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||Neutral Citation Number:  EWHC 2553 (QB)
||Case No: HQ12X03278
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE BEAN
Harry Steinberg (instructed by Charles Lucas and Marshall, Swindon) for the Claimant
Tom Poole (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 10-11 July 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Bean :
- Between 1997 and 2007 Sally Knauer was employed as an administrator at Guy's Marsh Prison, Shaftesbury, Dorset. The prison included many old buildings to which Mrs Knauer was required to go in the course of her job. Many of these buildings contained asbestos. As a result of exposure to asbestos at the prison Mrs Knauer contracted mesothelioma. She died on 28 August 2009 at the age of 46.
- The claimant is her widower and the administrator of her estate. Mr and Mrs Knauer had three sons who at the date of their mother's death were aged 22, 20 and 16 respectively.
- Mr and Mrs Knauer were an old fashioned couple, in the sense that the division of labour in their household was as it might have been in the 1950s. Mrs Knauer managed the household. She cleaned, cooked, changed the beds, laundered and ironed clothes, did the shopping and walked the dogs. In addition she decorated the house when necessary, and tended to the garden. Mr Knauer did occasional tasks such as bathroom repairs but little more than that.
- Mr Knauer's career from 1977 (when he was 17) to 2007 was as a manager, latterly a business development manager for a company owning public houses. In 2007 Mr and Mrs Knauer, with the help of a business partner Richard Jones, bought two public houses in Dorset. They ran one and their eldest son ran the other. When they first moved in Mrs Knauer continued her job at the prison for a while, but once they were established she resigned from that employment and worked in the public house where they lived.
- In March 2009 Mrs Knauer was diagnosed with malignant mesothelioma. She was told that she had only six months to live. The couple decided to sell the business so that they could move to a peaceful environment for what they knew would be their last months together. Mr Knauer's business partner bought them out. They used the proceeds to buy a home and moved in there in May 2009. By this time Mr Knauer had given up his work to care for his wife.
- Mesothelioma is a hideous and incurable disease causing appalling suffering. Mrs Knauer was no exception. In March 2009 she developed a hydro-pneumothorax and a chest drain was inserted. By the following months she had symptoms of breathlessness, pleuritic aching, loss of weight, loss of appetite and difficulty in breathing.
- On 16th June 2009 she underwent radical surgery consisting of incomplete left pleurectomy and lung decortication. She required admission to a hospice to try to control the consequent vomiting, sickness and pain. Her condition continued to deteriorate. She was in severe pain and took morphine every three hours. Towards the end she was on a morphine pump. On 28th August 2009 she collapsed at home and died in hospital the same day. Throughout this period, from the time she received the devastating news of her condition, she was aware that she had a terminal illness.
- The present claim was issued on 9th August 2012. At first the Ministry denied liability. It was not until December 2013, after the exchange of witness statements, that liability was admitted, enabling Master Eastman to give judgment by consent for damages to be assessed.
- The assessment of damages took place before me on 10th and 11th July 2014. I heard oral evidence from Mr Knauer and two care experts; Kathy Kirby called on behalf of the claimant and David Pawson called on behalf of the defendant. Many heads of damage have been agreed but on a small number of issues there is a wide divergence between the submissions of Mr Steinberg for the claimant and Mr Poole for the defendant.
Law Reform Act claims
Pain, suffering and loss of amenity
- The Judicial College (in the 12th edition published in 2013) guidelines for the assessment of damages in mesothelioma cases give a bracket of £51,500 to £92,500. The commentary reads as follows:-
"Mesothelioma causing both 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."
- There are no appellate decisions on quantum: I was shown five first instance decisions. The most recent, given in July 2013, and in my view the most analogous to the present case, was Zambarda v Shipbreaking (Queenborough) Ltd. In that case deputy judge John Leighton Williams QC, one of the most experienced personal injury specialists in the country, awarded £77,500 (£79,500 in today's money) in respect of the pain and suffering of a male victim of mesothelioma. Mr Zambarda was ill for slightly longer than Mrs Kanuer (seven months from the first symptoms, six months from diagnosis). He too had a partial pleurectomy. But a marked difference is that he was 70 when he died, far older than Mrs Knauer. Another broadly comparable case, heard in 2009 by Nigel Wilkinson QC, another deputy judge of great experience in this field, was Streets v Esso Petroleum Co Ltd, where the victim died at the age of 60 and the award was £65,000 (£77,000 in today's money). I assess general damages under this heading at £80,000.
- The costs of care for Mrs Knauer during the period of her illness are agreed at £11,520. Disbursements incurred during that period are agreed at £3,587.91. Loss of her income is agreed at £2,313. These three items total £17,420.91
Mrs Knauer's inability to provide services during the period of her illness
- For reasons which I shall develop under the headings of past and future services dependency claims under the Fatal Accidents Act, I consider that an award should be made in respect of general household tasks done for 20 hours per week; the hourly rate claimed for this limited period, which I accept, is £8.98 giving a figure of £4,669.60. I also award £780 (2.5 hours per week at £12 per hour) for gardening services and a further £300 (half a year at 50 hours per year and £12 per hour) for decorating: a total of £5,749.60.
Fatal Accidents Act damages
- An award for bereavement in accordance with the current guideline figure is agreed at £11,800.
- Funeral expenses are agreed at £2,283. In addition, Mr Steinberg seeks to claim £725 for the cost of the reception or wake which followed the funeral. In his decision at first instance in Gammell v Wilson  AC 27 deputy judge Benet Hytner QC disallowed a claim under this heading. The case was appealed on other grounds to the Court of Appeal and House of Lords. Mr Hytner's decision has been regarded as good law ever since and I am not prepared to depart from it.
Income dependency: the multiplier
- At the time of her death Mrs Knauer had worked for many years and would have continued to do so. Mr Knauer therefore claims both for an income dependency and for loss of her domestic services. Both of these claims involve calculating a multiplicand and a multiplier. There is an issue of principle as to the multiplier. The multiplier in a Fatal Accidents Act claim, nowadays set out in what are known (and described in s 10 of the Civil Evidence Act 1995) as the Ogden tables, is reached by taking a starting point of the number of years to the predicted date of death of the claimant or retirement or death of the deceased (as the case may be), which is then discounted both for the uncertainties of life and for accelerated receipt. The conventional method of calculation is to fix one overall multiplier, then to classify the period to trial as special damages and the remainder as future loss. This method of calculation is illogical, because the discount for accelerated receipt should not apply in respect of the period from the death to the trial.
- Mr Steinberg submits that the time has come to depart from the conventional method. Instead, he says, I should treat the period to trial as special damages (with a small discount for the uncertainties of life but none for accelerated receipt) and then calculate the multiplier for future loss starting at the date of trial or judgment. That is essentially what the Law Commission recommended in its 1999 report Claims for Wrongful Death. For the reasons given by Nelson J in White v ESAB Group (UK) Ltd  PIQR Q6, I would follow that course if it were open to me to do so. But it is not. Like Nelson J, I consider that I am bound by the decisions of the House of Lords in Cookson v Knowles  AC 556 and Graham v Dodds  1 WLR 808, in which the conventional approach was set out and adopted. I will therefore approach the claims for past and future income dependency, and past and future services dependency, on that basis.
Income dependency from 2009 to 2014
- The dependency ratio to be calculated in accordance with Coward v Comex Houlder Diving Ltd  EWCA Civ 18 and Crabtree v Wilson  PIQR Q24 is that in families consisting of a couple, both of them in work, with one or more children living at home for all or part of the year, one should assume that the surviving spouse would have spent 25% of the joint income on himself and that after the last child left home this proportion would have increased to one third. Mr and Mrs Knauer's youngest son has been studying at university and staying at home during the vacations, and was 21 years old in March 2014. I accept Mr Steinberg's submission that a dependency ratio of 75% should be applied to the past loss of income and a dependency ratio of two thirds to future loss.
- Between 2007 and 2009, as I have already recorded, Mr and Mrs Knauer lived in and ran a public house. Their plan had been to build the business and strengthen its profitability and sell it for a substantial capital gain after about two more years. In fact they disposed of their interest on a "fire sale" basis in May 2009 (although no claim for loss of the prospective capital gain is made). The claimant submits, and I accept, that Mrs Knauer would have continued to work in the public house until the sale and would then have returned to ordinary employment. She had previously been employed for many years as a receptionist or a personal assistant before her service at the prison.
- In the 2012 edition of the Annual Survey of Hourly Earnings (ASHE) the median gross income for administrative and secretarial occupations is given as £19,700, which produces a net annual figure of £16,350. Mr Poole submits that Mrs Knauer might not have returned to administrative or secretarial work on the sale of the public house or that she and her husband might have remained at the public house where she was only paid £5,783 in the tax year ending April 2009. I do not accept these submissions. The evidence, both from the claimant and from Mrs Knauer's employment record, is that she was a reliable and industrious worker who would not have let the grass grow under her feet. I accept that the public house would have been sold, probably sometime in 2011, and that Mrs Knauer would then have found administrative or secretarial work without much difficulty.
- I will make a deduction of three months for uncertainties: one cannot assume that even someone as hard-working as Mrs Knauer would have glided seamlessly from leaving the public house one weekend to starting a new job on the Monday. But otherwise I accept Mr Steinberg's submissions on this issue. I also accept that the claimant's income for the period up to trial would have been £85,837.
- This produces the following calculation
Income of Mrs Knauer 59,522
Income of Claimant 85,837
Joint income 145,359
75% of this 109,019
Less Claimant's income 85,837
Future income dependency
- This head of damage is admitted in principle. Mrs Knauer could have been expected to have worked until the state retirement pension age and thereafter to have drawn an occupational pension and the state pension. The multiplier makes allowances for the uncertainties of life. I therefore accept Mr Steinberg's submissions as to how it should be calculated:-
(1) Period 1: to the Claimant's retirement age (at 66) on 1 June 2027
(2) Period 2: From 2 June 2027 to Mrs Knauer's retirement age (at 66) on 18 April 2029
(3) Period 3: From 19 April 2029.
• Deceased's assumed net income £16,350 (as above)
• Claimant's new income £15,195 (as above)
• Joint income: £31,545
• Less 1/3 dependency ratio: £21,030
• Less Claimant's income (15,195)
• Annual loss of dependency: £5,835
• Deceased's income £16,350
• Claimant's pension income: £11,622
- Standard Life K1119186000 £1,077 (taking mid-point projection)
- Standard life pension K2228263000 £2,035 (mid-point projection)
- Marstons (estimated at £350pa)
• Joint income: £27,972
• Less 1/3 dependency ratio: £18,648
• Less Claimant's income: (£11,622)
• Annual loss of dependency: £7,026
• Deceased's pension income £8,093
- Civil service pension £1,627
• Claimant's pension income: £11,622 (as above)
• Joint income: £19,715
• Less 1/3 dependency ratio: £13,143
• Less Claimant's income: (£11,622)
• Annual loss of dependency: £1,521
Multipliers and calculations
• The period is 12.74 years.
• The arithmetical multiplier is 10.93
The loss is therefore £63,778 (10.93 x £5,835).
• The period is 1.88 years.
• The arithmetic multiplier is 1.83
• Discount for deferral (approx. 13 years) at 0.73
• Multiplier is 1.34
• The loss is therefore £9,415 (1.34 x £7,026)
• Applying the conventional multiplier, the remaining part is 5.88 [i.e. 18.15 less (10.93 + 1/34)]
• The loss is £8,943 (5.88 x £1,521)
The total loss under this heading is therefore £82,136.
Mr Poole argued vigorously that there should be no award for either past or future services dependency. Five years have passed since Mrs Knauer's death, he points out, yet Mr Knauer has not engaged a paid cook, cleaner, gardener or decorator, still less a resident housekeeper.
This submission, with respect, is misconceived, on basic principles of the law of tort. If a claimant's brand new Rolls-Royce is written off through the defendant's negligence the damages must include its replacement value even if the claimant decides that he will change to a cheaper car or in future take public transport. The same principle applies to claims for loss of services under the Fatal Accidents Acts; and to claims for future loss, though not past loss, brought by a living claimant for her own personal injuries (Daly v General Steam Navigation Ltd  1 WLR 120). Of course in a sense the value of a lost spouse cannot be measured in money terms (see Proverbs, chapter 31, verses 10 ff.) but the law has to do the best it can.
Mr Poole is right to say that in predicting the future one can take account of what is known to have happened already. As Aneurin Bevan said in a different context, "why look into the crystal ball, when you can read the book?" The classic example in tort law is a Fatal Accidents Act claim where the surviving spouse has himself died by the time of trial: there will be no award for his future dependency, though there may be for that of the deceased's children. But this does not alter the basic rule that the claimant is entitled to the value of what he has lost. Indeed, Mr Poole's submission is contradicted by high authority: in Hay v Hughes  QB 790 at 809B Lord Edmund-Davies said that "the fact that a widower decided to manage himself after the death of his wife would not disentitle him to sue for and recover damages for the pecuniary loss he had sustained."
The claimant's case as put in the Schedule of Loss and in the report of Ms Kirby is that Mrs Knauer used to spend 20 hours per week on household tasks excluding gardening and decorating. Mr Knauer's oral evidence, which I accept, was that his late wife was extremely houseproud and would spend three hours on these tasks on a typical weekday and more than that on Saturdays and Sundays. It may be that the figure of 20 hours is if anything an underestimate of the time she spent. I do not think it would be right to allow for more than the figure set out in the Schedule, but I do not accept the submission (as a fallback from the argument that nothing should be allowed at all) that 20 hours was an overestimate or that Mr Knauer could and should make do with less.
Mr Steinberg submits that the claimant is entitled to the cost of engaging a resident housekeeper: there is a quotation from an established agency in the documents at £25,168 per year (£484 per week). He argues that this is the best way of providing the constant attention to which Mr Knauer had become accustomed.
As to hourly rates for services such as cooking, cleaning and laundry, Mr Pawson writes that he would "expect Mr Knauer to recruit a cleaner locally and allow £8 per hour". He bases this on the rates set by the National Joint Council for Local Government Services. He accepted, however, in answer to a question from me, that it is well known that the demand for services of this kind is rapidly expanding due to the combination of increased longevity and decreased local authority funding for community care. The days of a ready supply of cleaners and cooks eager to accept work from individual householders at barely more than the minimum wage are passing.
Ms Kirby recommends a resident housekeeper, but on hourly rates said that she strongly disagreed with Mr Pawson's figure of £8 per hour. She said that nowadays one should expect to pay £16 per hour for a cook/cleaner provided through an agency and at least £12 per hour for someone recruited direct, if you could find one. She later accepted that if the going rate in an area were £10 for direct hiring, the agency rate, involving a commission of about 20%, would be £12.50; but I did not understand her to be retracting her earlier figures. (The Schedule to her report contains lower figures, but it also has a number of calculation errors, and I prefer her evidence before me in the witness box.)
Mr Steinberg submits that if I am against him on provision of a resident housekeeper, I should allow the agency rate for cooks and cleaners, since that would ensure a continuity of services similar to that provided by Mrs Knauer, and save the Claimant from having to recruit direct.
In my view it would not be reasonable to require the Defendant to pay for a resident housekeeper to replace what has been lost, if broadly similar services could be obtained by other means. But I accept Mr Steinberg's alternative submission that such continuity of services could only be provided through an agency. I allow 20 hours per week at £16 per hour, which totals £16,640 per year.
In addition a claim is made for a gardener at £1,750 per year; hedge trimming services at £350 per year, decorating at £750 per year; £624 for online shopping delivery charges and £150 for travel costs. I disallow the last two items: I am not satisfied that online delivery charges will have to be incurred, nor that the cost to the family of driving to the shops will be increased. I allow 75 hours per year (2.5 hours per week for 30 weeks) for gardening and 50 hours per year for decorating. As to hourly rates for these, Mr Pawson would allow £10 per hour: Ms Kirby said with some force that "you would never get someone for that". Neither is in truth an expert on gardening or decorating, and it would have been disproportionate for such experts to have been called. I allow £12 per hour under these headings also. The figures are therefore £900 pa for gardening and £600 pa for decorating.
The multiplicand is therefore £18,140.
The period from Mrs Knauer's death to the date of trial is 4.86 years. The total award for past services dependency is therefore £88,160.
Future services dependency
The multiplier put forward by Mr Steinberg is 18.15. Mr Poole's is slightly higher (18.6) although his suggested multiplicand was far lower. I accept Mr Steinberg's figure.
The figure for future services dependency is therefore £329,241.
Loss of intangible benefits
Mr Steinberg's original contention in the Claimant's schedule of loss that an award of £10,000 should be made was over-ambitious. Mr Poole submits that this award is conventionally a much lower sum. Having regard to the long list of decisions cited in Kemp and Kemp at 29-052, in particular that of Mackay J in Fleet v Fleet, I accept Mr Poole's figure of £3,000.
Law Reform Act:
Pain, suffering and loss of amenity: £80,000
Care costs etc during illness: £17,420.91
Inability to provide services: £5,749.60
Fatal Accidents Act:
Funeral expenses: £2,283
Past income dependency: £23,182
Future income dependency: £82,136
Past services dependency: £88,160
Future services dependency: £329,241
Loss of intangible benefits: £3,000
The total award excluding interest is therefore £642,972.51
I do not understand it to be in dispute that the claimant is entitled to interest at 2.44% on awards relating to the period up to the date of Mrs Knauer's death and at half that rate for losses covering the period from that date to the date of this judgment. I invite counsel to agree the figures.
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