Devoy v William Doxford & Sons Ltd & Ors

This is a claim by the Claimant, Carol Devoy, on behalf of the estate of her late husband, Alexander Devoy, under the Law Reform (Miscellaneous Provisions) Act, 1934, and on her own behalf as the dependant of the deceased under the Fatal Accidents Act, 1976, for damages arising from his death. The deceased was employed as an apprentice marine fitter and turner by the First/Second Defendants between 1 February, 1955 and 12 November, 1959, and as an engineer by the Third Defendants’ predecessors, Clan Line Steamers Limited, from 25 August, 1960 to 14 April, 1970. During the course of those employments, the deceased was exposed to asbestos or asbestos dust as a result of which he developed malignant mesothelioma of the pleura, from which he died on 30 January, 2007. Liability was not contested by the Defendants and on 18 January, 2007, judgment was entered for the deceased on the issues of liability and causation and for damages to be assessed. The Claimant was substituted for her late husband in the claim on 25 June, 2007. I am now concerned with the assessment of the damages.

The deceased was born on 21 January, 1939, so that he was just over 68 years old when he died. The Claimant was born on 14 November, 1943, so that she was 63 years when her husband died and is now 65 years old. The deceased had retired from his employment as a chief engineer in the merchant navy in September 1999. The Claimant had moved into the deceased’s house in 1992. She was a widow with two sons, who are now aged about 44 and 37 years. The Claimant and the deceased were married on 18 December, 1999. The deceased was divorced from his first wife and had a daughter, who is now aged about 40 years. Since the death of the deceased, the Claimant has continued to live in their home, a three bedroomed dormer bungalow on the outskirts of Durham.

The Claimant had retired from her work as a secretary for a trade union in March 1996 by reason of symptoms of Parkinson’s disease, from which it was diagnosed she was suffering in May 1998. In addition to the Parkinson’s disease, the Claimant has a kyphoscoliosis of the thoraco lumbar spine, a painful spinal condition causing the Claimant to be stooped. Furthermore, she has osteoporosis. As a result of the Parkinson’s disease and her spinal condition, the Claimant was disabled prior to the deceased’s death, and that disability is progressively increasing. It is the Claimant’s case that, prior to his death, the deceased was essentially her carer, and a substantial part of the present claim relates to the Claimant’s loss of the deceased’s services as her carer and in other respects. Whilst the parties have been able to agree a number of the heads of claim under both the 1934 Act and the Fatal Accidents Act, there is a very significant dispute as to the valuation of the past and future loss of the deceased’s services.

There is agreed medical evidence in relation both to the deceased’s development of and suffering from mesothelioma and the Claimant’s medical condition and disabilities. The Claimant and the Defendants each instructed a care expert in relation to the valuation of the deceased’s care of and services rendered to the Claimant. I heard evidence from those experts and also from the Claimant. There was also a witness statement from the deceased dated 18 September, 2006.

It is appropriate firstly to consider the medical evidence in relation to the deceased, and his witness statement insofar as it relates to the period when he suffered from mesothelioma prior to his death, and to the care and services which he provided to the Claimant.

Dr. Richard Page, a consultant physician, provided a report in relation to the deceased dated 2 November, 2006, namely about three months prior to the deceased’s death. Dr. Page noted from the deceased’s general practitioner’s records that he had had few general medical problems of note. In 2005 the deceased’s doctor diagnosed that the deceased was suffering from asthma. He was prescribed inhalers. On 1 June, 2006, it was noted that he was still wheezy and that the inhalers were not helping him. On 13 June, 2006, he was complaining of an increasing chesty cough and he was sent for a chest radiograph. This was undertaken on 20 June, 2006, and it was noted that there was some abnormal pleural shadowing on the right which appeared quite substantial towards the apex. The appearances raised the possibility of significant pleural disease of which mesothelioma would be a differential diagnosis. He was referred to the North Durham University Hospital for further investigations. In the clinic there, on 18 July, 2006, it was noted that he had been complaining of right sided chest discomfort for several months and mild breathlessness. Malignant mesothelioma was suspected and he underwent a CT scan. It was concluded from the scan that the radiological features were highly suggestive of mesothelioma.

The deceased was informed of the likely diagnosis of malignant mesothelioma on 1August, 2006. He underwent a CT guided biopsy on 17 August, 2006. This confirmed that the deceased had a cancer and immunostaining suggested that this was a mesothelioma.

Dr. Page noted that thereafter the deceased was complaining of right sided chest pain and feeling constantly tired. He became breathless on exertion and was undergoing chemotherapy. The opinion of Dr. Page was that the deceased had development a malignant mesothelioma of the right pleural cavity. He considered that the chest pain, breathlessness and tiredness were attributable to the mesothelioma. Dr. Page considered that, prior to his inevitable death, the deceased would suffer increasing chest pain, breathlessness, weight loss and weakness. His life expectancy would otherwise have been a further 17.41 years.

In his witness statement made in September 2006, the deceased confirmed that he was told on 1 August, 2006, that he was suffering from mesothelioma. He said that he was becoming increasingly breathless on exertion. He found it difficult to cope with long walks, walking briskly, or walking up hills or stairs. He had pains in the right side of his chest, around his right shoulder and back. He was constantly tired. He was unable any longer to do any physical work such as gardening due to the pain in his chest and the tiredness.

The deceased referred to his wife’s disabilities. He described himself as her carer and said that he helped with the heavy shopping and housekeeping.

In relation to the Claimant’s medical condition, there are medical reports and letters from Dr. Young, a consultant neurologist, and a report from Mr. Fender, a consultant orthopaedic spinal surgeon. In his report dated 11 January, 2008, Dr. Young deals with the Claimant’s condition and prognosis in relation to her Parkinson’s disease. He describes the symptoms which she first developed in about 1996. She had a tendency to walk to the right and her eyes were twitching. She complained of a feeling of generalised heaviness and she had slowed down in all of her activities. After the diagnosis, she was commenced on treatment with drugs.

At the time of Dr. Young’s examination, the Claimant said that her condition was getting worse. She had developed fidgety movements affecting her head, face, trunk and upper limbs. She was very slow when first getting up in the morning and had to wait for her medication to take effect. For a few years, she has experienced visual hallucinations, when she sees elves and insects, which are a side effect of the medication. She stated that she was slow in all activities of daily living. She told Dr. Young that she was able to get out of bed unassisted but was slow and it was a struggle, as was getting in and out of a bath. She was mobile around her home, although she held on to furniture and for outdoors she used a wheeled zimmer frame. She said that she could do her own washing but required help with housework and other domestic tasks. Occasionally she had some difficulty with her speech.

When Dr. Young examined the Claimant, he noted that her posture was stooped. Within 30 minutes of his examination, she had developed quite obvious dyskinesia (involuntary movements) affecting her head, face and upper limbs. He noted that when sitting in the chair, she tended to lean to the right and with the involuntary movements slipped down the chair. Her gait was hesitant and she took small steps. There was slight slurring of her speech.

In his conclusions, Dr. Young noted that the L-dopa therapy received by the Claimant for the Parkinson’s disease was very effective in reducing stiffness and slowness of the limbs, but does have serious limitations. After an initial period of several years, the drug becomes less effective with a short duration of action so that the individual experiences deterioration before the next dose. Therefore marked fluctuations in the individual’s condition are not uncommon in this phase of the disease. Thus, one moment the individual may be slow and very stiff and then suddenly the mobility improves, but involuntary movements develop. The term “on-off” phenomenon is used to describe this combination. He considered that the Claimant was now clearly demonstrating this phenomenon. He said that the treatment of Parkinson’s disease at this stage becomes very difficult. Thus he considered that the Claimant is in a very difficult phase of the disease and no improvement in her condition can be anticipated. He stressed that Parkinson’s disease is a progressive disorder. He said that it has to be accepted that the Claimant will deteriorate and although it is very difficult to state the rate of deterioration, he guessed that she might have major problems with her mobility after five years so that she may require a wheelchair for outdoor use. He also anticipated that she will find it increasingly difficult to be independent in the activities of daily living. He thought that she is at risk of falls and would be particularly concerned about her attempting to get in and out of a bath independently.

Dr. Young thought that, over the next five years, the Claimant’s care requirements will increase because she will require help with dressing, personal hygiene and cooking. He thought that it was highly probable that, in five years from the date of his report, that is in 2013, the Claimant will require 24 hour care in her own home or in a residential home. He stated that, as Parkinson’s disease progresses, there is a risk of cognitive impairment which affects approximately 30% of patients, usually after 65 years of age. He further said that her life expectation would be reduced.

In a letter dated 6 April, 2009, Dr. Young expressed further views regarding the Claimant’s life expectancy. He stressed that this was a matter of guesswork in relation to a sufferer from Parkinson’s disease. However, he believed that it would be reasonable to state that the Claimant’s life expectancy would be 20 years from the date of her diagnosis in May 1998. Therefore, the parties have agreed that, in relation to the Claimant’s claim, the Claimant’s life expectancy should be taken as being to May 2018.

Mr. Fender provided a report dated 19 June, 2008, in relation to the Claimant’s spinal condition. He described how the Claimant had had intermittent back pain during her adult life. When she was 60, she had a relatively sudden deterioration in her back symptoms. She was diagnosed as suffering from adult onset idiopathic thoraco lumbar kyphoscoliosis. She was informed that the only definitive treatment for her spinal deformity and symptoms would be by way of complex surgical intervention. It was felt that the risks of such surgery were not justified. Thus, her back condition has been treated with analgesic medications.

Mr. Fender describes the symptoms arising from the Claimant’s back condition. She has pain around the left side of the thoraco lumbar junction and along the right para lumbar muscles. Pain is present most of the time and is aching in character. Pain radiates to both buttocks and she has a burning sensation in the right groin and thigh. The Claimant is comfortable standing for 5 minutes only and at the time of Mr. Fender’s examination she was able to walk with the support of her zimmer frame for 30 minutes. Because she has lost 3½ stone since the death of her husband, there has been some improvement in her back symptoms. Mr. Fender noted that she had marked restriction of movement in her back. He agreed with the diagnosis in relation to the Claimant’s back condition and he thought that her underlying neurological condition had contributed to it. There was also a contribution from degenerative changes throughout the thoraco lumbar spine. He thought that any deterioration in the magnitude of her deformity or the level of symptoms is likely to be either static or very slow. He anticipated that the level of deterioration and need for assistance was minor in comparison with the prognosis provided by Dr. Young regarding the Parkinson’s disease.

In her first witness statement dated 24 August, 2007, the Claimant described the symptoms arising from her medical conditions. In relation to the deceased, she said that before his illness, she was dependent upon him for most things. She said that she still did a small amount of cooking, but that they shared the washing and ironing and used to go shopping together. She was unable to carry anything. The deceased did all the driving and tended to run the errands and he carried out all the DIY and gardening at their home. Because she was not even able to carry anything in the house, she used to rely upon the deceased for this. She said that they went out most days shopping, to hospital appointments or visiting friends. She said the deceased did most of the cooking and she only made simple things. Since his death, her quality of life had deteriorated significantly. She tended only to eat snacks and food that was easy to prepare. She now went out far less frequently.

She described how, when the deceased was alive, they used to go on holiday frequently. They had visited Singapore and Malaysia, Spain and Germany, and France and Portugal. They used to go abroad twice a year and every second or third month they travelled somewhere in Britain. They had been on a six week camping trip to Spain, during which the deceased did most of the driving. She had not been on holiday since her husband’s death other than a day trip on the Orient Express from Newcastle to Chester with his daughter. She said that she would not be able to go on holiday alone. She described how she has had help with gardening from one of her sons and a neighbour. She stated that she required a cleaner. Although she did not like to be dependent on others, she was contemplating that she required a live-in carer.

In her next witness statement dated 13September, 2008, the Claimant said that the deceased had always looked after the garden and they had never employed a gardener. She said that he had a greenhouse and was always pottering around in the greenhouse and garden. She stated that she did not want to go in a home if her condition deteriorates and wanted to remain in her house and live as independently as she could. She said that, if the deceased had still been alive, he would have continued to look after her. She referred to how he had provided some care for his mother, who died in 2005 at the age of 92. She described how the deceased was always on hand in the house or the garden. She described how she and her husband were very close and used to go on a lot of holidays and to jazz concerts together. She conceded that he would probably not have carried out tasks of personal hygiene for her and that it was likely they would have employed someone to deal with that if it became necessary. Again, she was considering having a live-in carer. At that stage she was still able to drive. She described going to the local Parkinson’s group and said that she and the deceased had both been involved with that for a long time. By this time she was having help from a cleaner and a gardener. She said that, prior to his death, the deceased used to do all the odd jobs. She said he was a trained engineer who would turn his hand to anything.

The Claimant made her final witness statement on 30 May, 2009. She described in this how, since 1 December, 2008, she was assisted by a paid carer from Philip Parkinson Homecare. Her first carer, Claire, worked from 1 December until 6 January, since when Melanie has been her carer. Care is provided for a total of 31 hours per week from Monday to Friday at a weekly cost of £438.03. The hourly charge is £14.13. She said she is now getting used to having a carer in the house with her. She no longer needs a cleaner as Melanie undertakes the cleaning. She still receives some assistance from members of her family. Melanie takes her to the Parkinson’s Society, her craft classes and to the dietician. They both go to the cinema once a week. The Claimant said she is now developing more of a social life. She has been seeing the dietician in order to seek to increase her weight. Every Tuesday afternoon she sees her ex-daughter-in-law, who provides her with a meal.

The Claimant described how she had been on a holiday in November 2007 with a friend. They flew to the United States and travelled to San Francisco, Las Vegas and Los Angeles by coach. She paid for the trip. The Claimant no longer has her driving licence as the police stopped her when she was driving erratically and she voluntarily surrendered her licence. She now relies on others for lifts and when she goes out with her carer they go in her car, for which there was a charge of 40p per mile. The Claimant says that she realises she would benefit from having carers for more hours in the evening and at weekends, but that was something she would develop gradually.

In relation to the care which the deceased had provided for his mother, she said that they used to visit her between two and four times a week and that the deceased undertook jobs in his mother’s house and garden, and they both did her shopping. She described how the deceased did not like strangers in the house. Because he had been away at sea for many years, he very much regarded his home as his castle. She said he would have been reluctant to employ a carer. Also, he was careful with his money. She said all of his hobbies were at home and he was at home all day long. It was as though he was trying to compensate for the many years he spent at sea. He did not have friends locally and did not go out to the pub. She said he was always at home and on hand when she needed him.

The Claimant stated that she felt a lot more secure now that she has a carer and had put on weight, she thought because of the cooking that Melanie undertakes. She values the care and support and companionship which Melanie provides.

The Claimant gave oral evidence before me, and I also watched a DVD, about 50 minutes in length, which showed the Claimant at various stages during a typical day, on 25 October, 2008, which was, of course, before she had a carer. That DVD showed clearly the very real difficulties arising from the Claimant’s disabilities, but also showed her determination to cope with her difficulties and to lead as normal a life as possible. At the beginning of her evidence at the hearing, the Claimant gave some more information in relation to the deceased’s illness. She described how he had undergone radiotherapy and chemotherapy following the diagnosis of the mesothelioma. She said those treatments had made him feel sickly and had upset him because he realised that they were not working. Nearer to his death, the tumour, she said, had spread to his brain which made him impatient and quick-tempered. Apparently when he was told of the diagnosis of mesothelioma on 1 August, 2006, he was told that he could expect to live 2 to 2½ years. As a result of that he wanted to do and see everything he could in that period of time.

The Claimant gave some evidence about her present situation. She said that it had helped her to have Melanie caring for her and assisting her. She said at the beginning she did not want a carer because she was so independent, but that she had to accept she did need someone. She and Melanie have become friends and they have a bond between them. She said that sometimes on a Sunday afternoon she wishes Melanie was there as it would make her feel more secure. When she is on her own she sometimes becomes frightened that something might happen to her, like falling over. She thought she would require more care in the future and that she should go ahead and have care seven days a week. At present, when Melanie is not there, she has some assistance from members of her family and from friends. When she goes out with Melanie, for example to the cinema, she pays for both of them and she also provides her lunch.

When she was cross-examined, she was questioned about various statements she was said to have made to Mrs. Maureen Hamilton, the Defendants’ care expert, when she carried out her assessment. The Claimant agreed that it upset the deceased when he was alive to see her with a disability, and for example he would not like to see her in a wheelchair. However, she said, “He still wanted to be there for me.” She agreed that, when the deceased was alive, she was more able than she is now. She confirmed that her husband would not have helped her with personal hygiene and the like, although she thought he may have assisted her with dressing and cutting her toenails. The Claimant can no longer cut her own toenails and will require a chiropodist.

It was put to the Claimant that she had told Mrs. Hamilton that the deceased had a back condition. The Claimant said that the deceased only got back pain if he did heavy gardening or heavy work. She thought that he had never been to the doctors in relation to his back. She agreed that, after her husband’s death, she had had to drive herself, but when he was alive she did very little driving.

The Claimant volunteered some further information about the deceased’s dislike of disability, saying that he had cancelled a holiday because she would have had to use a wheelchair. However, she went on to say that her husband was devoted to her. At times if they were out together, she would use his arm for support. Perhaps a very good indication of the deceased’s true attitude to the Claimant and her disability and his willingness to help her was his reaction in 1998 when she told him of the diagnosis of Parkinson’s disease. She said that she told him he had the choice if he didn’t want to stay with her because of her condition. The deceased told her not to be stupid and to put her engagement ring back on her finger. They were, of course, married the following year.

I was very impressed by the Claimant and her attitude to her disabilities. She is a spirited and determined lady. It is very clear that she and her husband, when he was alive, led as full a life as possible. They did not let her disabilities get in the way of enjoying themselves and going on holidays. I accept all that she has said about the care and assistance which he provided to her. Whilst she is very independent, it is plain that, sensibly, the Claimant realises that she cannot manage on her own any longer and requires a carer and will require additional care in the future.

The expert evidence in relation to the care and services which the deceased would have provided to the Claimant was given by nursing experts: Miss Sheelagh Ward on behalf of the Claimant and Mrs. Maureen Hamilton on behalf of the Defendants. Both are very experienced nursing care experts, although I find that Mrs. Hamilton has rather more experience of sufferers from Parkinson’s disease. Miss Ward prepared two reports dated 30 April, 2007 and 24 September, 2008. Mrs. Hamilton provided a report dated 12 March 2008. The experts provided a joint report dated 13 October, 2008, in which they set out the matters upon which they agreed and disagreed.

The overall approach of Miss Ward in her reports was to carry out a detailed evaluation of the care and services with which the Claimant has been provided since the deceased’s death and the care and services which she will require in the future. It is her view that, had he lived, the deceased would have been able to provide and would have provided for the majority of those needs. Miss Ward carried out detailed costings of the required past and future care and services. Mrs. Hamilton’s approach was a little different. She did carry out an assessment of the Claimant and her care requirements. She questioned the Claimant about what the deceased had done for her prior to his death. She then assessed the number of hours per week for which the Claimant had received assistance from family and friends from his death to the date of her report. She assessed how many hours per week on different tasks the deceased would have provided care and assistance to the Claimant in the future had he lived. She then made a valuation of those hours.

In her first report, Miss Ward stated that the Claimant had confirmed to her that the deceased undertook almost all of the cooking, cleaning, washing and ironing prior to his death. Her report set out the care and assistance which the Claimant had received since her husband’s death. She set out what would have been a typical day prior to the deceased’s illness and death, and a typical day for the Claimant at the time of her first report. She described the various difficulties which the Claimant has. An assessment was made by Miss Ward of the number of hours of past care which the Claimant had received, and the expenses which she had incurred. At that time, Miss Ward considered that the most appropriate means of meeting the Claimant’s immediate future care needs would be by the provision of a live-in carer. She considered that, at that time, the Claimant did not require 24 hour care, although she did need considerable assistance and accompanying outdoors in order to maintain social activities. Miss Ward also identified various items of equipment which she considered that the Claimant required. She provided costings for all of the past and the future care and assistance requirements of the Claimant.

In her second report dated 24 September, 2008, Miss Ward makes reference to the opinions of Dr. Young and Mr. Fender to which I have already referred. She also reviewed the contents of the Claimant’s witness statements. Miss Ward was of the view that the Claimant’s Parkinson’s disease had worsened since the time of her first assessment in April 2007. She updated the care and assistance which the Claimant had received in the interim period. She expressed concern about the Claimant’s weight loss and that she was not having a cooked meal every day, and sufficient nutrition. She was concerned that, as the Claimant’s abilities and mobility decreased, she could become nutritionally compromised and possibly prone to developing pressure sores. She also referred to the fact that the Claimant’s social life had deteriorated since the death of her husband. She made reference to the variety of trips and activities shared by the Claimant and her husband prior to his death. She updated her evaluation of the past care and services.

By the time of her second report, Miss Ward had changed her views about the Claimant’s future care needs. She was no longer convinced that a live-in care package would be the most appropriate model of care for the Claimant. Her view now was that the Claimant would benefit from having a range of carers with different personalities attending in order to provide care. She thought a regular team of carers would provide better continuity of care and enable her to receive a more therapeutic care package, designed to enable the Claimant to achieve her maximum potential. Her change of view was also influenced by the difficulty there had been in finding a suitable care provider. She had approached a number of such providers, but none was able to provide a live-in care package. However, one care provider, Philip Parkinson Homecare, indicated that they would be able to implement the care package being recommended now by Miss Ward. It was also of note that that care provider had experience of providing care for clients with Parkinson’s disease. The third factor which influenced Miss Ward’s change of opinion was Dr. Young’s view that, within five years, it was probable that the Claimant would require 24 hour care. This means that a live-in care package would be unsuitable due to the requirement for carers to have 3 hours stand-down time each day and a minimum of 8 hours sleep each night.

Miss Ward then set out the care with which she considered the Claimant should be provided in three stages over the next five years. For the first year from now, she considered that the package should consist of basic support with cooking, cleaning, ironing, assistance with shopping, errands, driving, companionship and facilitating of activities in much the same way that the deceased would have done had he been alive. This is very much the care which the Claimant is currently receiving from Melanie, albeit only for 31 hours per week. Miss Ward is of the view that the care should be provided from 7 a.m. until midnight as the Claimant does not currently require any night care. However, she suggests that the cost of a sleeping carer accompanying the Claimant on holiday for six weeks each year would be necessary. For the period from July 2010 to January 2013, Miss Ward considers that the Claimant will require increasing care, including some physical assistance with personal hygiene and dressing. The latter would not have been provided by the deceased had he lived and so Miss Ward reduced the number of hours to replace the deceased by 1½ hours per day. Thus the previous level of 17 hours care per day to replace the deceased would be reduced to 15½ hours per day. Additionally, though, by that period Miss Ward considers that the Claimant will probably require a sleeping night carer as she may require some assistance at night and would be more prone to falling. She therefore allowed for some night care. Finally, for the period from January 2013 to May 2018, on the basis of Mr. Young’s opinion, Miss Ward considered 24 hour care would be required to replace the deceased’s services, but from that she deducted 2½ hours per day in respect of care which the deceased would not have provided. She therefore costed for 14½ hours per day plus a sleeping carer with provision for waking care for 1 hour each night for 7 nights. The total cost of these suggested care packages would be £90,432 per annum for the first year, £102,001 for the period July 2010 to 1 January 2013, and £98,198 per annum thereafter.

Miss Ward also considered the possibility of any care being provided by the Claimant’s local authority. During the course of the hearing I was referred to the Department of Health guidance to fair access to care services. In particular, I was referred to the four bands of eligibility in respect of local authority care, namely low, moderate, substantial and critical. The Claimant would have to undergo an assessment by the local authority and her financial position would also be taken into account. Miss Ward had concerns about the adequacy of any care that the local authority would be able to provide. In her experience, many local authorities have a cut-off point midway through the moderate needs band. In addition to the cost of the care packages proposed by her, Miss Ward provided costs for additional expenses for the Claimant’s carers and for DIY, decorating and gardening to replace the deceased’s services.

In her oral evidence, Miss Ward reiterated that she considers the Claimant requires care throughout the day as that was the best way of replacing the care which the deceased would have provided had he lived. It was her view that he would have provided such care himself and stressed the fact that he was “very much a home bird” and did not go off playing golf or engaging in other such activities. She stressed that the deceased would have been constantly available to help the Claimant and would have been on hand for most of the time. She considered it was important that someone was always available because of the Claimant’s risk of falling and the stiffening which she suffered at times due to the Parkinson’s disease. Miss Ward thought that it is important that the Claimant is enabled to remain active due to the concerns about her developing pressure sores if she sat for long periods. She considered that it was important that the Claimant should be enabled to go out and engage in all the activities she did with her husband when he was alive, and she can only do that with assistance. Miss Ward reiterated in her evidence that what she was recommending in her report was, in her view, the best way of replacing the deceased’s services. She said that there was nothing which she had heard about the deceased which would have prevented him carrying out the majority of the tasks necessary to care for the Claimant.

When she was cross-examined, Miss Ward conceded that the Claimant’s Parkinson’s disease is at a relatively advanced stage and that the condition will only get worse. She further accepted that, by 2013, the Claimant will have become a lot worse than she is now. She accepted that potentially by then the Claimant will require transfers and assistance with that. However, she argued that that would not have to be carried out by trained carers all the time. She thought it was speculation that the Claimant will require two carers to transfer/lift her from 2013. However, she accepted that from that time, the Claimant will be unable to carry out personal care or domestic routines and will require physical assistance with physical tasks. She accepted that, by that date, the Claimant would be in the substantial band in respect of the eligibility for local authority care. She accepted that there is a statutory requirement for local authorities to fulfil the needs for which it is assessed a person is eligible. She further accepted that potentially, as the Parkinson’s disease worsens, the Claimant would move from the substantial to the critical band for local authority care. It was her view that some Parkinsons sufferers before their death are nursed at home and she thought that the Claimant is one who would stay at home.

With regard to future holidays, she maintained in her evidence that she did not see a problem for the Claimant taking long distance holidays in a wheelchair, even after 2013. In relation to potential local authority care, she accepted that, whilst there is no choice regarding the care provided, there is the possibility of a local authority making direct payments to cover the cost of the care that the local authority would otherwise have provided.

In her report dated 12 March, 2008, Mrs. Hamilton, the Defendants’ care expert, set out the tasks which the Claimant was able to manage herself at that time. She described the various activities which the Claimant used to undertake with her husband. She set out information which she said the Claimant had given her about the deceased. The Claimant had told her that the deceased suffered back pain if he engaged in gardening or any heavy work and that for many years he had tired easily. She said that the Claimant described her husband as having “found it hard to cope with disability” which caused him to become impatient. However, the Claimant told Mrs. Hamilton that, had he been alive and her disability had progressed, he “would have been a devoted husband” and “would have arranged to get someone in” to help with her care and with domestic chores although “he was an independent man”. Mrs. Hamilton referred to the fact that the Claimant told her that, in respect of the care of his mother, the deceased had arranged for her care to be provided in her own home by the local services and that the Claimant said her husband would have done the same for her.

As I have already mentioned, Mrs. Hamilton did not carry out a costing of all of the care and services which the Claimant requires and will require in the future. She did assess the number of hours of domestic care which the Claimant has received since the deceased’s death. She assessed the amount of care that she considered the deceased would have provided had he lived. She considered that this amounted only to 15 hours per week. She thought that the deceased would never have been able to provide night care and that social services provision would have been required in any event. She thought that, bearing in mind the deceased’s “painful back condition”, the full extent of his ability to provide care from 2012 onwards would have been 20 hours per week. Mrs. Hamilton considers that the Claimant will require increasing care and that that will be provided by the local health and social services. She thought that, because of the deceased’s back pain, they would have had to employ a gardener in any event in the future. Mrs. Hamilton then set out the costs of replacing the deceased’s services for the limited hours detailed in her report.

In her evidence before me at the hearing, Mrs. Hamilton stressed that she had practical experience of nursing Parkinson’s patients, both in the community and in hospital. During the course of her evidence, she conceded that the 15 hours per week of care which she thought the deceased would have provided currently, had he lived, was an under-estimate and she increased the number of hours she would allow overall to 24 hours per week. She stressed that, by the time the Claimant requires 24 hours a day care, she will need full personal care for bathing, washing, dressing, toileting, and transferring from sitting to standing. She will need particular care with her nutrition so that she is well nourished and hydrated, because she would be very vulnerable to pressure sores. She thought it reasonable to assume that, by the time the Claimant does require 24 hour care, she will have a catheter because of the effect of Parkinson’s disease on nerve control. She thought there was also a possibility of difficulty with bowel control. By 2013, she considered that, for transfers, the full weight of the Claimant would have to be moved as she would be unable to assist with her own movements. Mrs. Hamilton said that her experience suggested that it was highly unlikely that the nature and degree of care which the Claimant will require could be adequately provided in her own home. To give the Claimant the best quality care she will need specialist equipment and transfers by two people, all of which she would have in residential care. Mrs. Hamilton stressed the fact that the deceased would have been 74 years old in 2013. She said even if he had been a younger and fitter man at that date, he would not have been able to provide the care which the Claimant will need. Mrs. Hamilton said that the present position regarding care from Durham County Council is that the maximum it would provide at the Claimant’s home would be two carers attending the Claimant four times per day for one hour on each occasion.

It was accepted by Mrs. Hamilton that the Claimant currently does extremely well, given her level of disability, and that she is independently self-caring. She thought that at the present time she does need domestic care and assistance with driving and transport.

Mrs. Hamilton thought that, after 2013, there could be no question of the Claimant going on the sort of holidays that she used to enjoy with her husband and that long haul flights would be out of the question. She thought that holidays would be limited to this country.

When she was cross-examined, Mrs. Hamilton stressed that her task had been to assess the care which had been given and would have been given to the Claimant by the deceased. She said she did not assess the deceased’s role as a husband and that, although he did provide companionship, that in itself did not come into the category of care. She agreed that the Claimant and the deceased undertook a wide range of activities and that she did not assess the replacement of the deceased’s services in that regard. She emphasised that she had assessed domestic care, fetching, carrying and assisting with mobility. Mrs. Hamilton accepted that she was bound by the medical views of Dr. Young, but maintains she was entitled to use her experience as to the Claimant’s needs and the deceased’s abilities from the care perspective.

Mrs. Hamilton was somewhat reluctant to concede that the presence of someone in the house at all times would reduce the risks of the Claimant falling. However, she did accept that, if the deceased had carried out fetching and carrying in the house for the Claimant, that would have reduced her risk of falling. She also accepted that, when the deceased went out with the Claimant, he could assist her with walking. She had made no allowance for gardening services from the deceased in the future because she considered his back condition would have prevented that.

Mrs. Hamilton said she was in no doubt at all that, by 2013, the Claimant would require 24 hour care. Although she had not made mention of the need for two carers to provide such care, she said that the deceased could not have provided the level of care required from that time. She stressed that it was her view that the Claimant would not have provided such care in any circumstances, and that the Claimant will require specialist care from 2013. She said it is possible that that care could be provided in her own home, but it was unlikely that that would be so. Mrs. Hamilton said in this regard “I am in absolutely no doubt that this care would not have been provided by her husband even with the help of sons or her daughter-in-law.”

Mrs. Hamilton accepted that the rates currently being paid to Philip Parkinson for care are not unreasonable. With regard to the period when the Claimant will require 24 hour care, Mrs. Hamilton accepted that the deceased would still have supplemented that care with the 20 hours per week which she had set out in her report. She said: “He would have been making her life as easy as he could within his abilities and as a devoted husband.”

Clearly, the main issue between the parties is the degree of care and the extent of the services which the deceased would have provided to the Claimant had he lived. I remind myself of the foundation for the quantification of any dependency claim as set out in Section 3 of the Fatal Accidents Act, 1976, which provides: “In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.” On behalf of the Claimant is was firmly submitted that the proper approach in the present case is to award the Claimant in respect of her dependency the replacement costs of the services which the deceased would have provided to her. I was referred to Paragraph 29-043 of Kemp and Kemp on the Quantum of Damages, where it is stated that if the surviving spouse has actually employed a housekeeper/nanny to replace the services of the deceased, then the dependency will be assessed by reference to the actual cost of such a housekeeper/nanny. It is also pertinent to consider the observations in Paragraph 29-029 of Kemp and Kemp, where it is stated: “Many of the claims made under the umbrella of loss of dependency include a significant element of hypothesis in that there is inherent uncertainty as to what would have happened if the deceased had not died. For this reason, the Courts will often apply percentage reductions to mathematically reach sums to reflect the hypothetical nature of the claim. Sometimes the reduction is arbitrary, and there is an element of the Judge reaching a “jury” award, that is putting himself in the position of a jury awarding damages and finding the sum which appears to him to be reasonable compensation, looked at overall as a lump sum, for the loss sustained.”

I was referred to the case of Nguyen -v-Nguyen [1990] 169 CLR 245 in the High Court of Australia, where it was stated in Paragraph 4: “When a loss of services in a Lord Campbell’s Act claim creates a need, however, the plaintiff can often satisfy the need himself. In either case the question may arise, should the tortfeasor be liable to pay for outside assistance to satisfy the needs? … Because often the plaintiff in a Lord Campbell’s Act claim can reasonably be expected so to adjust their lifestyles as to modify the need or to satisfy the need themselves, without significant depreciation of their lifestyles. That … is an adjustment that the plaintiffs are bound to make to mitigate their loss. Reciprocally, the tortfeasor is liable to pay for outside assistance if, but only if, such assistance is reasonably necessary to satisfy the need occasioned by the loss. … If it is reasonably necessary for the plaintiff to bring in outside assistance, the tortfeasor is liable to pay for that assistance. The test of reasonable necessity to satisfy the needs created by the loss draws upon contemporary social standards and expectations as well as the particular circumstances of the case.”

I was also referred to the case of Feay -v- Barnwell [1938] 1 All E.R. 31. That case involved a couple in their seventies where the husband was completely blind and the wife had looked after him entirely, doing everything in the house for him, reading to him and taking him out for walks. In his claim in respect of the death of his wife, the Claimant claimed the cost of a housekeeper to replace his wife’s services. Singleton, J. at 33F stated: “She was a woman ingood health who had done all the work of the house and done the washing and as I have said already had looked after her husband with the greatest of care. Anyone who has to deal with a matter of this sort must feel that part of the wife’s joy in life was looking after her husband.” He went on to refer to the fact that damages recoverable under the Fatal Accidents Act include the monetary loss incurred by reasonable services rendered gratuitously by the deceased when there was a reasonable prospect of their being rendered freely in the future but for the death. The cost of the housekeeper was therefore allowed, the learned Judge making the observation: “It must be remembered that someone coming to a house in that way, in the ordinary sense, is not as economical as the wife.”

Bearing in mind all of the evidence in the present case, and particularly that to which I have referred above, and the submissions made by Counsel, I have come to the following overall general conclusions regarding the Claimant’s dependency on the deceased’s care and services. In my judgment, albeit that the deceased may have been uncomfortable about disabilities, I find that he was an attentive and devoted husband. In my judgment, this is exemplified by his attitude to which I have referred when the Claimant told him of her diagnosis of Parkinson’s disease in 1998 and giving him the option of not remaining with her. As she said, his immediate reaction was to tell her not to be silly and to put her ring back on her finger. I further find that the Claimant and the deceased were a very close couple who spent a great deal more of their time together than the average married couple. It was plain that, having spent many years at sea, the deceased very much enjoyed home life and all the activities which he shared with his wife. I have no doubt at all that, had he lived, he would have devoted himself to the care of the Claimant to the best of his abilities. I reject the suggestion made by Mrs. Hamilton, that the deceased had a back condition which would have affected his ability to care for the Claimant or to undertake gardening and home maintenance. There appears to be nothing in the deceased’s medical records indicating that he had a serious back condition. It is, of course, not unusual for persons as they become older to suffer some back pain if they engage in very heavy work or exertion. I also find that the deceased had all the necessary abilities to carry out the household tasks and assistance which are currently being undertaken by the carer Melanie. So far as the position is concerned up until 2013, I reject the approach of Mrs. Hamilton, that one can simply assess a limited number of hours per week during which the deceased would have provided services for the Claimant. In my judgment, the Claimant’s condition requires that she has someone on hand at the present time and increasingly so up to 2013 for much of the day. I also accept that, from about 2010, the Claimant will require some night care. I further find that, in the period up to 2013, all of the deceased’s services to his wife, including the various activities in which he engaged with her, need to be replaced by carers. Again, I consider it is completely artificial for it to be restricted to particular tasks and particular hours per week as suggested by Mrs. Hamilton. In my judgment, the approach of Miss Ward to the valuation of the replacement of the deceased’s care for the Claimant up until 2013 is the proper and appropriate approach to compensation for this loss. Again, I am firmly of the view that, but for his death, the deceased could have provided and would have provided all of that care and those services. The exception to this would be care such as the Claimant’s personal hygiene which the deceased would not have undertaken and would have required outside help. Thus, whilst I generally accept the approach of Miss Ward in the period up to 2013, it will be necessary for me to make some adjustments to her costings.

With regard to the position from 2013 onwards, I have reached the firm conclusion that the position is somewhat different. In my judgment, by that time the Claimant’s condition will have seriously deteriorated. As was said by Dr. Young, it is highly probable that, by then, the Claimant will require 24 hour care in her own home or in a residential home. I accept Mrs. Hamilton’s view that, by that time, the Claimant will require specialised care and, for example, will require two carers and/or a hoist to effect various transfers. It will also be important for her carers to ensure that she does not develop pressure sores. Despite the devotion that the deceased would have shown to his wife had he lived, I cannot accept Miss Ward’s view that the deceased would still have been able to provide the majority of the care which the Claimant will need throughout the day and during the night from 2013. It has to be borne in mind that, by 2013, the deceased would have been 74 years old. Caring for his wife would have become increasingly difficult and I find that it is likely that they would both have reached the conclusion by about 2013 that she required care 24 hours a day from outside carers in her own home, or care in a residential home. It may well have been that, despite the Claimant’s very strong desire to remain in her own home, she and the deceased would have had to conclude, particularly if the care was to be provided by the local authority, that the appropriate course was for the Claimant to go into a residential home. I do accept that, wherever the 24 hour was provided, the deceased would have continued to supplement that care himself and that he would have spent probably 20 hours per week, as indicated by Mrs. Hamilton, in doing that. Having indicated my general findings in relation to the Claimant’s loss of dependency on the deceased’s care and services, I now propose to deal with the individual heads of claim under the 1934 Act, and then under the Fatal Accidents Act.

Law Reform (Miscellaneous Provisions) Act, 1934

Past care of deceased: The parties have agreed that an appropriate figure for the care provided to the deceased before his death is £1,000 and I so award.

Miscellaneous and travel expenses: This is a claim in respect of expenses incurred during the deceased’s illness, including the cost of travel to hospital and so on. The Claimant argues for £1,000 and the Defendants suggest, in the absence of detailed figures, that £200 would be appropriate. In the circumstances, I consider that an award of £400 is fair and reasonable in respect of this item.

Funeral expenses: The parties are agreed that there should be an award of £3,044.49 in respect of this head of claim.

Fatal Accidents Act claim

Past financial dependency: This relates to the Claimant’s dependency upon the deceased’s income but for his death. It should be noted that, in relation to the appropriate multipliers for all of the dependency losses, the Claimant accepts that the Court is bound by the case of Cookson -v- Knowles [1979] A.C. 556, and that the multipliers in Fatal Accidents Act cases should be calculated from the date of death. However, the Claimant’s position is reserved in relation to any possible future argument in relation to the assessment of multipliers. Subject to that, the parties have helpfully agreed the appropriate multipliers for any periods of dependency in question. The parties have also agreed the multiplicand in relation to the Claimant’s loss of financial dependency upon the deceased. The agreed figure for past financial dependency is £10,588.50.

Future financial dependency: Again, the parties have agreed the appropriate multiplicand and multiplier and the agreed figure is £33,739.61.

Past non-financial dependency: I have indicated that I accept the approach of Miss Ward to the evaluation of the Claimant’s loss of dependency on the deceased’s services to date and to 2013. She assessed that the Claimant had received 13 hours per week assistance from others up to 12July, 2007, and 2½ hours per week thereafter. I agree that it is appropriate to value this care and assistance at the rate of payment for a home help. However, I consider that there should be a deduction of 25% therefrom to allow for the fact that these services were rendered by friends and relatives. Taking Miss Ward’s figures, the full home help cost is as follows for the following periods:

The actual costs to the Claimant of employing a cleaner to date should be allowed. These costs are as follows:

In respect of the cost of gardening and gardening services to date, I allow the sum of £700.

The cost of an alarm service for the Claimant is agreed by the Defendants in the sum of £304. The costs of transport and taxis to date is also agreed in the sum of £250.

Having accepted that the care provided to date by Philip Parkinson to the Claimant reasonably represents the cost of replacing the deceased’s services and care, I calculate that the cost to date from 1 December, 2008 to 10 June, 2009 (being 27 weeks at £438.03 per week) is: £11,826.81.

I consider it is reasonable to allow the Claimant the cost of her companion’s fares on the holiday in the United States, namely in the sum of £750.

I calculate that the total of all of the above items in respect of past non-financial dependency is £18,700.61.

Future services dependency: I have indicated that, up until 2013, I accept the approach of Miss Ward to the valuation of the Claimant’s loss of the deceased’s services and care, although there will, in my judgment, have to be some adjustments to her figures. In respect of the costs of care for the Claimant from the present until 1 July, 2010 (being a multiplier of 1), I consider that it is appropriate to allow 12 hours per day from 8 a.m. to 8 p.m. rather than the 17 hours suggested by Miss Ward. In my judgment, this allows for the fact that the Claimant is still reasonably independent and that, as she said herself in her evidence, the increase in her hours of care should be gradual. I also consider that it would be reasonable to allow her the cost of a night carer for 4 weeks per annum when she is accompanied on holiday by a sleeping carer. Thus, the care costs for this period are for day care:

In respect of the period from 1 July, 2010 to January 2013, I consider that it is appropriate to allow 13 hours care per day from 7 a.m. to 8 p.m., but less 3 hours care which I consider would have been provided in any event by the local authority even if the deceased had lived and cared for the Claimant. This therefore gives the balance of 10 hours per day x 7 x 52 weeks at £14.13 per hour: £51,433.20 per annum. In addition to this, there should be allowed, in my judgment, 3 hours per day from 8 p.m. to 11 p.m. at £14.55 per hour x 7 x 52 : £15,888.60 per annum.

Finally, for the period from January 2013 to May 2018, I have indicated that, in my judgment, the Claimant would then be receiving 24 hour care from outside carers or in a residential home, even if the deceased was still alive. However, I have indicated that, in my judgment, the deceased would have continued to provide some care and assistance to the Claimant to supplement the 24 hours care, and that that should be assessed at 20 hours per week. Thus, 20 hours per week at £14.13 per hour x 52: £14,695 per annum. The agreed multiplier for this period is 4.22, giving a total of £62,013.74.

Other future losses: In my judgment, it would be reasonable, as stated by Miss Ward, to allow for the cost of food for the carer(s) from now until 2013. I consider a reasonable cost is £1,976 per annum, which has to be multiplied by the agreed multiplier for that period of 3.3: £6,520.80. Additionally, I consider that there should be a sum in respect of a driving allowance for the carer driving the Claimant at £750 per annum. Again, applying the multiplier of 3.3 gives a total of £2,475.

I further consider that the Claimant is entitled to a carer’s allowance at £40 per week, as suggested by Miss Ward, giving an annual sum of £2,080, which multiplied by 3.3 gives a total of £6,864. I consider it is reasonable to allow the Claimant the costs of chiropody for the same period, bearing in mind that she said in her evidence that she thought the deceased would have cut her toenails, etc. I allow £240 per annum, which with the multiplier of 3.3 gives £792 for this item.

The Claimant claims in respect of additional holiday costs for a carer to go on holiday with her. In my judgment, whilst the Claimant will still take some holidays, I am of the view that it is unlikely, as her disabilities increase, she will go on holidays abroad so that she will be largely restricted to holidays at suitable hotels or residential accommodation in the U.K. I also consider it is unlikely that she will in the future take as much as six weeks holiday per year. In my judgment, it is appropriate for me to award an overall lump sum in respect of such future holiday costs, and I am of the view that a sum of £11,500 would be appropriate for this head of claim.

As I have indicated, I find that the deceased would have continued to carry out gardening and DIY had he lived. Again, I consider that it is appropriate to award a lump sum in respect of the loss of the deceased’s gardening and DIY services, bearing in mind that, as he got older, particularly as he would have been still undertaking the care of the Claimant, he may well have reduced the amount of DIY and gardening that he did himself. In my judgment, the sum of £3,500 should be allowed for this head of claim.

Miss Ward has indicated that there are various items of equipment which the Claimant will require in the future. However, in my judgment, she would have required the majority of these items in any event, even if the deceased had lived. The only item I allow is in respect of the cost of a door intercom in the sum of £600.

I calculate that the total award for all of these other future losses is £32,251.80.

Loss of love and affection: Finally, the Claimant puts forward a claim in respect of the loss of the deceased’s love and affection. Essentially, this is a claim similar to that in Regan -v- Williamson [1976] 1 WLR 305, where a sum was awarded in respect of the loss of a housewife and mother who was in virtually constant attendance upon her husband and children. It is really a claim for the loss of the special attention and affection, which in some respects cannot be replaced, of a wife and mother. In my judgment, such a claim can arise in a case such as the present, where undoubtedly the Claimant has lost the love and affection and the very special attention which the deceased would have given to her in respect of her disabilities had he lived. In some ways, there may be an overlap between such an award and the award of damages for bereavement. In considering what award is appropriate under this head in the present case, I have considered the cases referred to in Paragraph 29-052 of Kemp and Kemp on the Quantum of Damages, the case of H -v- S [2002] 3 WLR 1179, and Beasley -v- New Century Group Ltd. [2008] EWHC 3033 (QB). In my judgment, an appropriate award under this head of damages is in the sum of £2,000.

Summary: The awards which I have made as detailed above can be summarised as follows: