Harry Steinberg QC and Patrick Kerr obtain highest ever PSLA award for mesothelioma in case which sees the return of intangible benefits

Grant v Secretary of State for Transport [2017] EWHC 1663 (QB)

Harry Steinberg QC and Patrick Kerr acted for the Claimant in this quantum-only fatal mesothelioma case in which judgment was handed down last Friday by Martin Chamberlain QC, sitting as a Deputy High Court Judge.

The following key points are of particular interest:

  • £92,500 was awarded in respect of general damages for PSLA (this is believed to be the highest ever award for mesothelioma in England & Wales).
  • The case marks the return of intangible benefits, as the Judge awarded £2,500 in respect of this head of claim in a departure from the recent case of Mosson v Spousal (London) Limited.
  • In respect of funeral expenses, the Judge held that the cost of the headstone was recoverable but declined to make an award for the cost of the reception.
  •  An award was made in relation to a difficult claim for future income dependency.

 

Mr Grant was exposed to asbestos in the course of his work at the British Railways Board between 1959 and 1960. He contracted mesothelioma in around July 2011 and died in November 2014, aged 70. The Claimant was his wife, with whom he had lived for 38 years at the time of his death.

The Judge awarded £92,500 in respect of general damages for pain, suffering and loss of amenity. Although many of the symptoms suffered by Mr Grant were typical for mesothelioma, the Judge held that the following five factors justified an award towards the top of the bracket:

  1. The duration of the symptoms (40 months) was unusually long.
  2. There were three courses of chemotherapy, with extremely unpleasant side-effects including hallucinations.
  3. Mr Grant suffered breathlessness, intermittent pain and night sweats before 2014, from January 2014 he was prescribed morphine, and from July 2014, he reported severe pain.
  4. Between July and November 2014, Mr Grant was doubly incontinent and suffering from pain which was not adequately controlled by medication and was incapacitating.
  5. His significant concern surrounding the Claimant’s financial security after his death.

Following a detailed review of the authorities, the Judge held that it was appropriate to make an award for the loss of intangible benefits. A key part of his reasoning can be found at paragraph 108 of the judgment:

Third, there is a separate reason why an award for services dependency, calculated by reference to the cost of replacement services, may be inadequate to value the loss of the deceased’s services. A wife whose husband used to do all the minor repair work around the house now has to find and choose the painter, plumber, decorator et al. and make the arrangements for them to come and do what needs to be done. These are things she did not have to do before. The time spent by the claimant in doing them has a pecuniary value. That was the basis for the awards made by Hamblen J in Beesley and by HHJ McKenna in Wolstenholme. The difficulty of assessing that value precisely accounts for the modesty of the awards generally made under this head. It does not, however, transform the award from (permissible) compensation for pecuniary loss to a form of (impermissible) solatium. With respect to Garnham J, I do not see why the ordinary activities of family members other than the deceased would be less affected if DIY is done by outside contractors than if done by the deceased himself. Garnham J was no doubt correct to point out that work done by a commercial contractor might be of better quality than that done by the deceased, but that would not necessarily be so. In any event, a services dependency award is, or should be, valued by reference to the cost of replacing the lost services on a like-for-like basis. There is no reason to assume that such awards generally confer a pecuniary advantage on claimants such as to justify a refusal to compensate for losses – real, albeit difficult to assess – of the kind identified by Hamblen J in Beesley and HHJ McKenna in Wolstenholme.

It was accepted that Mr Grant had carried out the decorating, gardening and a small amount of DIY. Since his death, the Claimant had lost the convenience of not having to arrange for such work to be done commercially. This convenience had a modest pecuniary value, which the Judge assessed at £2,500.

In relation to the claim for funeral expenses, the Judge held that the House of Lords’ decision in Gammell v Wilson was authority for the proposition that the cost of a headstone was in principle allowed a part of the claim for funeral expenses, and accordingly an award was made in respect of this loss. As to the claim for the cost of the funeral reception, the Judge reviewed the relevant cases (Gammell v Wilson, Knauer v MOJ and Mosson v Spousal (London) Limited), which, although first instance decisions, he had to follow unless convinced they were wrongly decided. He held that because receptions are not always held after a funeral, and when they are held, there is no invariable practice of providing refreshments, it was difficult to suppose that Parliament intended to include them within “funeral expenses” under the Law Reform (Miscellaneous Provisions) Act 1934. Accordingly, he was not convinced that the decisions were wrong, and he declined to make an award.

The highest value element of the claim was for future income dependency in respect of the development of a 20-acre site Mr Grant had purchased over 20 years prior to his death with the long-term intention of turning it into a business and retail park. The Defendant disputed the claim in its entirety. At the time of Mr Grant’s death at the age of 70, planning permission had not yet been obtained. Notwithstanding these potential difficulties, the Judge determined that Mr Grant, who had “energy, drive and propensity for hard work”, would have made a success of the development, albeit with the assistance of professional advice.  What value his contribution would have been was open to debate, but he would have added value. Accordingly, this was a compensable head of loss in principle. The calculation of this head of loss has been adjourned to allow for further submissions.