Patrick Kerr successfully argues novel damages point in living mesothelioma case

Stelios Andreou v S. Booth Horrocks & Sons Limited [2017] EWHC 174 (QB)

Patrick Kerr of 12 Kings Bench Walk, instructed by Harminder Bains, a partner at Leigh Day, appeared on behalf of the Claimant at the two-day trial heard last month in the High Court in front of HHJ Walden-Smith (sitting as a High Court Judge).

Mr Andreou is a living mesothelioma victim who had worked for S. Booth Horrocks & Sons Limited between 1960 and 1965 as an apprentice plumbing and heating engineer, where he was required to work with asbestos. In 2016 he was diagnosed with mesothelioma.

Judgment on liability was obtained at an earlier stage in proceedings and the matter proceeded by way of assessment of damages. Mr Andreou underwent a right thoracotomy, pleurectomy and decortication, a drastic surgical procedure where his pleura was stripped out from around his lungs, and his diaphragm and pericardium were replaced with synthetic materials. Following the surgery, Mr Andreou had acute renal failure, with an unpleasant array of side effects including abdominal pain, vomiting and nausea. He also had chest drains inserted. One week before the hearing, Mr Andreou found out that the cancer had spread to his peritoneum. He also had the common mesothelioma side effects of weight loss, appetite loss, breathlessness, chest infections and lethargy.  Overall, his life expectancy was reduced by about 5 years. PSLA was agreed at £90,000.

The main areas of dispute at the hearing were the claim for past expenditure on aids and equipment, and the claim for lost years.

Prior to the hearing, Mr Andreou had installed a lift in his home at a cost of £84,000, so that he could move between the floors of his house. The defendant argued that this was an unreasonable purchase, and only the cost of a stair lift should be awarded. It was held that there was a balance to be struck, and that the claimant must act reasonably. Whilst the claimant was not obliged to take the cheapest option, he was not entitled to the world (Pankhurst v White [2009] EWHC 1117 (QB)). The Court found that in this particular instance, the lift was not a reasonable purchase, as it was disproportionately expensive given the short period of time for which it would be used; and there was no obvious additional benefit to Mr Andreou, over and above what could be provided by a stair lift (Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB) and A v University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB) considered).

Regarding lost years, however, Mr Andreou was awarded £177,189.52 for lost income in the years following his death. The multiplicand was calculated by averaging Mr Andreou’s income over the past five years. Whilst Mr Andreou was too ill to give live evidence, there was still more than sufficient documentary evidence to come to this conclusion.

Mr Andreou also claimed £14,019.20 for lost services he would have provided but for contracting mesothelioma. This head of loss would not usually be recoverable in a living mesothelioma claim but it was contended that in the event the Defendant contested it, this aspect of the case could be adjourned until after his death; and there could be no dispute that it was recoverable by his estate. The Defendant contended that as Mr Andreou had chosen to bring his claim now, he had opted to forgo this head of loss to which his estate was undoubtedly entitled.  The Court, however, decided that it would not be fair or right to prevent Mr Andreou from claiming this head of loss purely by virtue of bringing the claim before his death.  As such, it was content to adjourn this loss until after his death.

Accordingly, Judgment was given in the sum of £312,441.59 for all heads of loss, save for the lost of services which has been adjourned until after the death of the Claimant.