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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mosson v Spousal (London) Ltd  EWHC 53 (QB) (25 January 2016)
Cite as:  WLR(D) 41,  EWHC 53 (QB),  4 WLR 28
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Spousal (London) Ltd
Mr Matthew Boyle (instructed by BLM (Manchester)) for the Defendant
Hearing dates: 17th December 2015
Crown Copyright ©
Mr Justice Garnham:
i) Contributory negligence;
ii) Damages for pain, suffering and loss of amenity;
iii) Funeral expenses;
iv) The cost of probate;
v) Loss of earnings during life;
vii) Future loss of income dependency;
viii) Loss of intangible benefits;
ix) Services dependency.
"I worked on a self-employed basis during this time for two companies. The first was approximately from 1976 to 1987 called Stuarts Insulations which at one point shut down and then reopened as CEP Ltd…
During this self-employed period I worked from approximately 1987 to 1993 for a company called Quest Insulations Ltd."
"Ought the University reasonably to have foreseen the risk of contracting mesothelioma arising from Mr William's exposure to asbestos fibres by undertaking the speed of light experiment in the tunnel in the manner contemplated – and done in fact – to the extent of the University should (acting reasonably) have refused to allow the test to be done there, or taken further precautions or at least sought advice."
"That brings me to the second important point. The understanding of asbestos – related diseases and the extent to which exposure to even very small quantities of asbestos fibres can have dire consequences has grown over the years. The question of what the University ought reasonably to have foreseen about the consequences of any exposure to asbestos fibres in the course of experiments in the tunnel and the reasonable conduct that the University ought to have adopted must be judged by reference to the state of knowledge and practice as at 1974."
"The duty of care must be to take reasonable care (including measures if necessary) to ensure that Mr Williams was not exposed to a foreseeable risk of asbestos related injury. A reference to exposure 'to a material increase in the risk of mesothelioma' brings the test for causation in mesothelioma cases into the prior questions of the nature of the duty and what constitutes a breach of it. There is nothing in either Fairchild or S v G to suggest that either the House of Lords or the Supreme Court has altered the 'breach of duty' test in mesothelioma cases so that a claimant only has to demonstrate that the defendant failed to take reasonable steps to ensure that the claimant or victim was not exposed to a 'material increase in the risk of mesothelioma'."
"But, assuming that the exposure was more than de minimis, it was, in my view, necessary to ask a further question. That is whether given the degree of actual exposure it ought to have been reasonably foreseeable to the University (with the knowledge a reasonable university should have had in 1974) that as a result Mr Williams would be likely to be exposed to the risk of personal injury in the form of contracting mesothelioma."
"Once contributory negligence has been established, the Court must take into account both the extent of the claimant's responsibility for his injury and damage and the blame worthiness of his conduct as opposed to that of the defendant in deciding on the reduction in damages that is just and equitable."
Valuation of the Claims
The Law Reform (Miscellaneous Provisions) Act 1934
General Damages for Pain, Suffering and Loss of Amenity
"This was a devastating illness – Mr Mosson suffered terribly – made exceptional by the unusually long period of suffering (i.e. 26 months)."
i) Beesley v New Century Group Ltd  EWHC 3033 (QB) Hamblen J;
ii) Fleet v Fleet  EWHC 3166 (QB) Mackay J;
iii) Najib v John Laing Plc  EWHC 1016 (QB) Nicola Davies J;
iv) Zambarda v Shipbreaking (Queenborough Ltd)  EWHC 2263, Kemp on Lawtel, Mr John Leighton-Williams QC sitting as deputy High Court Judge;
v) Knauer v Ministry of Justice  EWHC 2553;  All ER (D) 250;
vi) Ghoorah v West Essex Clinical Commission Group [Lawtel, 5 December 2014] HHJ Allan Gore QC, sitting as a deputy High Court Judge.
Costs of Probate
Past Loss of Earnings
"A wrongdoer is not to be allowed to reduce damages by the fact that other persons had made up to the plaintive his wages… In point of law, therefore, prima facie he should have been paid by the wrongdoer. As they had been made up to him by other people who expect to be repaid, I think it is proper that that sum should be included as damages, but subject to the direction of the amount paid to the plaintive by the Ministry of Pensions and the London County Council shall be paid to those bodies out of the sums recovered."
The Fatal Accidents Act Claim
Loss of Services
Loss of Intangible Benefits
"79. The claimant submitted that this is an appropriate case for such an award, which is based on the premise that Mrs Beesley has not just lost domestic services, but on the extra value that is derived from having such help provided by a husband and friend; see Regan v Williamson  1 WLR 305. It was submitted that a reasonable award would be £3,000.
80. The defendant submitted that this was not a maintainable head of claim. It was contended that it was contrary to the principle that Fatal Accident Act damages are only awarded for financial or pecuniary loss. The statutory award for bereavement covers any non-financial loss.
81. However, it is clear that there have been a number of cases in which such awards have been made. In Regan v Williamson, which followed the Court of Appeal decision in Hay v Hughes  QB 790, the dependency figure for the loss of the services of a mother was increased to reflect the benefit of the personal attention to a child's upbringing which a mother provided and which could not be replaced by a housekeeper, nanny or child minder, although no separate award was made. However, in Mehmet v Perry  2 All ER 529 a separate award was made to the children and the approach extended to the husband's claim and a separate award was made to him as well. Subsequent cases have followed this approach.
82. The defendant submitted that properly understood the authorities of Regan and Hay are only applicable to claims by children and then only to the extent of reflecting the loss in an increased multiplicand for the services dependency, not in a separate award.
83. In my judgment the principle of making awards for loss of intangible benefits is now well established – see Kemp and Kemp [29-052]. It reflects the fact that services may be provided by a mother, wife, father or husband over and above that which may be provided by a paid replacement. In principle there is no reason for differentiating between the position of children and spouses in connection with the availability of such awards.
84. In relation to services provided by a husband or father the position is summarised in Kemp and Kemp at p29074 as follows:
'Awards of this kind have also been made to a widow or child for the loss of services provided by a deceased husband or father. There is no reason in principle why such awards should not be made where the services provided by a husband or father justify it on the facts. Such awards ought to be in proportion to the more conventional awards already noted for wives/mothers. This will mean that they will be lower in the average claim where the deceased husband/father was the family breadwinner.'
85. The present case is a good illustration of why it may be appropriate to make such an award to a widow. So, for example, 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 to find and choose commercial providers, and to have to work around the hours that suit them for the work in question.
86. I therefore consider that such an award can be made, that this is an appropriate case for such an award to be made and that the suitable figure is £2,000. "
"Although in its origin it was an attempt by the Court to value the services of a mother or a father to a child over and above the commercial cost of replacing him or her, it has sometimes been extended to cases involving spouses. That should not be an automatic extension in my view. The features of this case that I think justifies an award is that Mrs Fleet was considerably older than her husband and would as the years have gone on needed more than usual care which I have doubt he would have been happy to provide and provided extremely well. I think £2,500 is appropriate to award under this head."
"A bereavement award is an oddity in the law of damages. The fundamental principle in personal injury claims is that the claimant should be compensated for his or her loss. Therefore a claimant needs to prove the loss, and an attempt to quantify it must be made. However, bereavement awards are subject to no such condition. Once the relative has proved he or she was within the specified class of claimant and that the defendant is liable, then an award is made. There is no need to prove any actual loss suffered by the relatives; the Court assumes certain people will inevitably be adversely affected by the death of a close relative. There is no right to seek to argue for any additional or higher sum in the event of extreme suffering. This may seem an arbitrary approach awarding damages, but the alternative has long been considered to be against public policy…"
i) Although the deceased was self-employed and was exposed to asbestos during the course of that self-employment, the defendants have not established on the balance of probability that that exposure was as a result of a negligent failing by the deceased himself.
ii) For pain, suffering and loss of amenity there will be an award of £85,000.
iii) In calculating funeral expenses, no account can be taken of the cost of the wake, mourning clothes or the memorial bench.
iv) There will be no award in respect of probate expenses.
v) In respect of past loss of earnings the subjugated claim to £15,914.61 will be allowed.
vi) The bereavement award will be £12,980.
vii) Loss of earnings will be calculated on the basis that, but for the mesothelioma, the deceased would have worked to age 70.
viii) For loss of services, there will be an award of £7,500.
ix) For loss of intangible benefits there will be no award.