Blake v Mad Max Ltd (Rev 1)

This judgment concerns issues in the quantification of damages to be awarded to the Claimant following the death of her husband, Mr Paul Blake, on 18 September 2016. Mr Blake developed mesothelioma after exposure to asbestos during the course of his employment with Allied Carpets. The Defendant now has the responsibility for that legal liability. On 15 March 2018 Judgment was entered against the Defendant on the issue of liability. Andrew Hogarth QC appeared for the Claimant and Peter Morton for the Defendant.

Mr Blake was a carpet fitter for the majority of his working life. He started work in 1971 for James Phillips and Son but in 1973 that company was taken over by Allied Carpets and he remained working for that company until 1982. There were 2 aspects to his work that exposed Mr Blake to asbestos. First, it was necessary for him to use a power tool to reduce the size of doors that were insulated with asbestos. Secondly, he was required to remove vinyl flooring, which included asbestos fibres. The claim was that for both activities the Defendant failed to take the necessary steps under the Asbestos Regulations 1969 to reduce his exposure to the asbestos dust.

At around Easter time in 2015 Mr Blake started coughing badly and thought he had ‘flu. On 30 June 2015 Mr Blake was diagnosed with mesothelioma. Mr Blake died from that condition on 18 September 2016 at the age of 61.

The Claimant is the sole executor of Mr Blake and brings a claim under the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA) and the Fatal Accidents Act 1976 (FAA) on her own behalf and on behalf of the estate.

The parties have been unable to agree the following issues:

I will deal with the detail of the evidence under the various sub headings, as appropriate. I record here that in addition to documentary evidence of earnings and other matters I had the following written evidence:

Mr Blake’s statement of 27 August 2015 records that his symptoms started around Easter 2015 when he was coughing badly. At the time of the statement he found climbing an incline difficult, he had shortness of breath, anxiety, pain, tiredness and weight loss. Professor Maskell’s report records that the initial investigations showed a large collection of fluid on the right lung (pleural effusion), complaints of right sided chest discomfort and weight loss. Fluid was removed for analysis and a thoracosopy (invasive examination inside the chest) with biopsies was performed. Mrs Blake’s witness statement records that Mr Blake underwent six cycles of chemotherapy (the last cycle in December 2015) and he lost some hair and became very lethargic. His sense of taste changed and he lost his appetite and enjoyment of eating. Towards the end of 2015 Mr Blake had a catheter inserted into his chest in order to drain off the fluid that had accumulated there. In early 2016 Mr Blake’s breathlessness and mobility became worse and deteriorated during 2016. He suffered a couple of falls although was not seriously injured and by July 2016 he was on a morphine-based painkiller. From mid-July until his death Mr Blake’s stomach started to swell and needed to be drained. He was very thin, frail and immobile. He spent a week in a hospice.

Prof Maskell’s report identifies that Mr Blake had no previous significant illnesses and was a non-smoker. Mrs Blake confirmed that he was physically fit and well prior to his diagnosis. As at the date of Prof Maskell’s report dated 15 September 2015 Mr Blake’s respiratory disability was 35% (Coalminers Respiratory Disease Litigation Disability Rating Scale, 1999). The time interval between the onset of symptoms and death was in the region of 16 months. If the mesothelioma had not developed, Professor Maskell’s opinion is that Mr Blake would have lived a further 27 years (this is not challenged by the Defendant).

I was provided with an agreed table summarising the features of reported cases of court awards in the past 5 years concerning general damages for mesothelioma. It is convenient to reproduce the relevant parts of that table together with additional features I have derived from the case reports.

The 14th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JCG) provides the range of £55,830 up to £100,350 for mesothelioma. The accompanying text is as follows:

“Mesothelioma causing severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. There are a large number of factors which will affect the level of award within the bracket. These include but are not limited to duration of pain and suffering, extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, whether the mesothelioma is peritoneal or pleural, the extent to which the tumour has spread to encase the lungs and where other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health, extent of life loss and concern for spouse and/or children following death.”

Mr Hogarth submitted that the appropriate level for general damages was £92,500 (Footnote: ¹). He submitted that, looking at the table of cases there are variables in each one but in particular Mr Blake was young and the duration of his illness was relevant. Mr Morton, Counsel for the Defendant, submitted that general damages should be awarded at £87,500 on the basis of an overall assessment of the decided cases.

As can be seen from the table of cases above the duration of the illness and the symptoms of the illness are key features in determining the level of an award. Zambardier and Knauer show a period of months before death, with significant symptoms but awards in the region argued for by Mr Morton. Those cases where survival has been in years have awards at the higher end of the bracket no doubt because symptoms have been suffered for substantial periods of time. Mr Blake’s symptoms and duration of illness are not as severe as in Mosson or Davey and taking all of the evidence into account and the JCG my conclusion is an award of £90,000 is correct.

The funeral expenses are claimed in the sum of £5,026. Of that sum, £4,673.72 is agreed but what remains in dispute namely, £352.28, represents the cost of refreshments after the funeral. Mrs Blake in oral evidence said that she spent this sum on tea, coffee, sandwiches and cake as refreshments for those who attended the funeral. For convenience what I will call the ‘wake’ took place immediately after the funeral and she considered it part of the funeral expenses.

Both the LRMPA (section 1 (2)(c)) and the FAA (section 3(5)) provide that “funeral expenses” are recoverable as part of the damages. In 1979, Mr BA Hytner QC sitting as a deputy judge dealt with this issue in Gammell v Wilson and Swift Company Limited (27 July 1979, unreported) (Footnote: ²). Mr and Mrs Gammell’s 15-year-old son was killed in a road traffic accident. The family originally came from Ireland and returned there for the funeral and burial. They claimed for the cost of a wake. The judge also had to consider whether the cost of mourning clothing was recoverable and having reviewed Goldstein v The Salvation Army Assurance Society [1917] 2 KB 291 stated:

“In consequence, I find that the cost of mourning clothing rather than being a funeral expense was an expense consequent upon the death and was a part of the mourning expenses. It also follows that the cost of the wake, however reasonable it may have been in the circumstances, was not itself a funeral expense. In my view, it was, as with the mourning clothes, the consequence of the death and a part of the expenses of mourning the deceased. If I am held to be wrong in this I should add that whilst as wakes ago, and in the whole of the circumstances, it was not an extravagant one…”

In Knauer v Ministry of Justice [2014] EWHC 2553 (QB) Bean J (as he then was) regarded Gammell as good law and was not prepared to depart from it. In Mosson v Spousal (London) Ltd [2015] EWHC 53 (QB) Garnham J made the same point. Martin Chamberlain QC sitting as a Deputy High Court Judge in Grant v Secretary of State for Transport [2017] EWHC 1663 (QB), having referred to Knauer and Mosson also declined to make such an award stating:

“Receptions are not always held after a funeral. When they are held, there is no invariable practice of providing refreshments. This makes it difficult to suppose that Parliament intended to include them within "funeral expenses" in s. 1(2)(c) of the 1934 Act (or, for that matter, in s. 3(5) of the 1976 Act). I decline to follow the decision of Master Topley to contrary effect in Smith v Bowbelle/Marchioness (unreported, 27 January 1993).”

Mr Hogarth submitted that in light of contemporary arrangements for funerals the authorities were wrong and that it was common sense that refreshments form part of funeral arrangements. He submitted there was a dividing line between refreshments as a courtesy to those attending the funeral and a celebration of the deceased’s life. He submitted that there was a distinction between a celebration of the deceased life involving alcohol and providing tea, coffee and sandwiches.

The legislation permits recovery of ‘funeral expenses’. In Gammell the distinction was drawn between expenses consequent upon the death and expenses derived from the funeral itself. In Grant, the judge decided as there was no invariable practice of providing refreshments Parliament could not have intended such refreshments to come within ‘funeral expenses’. I do not know about whether such practices are common or uncommon nor what the practices of various faith groups might be in relation to funeral arrangements. Gammell is clear in drawing the distinction between costs that are consequent upon the death and those attributable to the funeral. The cost of a wake or reception is not directly attributable to (or consequent upon) the funeral and therefore I find that the cost of the wake is not recoverable from the Defendant.

The Claimant provided evidence in her witness statement about the level of care that she had provided to Mr Blake during his illness. These periods are summarised in the table below:

The Claimant’s evidence concerning the first period was prior to his diagnosis at a time when Mr Blake was anxious. The second period covers the time during which Mr Blake was receiving chemotherapy and had a pleural catheter placed, which the Claimant used herself to drain fluid from his chest, after being shown how to do it by nursing staff. The third period was one during which Mr Blake’s breathlessness and mobility deteriorated and the Claimant helped him to mobilise and be comfortable in bed during the day and night. The Claimant’s evidence concerning the fourth period was that Mr Blake’s mobility became even worse, the Claimant stayed nearby him to ensure his safety and at night the Claimant would adjust Mr Blake’s pillows because he could not sleep comfortably lying down. The Claimant made regular trips to the chemist for medication. In the fifth and final period Mr Blake needed a wheelchair to get around and the Claimant said that she spent all of her time attending to Mr Blake’s needs and was providing round-the-clock care until Mr Blake’s death.

Mr Morton did not cross-examine the Claimant on the amount of care that she provided to Mr Blake. His submission on the behalf of the Defendant was however, that the hours claimed were estimated, there was an overlap with activities the Claimant would have carried out in any event and they were unrealistic. In particular, he submitted that the 24-hour care in the fifth period was unrealistic and there was no discount provided for the week that Mr Blake spent in a hospice (which was during the fifth period).

The Claimant struck me as an honest and reliable witness, as I have already stated. In her oral evidence she did not seek to exaggerate her claim. In her witness statement the Claimant refers to the amount of care that she provided to be ‘estimates’ but that is the nature of this type of claim. In the absence of cross examination, other evidence and on my assessment that the claims made are not unreasonable on the face of it, I accept the Claimant’s evidence. In reaching this conclusion, I bear in mind that if it was apparent that the number of hours claimed were clearly excessive then that would be grounds for reducing the hours claimed. I also have borne in mind that the compensation is for care provided and not just activities that the Claimant would have carried out in any event or by virtue of her simply being present with Mr Blake. I have considered carefully the final two-month period and the fact that Mr Blake was admitted to a hospice supports the claim for 24-hour care by the Claimant, indicating the level of support that he required. However, as he was in a hospice for a week, the Claimant would not have provided care and 7 days should therefore be deducted from this element of the claim.

There is no dispute over the hourly rate nor over the discount to be applied as the care was provided gratuitously. An argument advanced on the Claimant’s behalf that there should be a reduced discount in this particular case fell away as the Claimant in evidence confirmed that her employer had continued to pay her wages during the time that she took off in order to care for Mr Blake. The hourly rate was agreed at £9.24 and the discount at 25% in those circumstances.

In her witness statement the Claimant estimated a cost of £750 per year on average to use outside contractors to do work that would otherwise have been done by Mr Blake. The Claimant has had a kitchen installed and a new boiler and her evidence was that Mr Blake would have done that himself. Mrs Blake will need to engage contractors to undertake bigger jobs throughout the house. The Defendant agreed the sum of £432 that Mrs Blake had to spend in order to have fencing erected, again a job that Mr Blake would have done himself, had he been alive.

The Claimant was not cross-examined on her estimate of the value of services provided. Mr Morton’s submission was that these were again the Claimant’s estimates and not the value of the services provided by the deceased. I repeat the comments that I have made above on estimating in relation to the care claim. The sums claimed are not manifestly excessive and the commercial cost of erecting the fencing being only one activity in a year, tends to support the amount claimed by Mrs Blake as an estimate. As a cross check, dividing the total sum claimed by the hourly rate for care would amount to approximately 81 hours per annum which is just over one and a half hours per weekend. The commercial cost of providing some of the services would in any case probably be over £9.24 per hour leading to a lower number of hours per annum. Given the Claimant’s evidence about the extent of services provided by Mr Blake, an hour or hour and a half per weekend is a very reasonable estimate and I accept the Claimant’s estimate of the commercial value of the services provided at £750 per annum in respect of past and future services.

Mr Blake was a self-employed carpet fitter. In the last three years of his life his gross earnings were £13,120, £12,764 and £16,639 respectively. Mr Hogarth’s submissions were that the final year’s gross earnings most accurately reflected Mr Blake’s income, indicating the demand for his services and he pointed out the Claimant had not sought to increase the figures for inflation. Mr Morton’s submissions were that the final year was not a typical year and the Claimant did not have a structured career path and therefore an average of the three years ought to be used to calculate Mr Blake’s likely annual earnings. There is no dispute as to the level of tax to be deducted.

The third of the annual figures for loss of earnings is considerably higher than the preceding two years. I have no explanation for that and it may be that that year was a particularly good one or it may be that there was an upward trend in Mr Blake’s business. However, it is also possible that Mr Blake’s earnings would have returned to something in the region of £13,000 per annum as the final year was simply ‘unusual’. Statistically, the effect of the one-year of higher earnings will pull the average up and this has the effect of providing for the chance that there was an upward trend in Mr Blake’s earnings. It is not fair to base the annual earnings figure only on the third year because it does not take into account the two previous years’ performance or the other possible events that might impact upon a self-employed person’s earnings. The average of the three years produces a fair result at £14,174 (rounded down to the nearest pound).

The Claimant’s evidence was that she would retire when she reached the age of 66, as this is the age at which she will be able to achieve her full pension from her employer. I have no hesitation in accepting her evidence on this point. She gave evidence that the discussions that she had had with Mr Blake before he was ill was that he planned to retire at the age of 70. If Mr Blake had reached that age it would have coincided almost exactly with the Claimant reaching the age of 66 so they would have both been retired at the same time. Mrs Blake gave evidence that Mr Blake was very fit and that the job he undertook was a physical one. He did not have an assistant. Prof Maskell in his report states that there was no medical reason why Mr Blake could not have continued to work until the age of 68, absent his mesothelioma.

Mr Hogarth’s submissions were that the retirement age proposed and anticipated by Mr Blake made logical sense and that the Claimant’s evidence should be accepted. Mr Morton’s submissions were that the discussions took place whilst Mr Blake was fit and that as the years went by, as a matter of practicality, he is likely to have decided to have given up work earlier than originally planned. Whilst this might have been after the age of 65 it would have been before the age of 70. Mr Morton drew my attention to Prof Maskell’s report and his reference to the age of 68.

There is no indication within Prof Maskell’s report where he obtained the age of 68 from as a retirement figure. Mr Blake had no past medical history of note and the Claimant’s evidence was that he was fit and active. I do not find that Prof Maskell was providing a medical reason why the Claimant could not work beyond the age of 68. Mr Morton’s predominant submission was that a man of 70 would not have been able to move rolls of carpet and carry out the physical activities required. There is no evidence either way about whether that would have been possible, although I accept some force in Mr Morton’s argument. However, I accept the evidence of the Claimant that it was Mr Blake’s intention to retire at the age of 70 and I find that this is the age at which probably he would have ceased work. If there is a risk of overcompensation it is offset in any event by using the average for loss of earnings and another reason to use the average rather than the final year of Mr Blake’s earnings for the purposes of calculation.

In the schedule of loss, the Claimant sought the cost of a new car in the sum of £12,380.20. At trial, the claim for the capital cost of the car was abandoned and Mr Hogarth sought the sum of £2,000 instead representing, he submitted, the cost of servicing a car, which is an activity Mr Blake undertook. Mr Morton’s submissions were that this was double recovery and covered by the loss of services already claimed. No evidence of the cost of servicing a vehicle was adduced. The Claimant’s witness statement at paragraph 53, when describing loss of services, includes Mr Blake’s provision of car maintenance. The Claimant goes on at paragraph 54 to provide her estimate of £750 per annum to replace the services that were otherwise provided by Mr Blake. Paragraph 71 of the Claimant’s statement details Mr Blake insisting that the Claimant purchase a new car for the benefit of the three-year warranty and service plan. The Claimant’s evidence is clear in that she incorporated within the £750 the loss of services for car maintenance. I reject the separate claim for £2,000 as it would be double recovery.

There remains one finding to be made to enable the parties to calculate the future loss of dependency. In the course of her oral evidence, the Claimant confirmed that after Mr Blake’s death she returned to her work. However, she has now decreased the number of hours that she works per week by five hours to care for her father in Cornwall. She now works 27 hours per week as opposed to 32 hours per week. The Claimant’s father has a long-term illness and the Claimant is providing care for him. The Claimant’s father is 82 years old and the Claimant understandably said that her father was important to her but that when he no longer required her help she would increase her hours again. Mr Morton submitted that I should provide for a reduced income for the Claimant for the next five years. Mr Hogarth made no submissions on this point. I have no evidence on the Claimant’s father’s life expectancy. Doing the best I can in the circumstances I find that the Claimant will work at a reduced level of earnings for a total period of five years.

The Schedule included a claim in the sum of £5,000 for ‘loss of non-financial intangible benefits of a spouse’. The position in the Defendant’s Counter Schedule was that this was not a recoverable head of loss.

The Claimant’s witness statement when dealing with past loss of services, which I have already referred to, at paragraph 53 to 58 refers to Mr Blake doing ‘everything around the house’ and goes on to detail decorating, DIY and maintenance for the house, garden and car. In oral evidence, the Claimant stated that she now had to do everything on her own including, driving, making the bed and vacuuming. During his lifetime, Mr Blake shared such activities.

Mr Hogarth’s submissions were that there were a long line of cases in which awards had been made for loss of a spouse or loss of a parent (he submitted there was no difference in principle between the basis for such awards). There were many things that partners did together such as making the bed, assisting with food preparation or driving to social functions. Those, it was submitted, were the intangible benefits of having a spouse in the same way that the intangible benefits of having a parent are things such as assistance with homework. The award has been recognised in the authorities but only questioned substantively by judges in recent years. In subsequent written submissions on this point, he adopted paragraphs 107 and 108 of the judgment of Martin Chamberlain QC in Grant, namely the award is to compensate for services provided by the deceased which are impossible to quantify except in general terms. Mr Morton’s submissions were that the key principle was that this was double recovery for loss of services of a spouse and was not justified on the facts. In addition, he submitted that the recent authorities demonstrated that there was no scope for such an award. In subsequent written submissions Mr Morton submitted that there were no damages to be awarded for pure sentiment and that after Mosson where services have been quantified there should be no separate award for the loss of a partner’s care and attention. There was a conflict of authority between Mosson and Grant over whether there was a compensable loss for the inconvenience of having to organise someone else to carry out tasks which the deceased would have otherwise undertaken. He submitted that the judge in CC v TD [2018] EWHC 1240 (QB) was wrong in awarding a sum for the loss of intangible benefits, where children had been denied the benefit of love and affection which their father would otherwise have bestowed upon them.

Mr Hogarth relied upon H v S [2002] EWCA Civ 792, which was an appeal against the quantum of awards to children on the death of their mother. There was no challenge to the underlying basis for the awards and at paragraph 38 Kennedy LJ stated:

“The awards to NH and PH of £5,000 and £7,000 are challenged by Mr Strachan on the basis that the conventional maximum award is about £5,000, even where the dependent child is very young… Mr Lederman’s response is that in other cases there was no evidence as to the value and quality of the services lost. In my judgement that is not a sufficient reason to abandon the bracket, and I would reduce the award in the case of NH to £3,500 and in the case of PH to £4,500.”

As there was no underlying analysis of the basis of the award, H v S is of limited assistance, except to show that the Court of Appeal accepted such awards were possible. In Mosson Garnham J dealt with the issue at paragraph 65 to 80 of the judgment. Garnham J had already awarded damages for loss of services by the Claimant’s deceased husband and criticised the lack of evidence relating to the value of those services. At paragraph 67 Garnham J characterised the head of claim as ‘a claim for compensation for the inconvenience of having to commission such services and use the damages I have allowed to purchase them.’

At paragraph 68, Garnham J goes on to consider the authorities including Beasley v New Century Group Limited [2008] EWHC 3033 (QB), referring to Regan v Williamson [1976] 1 WLR 305 and Mehmet v Perry [1977] 2 All ER 529, in particular. Garnham J rejected the jurisprudential foundation for such claims on two bases. First, there can be no precise equivalent in money terms of every loss that flows from an injury or death and the award is the best estimate of value rather than the cost of the services lost. Secondly, a claim for financial compensation for the inconvenience of having to pay someone to do what the deceased would have done voluntarily is a non-financial loss that comes within the bereavement damages.

In Grant Martin Chamberlain QC also reviewed, at paragraphs 94 to 109, the authorities on loss of intangible benefits including the judgment in Mosson. I summarise the following principles the Judge derived at paragraph 105 to 108:

What is clear on all of the authorities is that awards cannot be made for loss of love and affection or companionship (see for example, paragraph 106 of Grant). In Regan Watkins J, having referred to Hay v Hughes and a quotation from Lord Edmund Davies, concluded that with respect to the loss of services provided to children by a mother that the word ‘services’ had been too narrowly construed. In Regan the father was the plaintiff and had paid for the deceased’s aunt to provide care to the children during the working week. Watkins J had assessed the value of that at £12.50 per week. Watkins J increased that sum to £20 per week because he concluded that the £12.50 per week was only part of the loss of services as the mother would provide services in the evening and during the weekends ‘when no substitute service is available’. This was also the basis for an award in Fleet where the deceased was younger than the Claimant and he would have provided more care to her in later years. These are clear examples when the loss of services claim assessed on a commercial basis does not adequately cover the amount of the service provided, or that would have been provided, by the deceased.

In Beasley, Hamblin J (as he then was) having started with Regan set out the principle derived, namely that an award is made when the services provided may be “over and above” those provided by a paid replacement. The judge, went on to conclude the case he was dealing with was a good illustration of the appropriateness of such an award to a widow stating:

“there are considerable advantages in having jobs around the house and garden done by a husband at his own time and convenience rather than having to go out and to find and choose commercial providers, and to have to work around the hours that suit them for the work in question.”

There are apparently 2 elements here, first, the value of the time that has to be taken by the surviving spouse in making the commercial arrangements (the extra time element) and secondly, the loss of the services being done at the deceased’s own time and convenience and the surviving spouse’s convenience (the convenience element). However, it is the extra time element that is at the core of the cases and in Grant, Martin Chamberlain QC stated at paragraph 108 that the extra time element was the reason for the award. The extra time element is based on the principle in Regan, it being something ‘over and above’ the costed services dependency. The convenience element appears as a significant part of Garnham J’s reasoning in rejecting the basis of the award in Mosson. I should state here that I see no basis to differentiate between the awards for children of a deceased parent or awards for a surviving spouse. Beasley is authority for the basis for such awards being the same.

The Claimant’s witness statement deals only with the commercial costs of replacing the services Mr Blake provided. The oral evidence from the Claimant was that services, over and above those that could be quantified commercially, had been provided by Mr Blake: making the bed, helping with food preparation and driving her to various functions and activities. I can also infer from her witness statement that the Claimant will have to spend time organising the commercial provision of replacement services, which is something that she would not otherwise have done. On the basis that this is a loss over and above the commercial cost and not adequately compensated for by the claimed loss of services that I have already analysed I make an award, as this is consistent with the FAA and the principle in Regan and the subsequent authorities (except Mosson and those that follow it). It is not double recovery. The figure is not capable of scientific analysis but considering the evidence and other similar awards, I award the sum of £2,500.

The outcome of this Judgment is summarised as follows: