable consequence of the injury for which compensation is being claimed if that care is provided free of charge. However, to the extent that payment is required, that or cost may be recovered^[11].

(3) A tortfeasor must compensate the NHS for the cost of treatment in NHS hospitals for treatment for injuries and disease caused by a tortfeasor and for ambulance charges incurred in connection with such treatment. The scheme for such compensation is the Injury Costs Recovery Scheme which was set up under the provisions of the Social Care (Communities Health and Standards) Act 2003. This scheme came into force on 29 January 2007 and it requires payment of a fixed sum per day of treatment or ambulance journey that is fixed for by a statutory tariff.

(4) A claimant may keep, without deduction from the damages that would otherwise be awarded, any sum paid to him by a private individual, company or charity as a mark of sympathy and assistance or to cover medical and related expenses. Where the donor expects, whether as a result of a condition of the donation or as a moral obligation, the donation to be refunded if it is recovered as damages from the tortfeasor, the court will award that sum but will impose a trust of it in favour of the donor^[12].

(4) Submissions of the parties

38. On behalf of Mr Wilson, Mr Glynn contended that the services provided by St Joseph's were both gratuitous and charitable in nature and were provided without any obligation imposed on Mr Wilson or his estate to reimburse St Joseph's. Furthermore, the donors of donations or legacies to St Joseph's could be considered as having provided gratuitous help to Mr Wilson in the form of their monetary gifts. Such care was the same or very similar to the care provided by the family members for which recovery is now permitted. The cost, or notional cost of the palliative care provided to Mr Wilson should be recoverable from the defendant and held on trust for the private donors in a trust similar to that provided for in favour of the private gratuitous carers by a court following the decision in Hunt v Savers.
39. On behalf of the defendant, Ms Foster contended that this novel claim was not covered or permitted by authority. The care was not provided or charged for under a contract between St Joseph's and Mr Wilson, it was in the nature of medical care rather than domestic assistance and there is no legislative requirement to make an ICR Scheme payment or any similar payment. Furthermore, the damages, if recoverable in this situation, must be held on trust for the care provider and not for the funder of such care and this type of trust is only available to benefit individuals.

(5) Discussion

40. The first matter that should be addressed is Mr Glynn's submission that the sum to be recovered should be held on trust for the private donors of gifts and legacies to St Joseph's. This submission is both wrong in principle and unenforceable in practice. The principle governing the recovery from tortfeasors for this head of recovery is that the injured claimant may recover the reasonable value of gratuitous services rendered to him by way of voluntary care as compensation to the carer for providing such care. Thus, the compensation is held on trust for the carer. It follows that if the compensation is recoverable at all, it is to be held on trust for, or paid directly to, St Joseph's as the carer and not for the donors of legacies and funds as the donor.
41. However, Mr Glynn's other general submissions have much force. This can be seen if the following summary of the factual position arising from the palliative care provided for Mr Wilson by St Joseph's is considered:

(1) The palliative care provided by both the DPC to Mr Wilson whilst he was living in his flat attended by his daughters and as inpatient care in the days before he died was essentially non-medical care albeit that some limited medical advice and care was provided that was associated with pain prevention and to ensure that prescribed medication prescribed by NHS medics was taken as prescribed. The nursing assistance was also entirely palliative in nature.

(2) The care was charitable in nature, gratuitous and provided without St Joseph's being under an obligation to provide it.

(3) The patients, including Mr Wilson and his Estate, who were provided with palliative care invariably felt a moral obligation to provide, by way of donation or legacy, financial gifts so as partially to recompense St Joseph's for the care it provided. The evidence suggests that Mr Wilson's executrices felt under a similar moral obligation and, on legal advice, accepted that this moral obligation could be partially fulfilled by claiming an appropriate sum from the defendant which they would hold on trust for St Joseph's.

(4) The services provided were similar in nature to those provided by volunteer carers and by institutions providing care services. Had St Joseph's been willing to charge Mr Wilson for such services, that charge was certainly recoverable from the defendant. For charitable reasons, St Joseph's imposed no restriction on who could receive palliative care and for general philanthropic purposes, it operated an open door, non-charging regime with no obligation being imposed on the patients to contribute to its costs.

(5) The defendant would have had to recompense St Joseph's directly, or indirectly via a trust, had St Joseph's charged for its services or if it was an NHS hospital or if it was a private individual carer whether or not related to Mr Wilson. Moreover, Mr Wilson was under no obligation to account to the defendant, by way of a reduction in damages otherwise recoverable, for the value of the services provided by St Joseph's since these were voluntarily provided and charitable in nature.

(6) There is no reasonable basis for distinguishing St Joseph's, a charitable Foundation, from a private individual or from one of Mr Wilson's family members or friends. The services provided were very similar to those provided by such members. The institutional inpatient care was provided because the family members were no longer able to cope and Mr Wilson's condition had deteriorated to such an extent that home care was no longer possible. However, the inpatient care was entirely palliative and was solely directed to making Mr Wilson's few remaining days of life as comfortable and dignified as his declining health allowed.

(7) The only way that care of the kind provided by St Joseph's could be provided was from a hospice and the only available hospice was St Joseph's.

42. Claims for hospice care are inevitably infrequent. They can only arise where a lingering and painful dying period has occurred as a result of illness or injury caused by the actionable acts or omissions of a tortfeasor. Such claims have always been rare. However, they may now become more frequent because it is only relatively recently been possible to recover damages on behalf of a deceased whose lingering and painful death has been caused many years previously by unwarranted exposure to asbestos dust or similarly noxious substances. Recovery of the costs of hospice care in such cases does not give rise to a fear that the so-called floodgates will open or that a new head of recovery has suddenly been opened up. Rather, recovery is consistent with established principles and it is unlikely that there will be a significant number of claims in the future.
43. It follows that a reasonable sum is recoverable from the defendant. The sum that is claimed by Mr Wilson's estate and the basis of calculating it that I have already explained are reasonable. I award a sum of £10,021.00 under this head with interest at an appropriate rate from the date of death on 7 March 2007 until judgment or payment. Although this sum, which is entirely made up of past loss and expenditure, is subject to a trust in favour of St Joseph's, the court may now since the introduction of the CPR direct that a trust need not be established. Instead, the defendant should be directed to pay the judgment sum and interest directly to St Joseph's within fourteen days and to provide the Estate with a copy of St Joseph's receipt of that payment. The order should provide for liberty to the Estate to apply to the Master for directions if the defendant fails to provide that receipt to the Estate.

The Dependents' Claims

44. The dependents who are making claims under section 1 of the Fatal Accidents Act 1976 are his two daughters, his grandson Callum Wilson and his six other grandchildren and four great-grandchildren. All these claimants are dependents. They are entitled to damages if and to the extent that each can show that the loss to each dependent is proportioned to the injury resulting from Mr Wilson's death^[13]. It is now clear that that requirement is established if and to the extent that each dependent can separately prove that they reasonably expected to receive a pecuniary benefit arising from the family relationship and that they would have received it but for Mr Wilson's death. This reasonable expectation test is a judicial interpretation of the archaic and somewhat diffuse wording of the 1976 Act as amended^[14].
45. Catherine Drake. Catherine used to see her father on a regular basis in the years before he died. In particular, she used to go with him on a regular shopping trip each week when each of them would buy food and other needs for the week. Catherine, having four children and being a single mother, was struggling financially. It is clear from her evidence that these shopping trips were undertaken as part of her love and companionship for her father and her wish to spend time with him. The trips were a convenient way for him to do his shopping and, at the same time, to make financial provision for her and her family. Mr Wilson was a proud and considerate man and he clearly regularly provided for Catherine in an unassuming and sensitive way. This was done by his paying for her shopping on most, but not all, of the occasions that they shopped together. They would go to the checkout together and each had their own purchases in separate baskets. At the checkout, he would insist on paying for all, or some, of her purchases. Ms Wilson estimated that this generosity averaged out at about £20 per week. He also liked to speak to her on the phone and invariably provided her with £35 each month towards her mobile phone bill. This gift and other occasional financial gifts "he would give me as money in my hand".
46. These weekly shopping trips had, like many family activities, a self-created routine. Following the shopping, Catherine accompanied her father to a pub, Wetherspoons, where she bought him a pint and his dinner. Sometimes, they would first go to a café for breakfast which she would also buy. This routine was developed on Catherine's part because she, like her father, was a proud and sensitive person and she wanted to make it clear that these outings, although of great benefit to her, were part of the time that they enjoyed spending together and were not undertaken by her as the means of obtaining a weekly payment. She expressed this as being "my way of trying to pay him back." She meant by this that it was her way of showing that she wasn't shopping with her father merely to pick up a cash handout from him.
47. Ms Foster, in her submissions, contended that these payments were not dependency payments but were payments made in return for the provision of services for financial reward. She pointed to the statement made by Mr Wilson in his witness statement that he had made about eight weeks before his death where he stated that he had done all his own shopping and housework before the onset of his terminal illness. However, I do not accept that these payments were no more than remuneration for the provision of domestic services. Instead, I accept that they were made and were made on a regular weekly basis. They were also made in the circumstances described by Catherine. Her father was clearly determined to assist her and her large family on a regular basis and the expression of her appreciation for this generosity was in the form of her buying him a pint and a dinner plate in the pub on the way home. Mr Wilson's statement is consistent with this personal routine that they had developed between themselves.
48. Tina Starkey. Tina's evidence was that she used to visit her father every evening. Whilst there, she would do his washing for him. Mr Wilson was devoted to his large family and clearly spent about one fifth of his disposable net income, being his state pension, on his family. Of this, he gave Tina £20 a week in cash so that his regular payment to each daughter was of approximately the same size. In a paternal routine, he would purport to give her additional cash for Callum Wilson's school dinner money as additional cash which he laughingly described as being paid in return for her doing his washing. It was clear that these payments were gifts and that they were described as remuneration for domestic washing services in the same way that Mr Wilson and Catherine described Catherine's practice of standing her father a pub lunch after their weekly shopping trips as her payback for his buying her food purchases. In other words, the payments to Tina were made as part of his regular generous cash provision for his entire family in general and to Callum in particular.
49. I also accept Tina's evidence that her father on occasion bought her and her family presents for their home such as a new TV. Such items were ones that she could not afford since she, like her sister, was struggling financially.
50. Grandchildren and great-grandchildren. Catherine's evidence, which I accept, is that her father gave each of his eleven grandchildren and great-grandchildren £20 each Christmas and on each of their birthdays. He regularly saw all his dependents and was meticulous in never missing these present-giving occasions.
51. General. It was submitted that Mr Wilson could not have made these regular financial gifts to his dependents since they totalled about £3,271 per annum out of an annual pension income of £11,318 gross or £10,982 after tax. In fact, the claim has been scaled down to 80% of the full claim to take account of the casual nature of the payments that were made. Mr Wilson clearly lived a frugal life outside his family although he was always a sociable and very friendly person. I find that he did make the payments attributed to him notwithstanding the fact that these payments totalled £2,600 per annum and represented about 24% of his net income.
52. Conclusion. Mr Wilson therefore made annual dependency payments of 80% of £1,460 to Catherine, 80% of £1,040 to Tina, 80% of £331.50 to Tina for Callum's school dinner money (being £1.70 x 195 school days) and £40 to each of his eleven grandchildren and great-grandchildren. This totals £2,617.50 per annum. The agreed multiplier is 2.7 years from death to trial and 2.88 for future loss. The resulting total sum that is payable to the dependents is £14,604.
53. The Order. The parties should agree the wording of the necessary order to give effect to this judgment and the order can be made at the handing down. The parties are excused from attending the handing down.

Note 1    [1994] 2 AC 350, HL, page 358G.    [Back]

Note 2    Ibid., page 363B.    [Back]

Note 3    [1938] 1 KB 256, CA.    [Back]

Note 4    Law Commission Report No 262: Damages for Personal Injury: Medical, Nursing and Other Expenses (1999), paragraph 3.44.    [Back]

Note 5    Ibid., paragraph 3.48.    [Back]

Note 6    Per Sir Thomas Bingham MR delivering the judgment of the Court in Hunt v Savers, [1993] QB 815 at page 357. Although the decision that the care provided to the claimant in that case by her defendant husband could be recovered for was overruled by the House of Lords, this statement of the type of care and carer for whom a claim could be made was not commented on adversely by Lord Bridge.     [Back]

Note 7    Per Megaw LJ in Donnelly v Joyce [1974] QB 454, CA. This case was overruled by Hunt v Savers but on the broader principle that the court is rewarding the “voluntary carer” and not the claimant by this type of award. Thus, Hunt v Savers did not close the discussion of who may be a voluntary carer.    [Back]

Note 8    Hogg v Doyle, unreported, CA, 6 March 1991, Kemp on Damages.    [Back]

Note 9    [1981] 1 WLR 120, CA.    [Back]

Note 10    See Peters v East Midland Strategic Health Authority [2009] LS Law Med. 229, CA, [2009] EWCA Civ 145.    [Back]

Note 11    See Firth v Geo, Ackroyd Junior Ltd [2001] PIPR Q4, page 27.    [Back]

Note 12    This is a direct result of the decision in Hunt v Savers.    [Back]

Note 13    Section 3 of the 1976 Act. The original Act, the Fatal Accidents Act 1846, was amended over the years and the resulting statutory collection was consolidated in the Fatal Accidents Act 1976. This statute was in turn amended by the Administration of Justice Act 1982. Much of the wording of the current statutory provisions is taken or derived from the 1846 Act.    [Back]

Note 14    Batt v Highgate Private Hospital [2005] PIQR Q1 and Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1QB 349.    [Back]