Mesothelioma Update - Andreou v S Booth Horrocks and Sons Ltd
On 13 January 2017 Her Honour Judge Walden-Smith gave judgment in the case of Andreou in the Queen’s Bench Division.
The claimant brought a claim against the defendant alleging exposure to asbestos whilst employed as a heating and plumbing engineer between 1960 and 1965. This role included mixing asbestos cement, cutting asbestos rope and pipes and sweeping up asbestos dust. Liability was admitted and the trial concentrated solely on quantum.
The court assessed various heads of damage at the trial, including pain, suffering and loss of amenity, aids and equipment and the claimant’s lost years claim - but adjourned a claim for lost services until after the claimant’s death.
The claim for services was pleaded on the basis the claimant grew food on his own land and but for the mesothelioma, the claimant would have continued to provide this service to his wife. This aspect of the claim was valued in the sum of £203,000. The defendant argued the services claim should be dealt with immediately or dismissed. The judge disagreed and held the services claim was a valid head of loss and should be adjourned until after the claimant’s death.
The judgment is controversial. It is well established law where a claimant brings a claim in their lifetime, the claim should not include a claim for loss of services dependency. That head of loss is only valid in a claim brought by the deceased’s dependents after death. By adjourning the services claim, the court has effectively ignored the decision of the Court of Appeal in Phipps v Brooks Dry Cleaning Services Limited where the court held:
‘The claimant has not lost anything of value in performing work which would save him expense which he will never incur … insofar as anything can be recovered in respect of inability to do DIY … during the lost years, this is loss of amenity and falls to be taken into account in general damages to a modest extent.’
It is common for claimants to pursue a claim in their lifetime, often with a more favourable claim for lost years than would be the case for an income dependency claim passed to their dependents on death. This is at the expense of a services dependency claim.
The decision in Andreou appears to permit a claimant to ‘have their cake and eat it’ where a lost years claim has been secured and the services dependency remains a live issue.
This muddies the waters between a claimant bringing a claim in their lifetime and a dependency claim under the Law Reform (Miscellaneous Provision) Act 1934. As matters stand, the case and the parties have been placed in a legal limbo / no man’s land. If the services part of the claim is stayed and the claim has not yet concluded – can a claim for bereavement and funeral expenses also be tagged onto the claim once a claimant dies? These heads of loss are also normally reserved for claims brought after death.
When the full judgment is available Keoghs will provide a further update. In the meantime, please address any queries to Darrell Smith or Steve Gowland.
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