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||Neutral Citation Number:  EWHC 1663 (QB)
||Case No: HQ14A03229
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||30 June 2017
B e f o r e :
MARTIN CHAMBERLAIN QC
(Sitting as a Deputy High Court Judge)
|| PATRICIA GEORGINA GRANT
(widow and executrix of the estate of
DOUGLAS MICHAEL GRANT, deceased)
||- and -
||THE SECRETARY OF STATE FOR TRANSPORT
Harry Steinberg QC and Patrick Kerr
(instructed by Charles Lucas & Marshall) for the Claimant
Patrick Limb QC (instructed by DWF LLP) for the Defendant
Hearing date(s): 10, 11 and 12 May 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Martin Chamberlain QC :
- Mr Douglas Grant was born on 26 May 1944. He left school in 1959 and was employed by the British Railways Board ("BRB") at their depot in Swindon until December 1960. He was based in the boiler shop and was exposed to asbestos in the course of his work. In July 2011, at the age of 67, he started to suffer from chest pain and breathlessness. He underwent treatment in hospital and in November 2011 was diagnosed with mesothelioma. He had three courses of chemotherapy. In the latter part of 2014 his condition deteriorated. He died on 18 November 2014, aged 70, after considerable suffering.
- The Claimant, Mrs Patricia Grant, was born on 9 January 1943. She was at school with Mr Grant and knew him from a very early age. They began a relationship in 1975. They lived together for 38 years, until Mr Grant's death. They married in 2012. They did not have children. Their devotion to one another is demonstrated by the physical and emotional support she provided to him during his illness and by the efforts he made after learning of his diagnosis to ensure that she was provided for after his death. The Claimant is executrix of her late husband's estate.
- The Defendant is successor to the liabilities of the BRB. He accepts that Mr Grant's exposure to asbestos while employed by the BRB materially increased his risk of contracting mesothelioma; and, accordingly, that he is liable to Mr Grant's estate under the Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act") and to Mrs Grant under the Fatal Accidents Act 1976 ("the 1976 Act"). Quantum is not agreed. The heads of loss that remain in dispute are:
i) Under the 1934 Act:
a) general damages for pain, suffering and loss of amenity;
b) care and assistance;
c) business expenses;
d) certain miscellaneous expenses;
e) certain funeral expenses.
ii) Under the 1976 Act:
a) past income dependency;
b) past services dependency: domestic services;
c) past services dependency: business services;
d) future income dependency;
e) future services dependency;
f) loss of intangible benefits.
- Before considering these heads one by one, it is necessary to set out some of the background facts.
The witness evidence
- I heard oral evidence over two days. In addition to the Claimant herself, evidence was given on her behalf by Mr James Muir (a property developer and friend of Mr Grant), Ms Jodie Brookes (a nursing and care expert) and Mr Peter Barefoot (a property development expert). The Defendant's expert evidence was given by Ms Linda Stewart (nursing and care) and Mr James Lockhart (property development). There was written expert evidence from Prof. N.A. Maskell about Mr Grant's life expectancy had he not contracted mesothelioma, which was agreed. Prof. Maskell also gave written evidence about the Claimant's life expectancy, which, after discussion with the Defendant's expert Prof. David Bowen Jones, also resulted in an agreement.
The facts in outline
Mr Grant's business and other activities before he became ill
- The Claimant described her late husband as a "workaholic". The description was not challenged and I accept it. After leaving the employment of BRB, he built up a successful fruit and vegetable business, starting with a market stall in Swindon and going on to establish stalls and then shops in other towns nearby. He diversified into cash and carry and acquired a site in Swindon that could be used for parking lorries. He acquired another site for car parking and obtained planning permission for its use as a Saturday and Sunday market. In order to protect this business, he purchased a nearby public house and let it to a tenant. In 1986, he bought a farm of 100 acres on Lechlade Road at Highworth, about 6 miles from the centre of Swindon.
- Competition from supermarkets made it increasingly difficult for fruit and vegetable traders to source produce, so Mr Grant decided to get out of that business. In 1998, he sold the market site to a developer for £1.35m. He used part of the money to build a house for himself and the Claimant on the farmland at Lechdale Road. He entered into negotiations with the local authority about the use of the remaining land and in 2001 obtained planning permission for a golf course, club house and driving range. Having negotiated with an electricity company to raise some electricity poles, he bought four lorries, a stone crusher and a yard at Marshgate to store this equipment. He went on to establish a company selling and recycling stone and tarmac, Swindon Reclamation Ltd. Mr Grant realised that there was a demand for a facility capable of accepting and recycling broken-up stone and other building materials from sites in the vicinity; he ensured that Swindon Reclamation was able to accept such material at times when other local authority-run sites would not; having obtained the necessary waste licences, he then sold some of the material on and used the rest in the construction of the golf course. He sold Swindon Reclamation in 2009 for £778,000. By this time, the golf course, a nine-hole course designed to appeal to new players and seniors, was nearly ready. It opened on 18 October 2010. Mr Grant managed it himself, employing a chef, receptionist and green keeper. In September 2011, planning permission was extended to allow the clubhouse to be used for functions.
- Of the 100 acres of farmland Mr Grant had bought in 1986, only 80 were required for the golf course. The remaining 20 lay between the golf course and the existing Blackworth Industrial Estate. In a witness statement prepared for these proceedings, Mr Grant described these 20 acres as "a wedge of agricultural land sitting there between the two", which he aimed to use for development purposes. Mr Lockhart suggested that the location of the golf course may have been designed to "trap" this site so as to make it more likely that the local authority would agree to change its permitted use. He described this, aptly in my view, as a "shrewd" move.
- Mr Grant said in his witness statement that he started applying for planning permission to develop the site as long ago 1996. During the trial, the Claimant produced a document prepared in May 2008 by Turley Associates, a respected local firm of planning consultants. It contains representations, made on Mr Grant's instructions, on the Swindon Borough Local Development Framework Core Strategy 2006-2026 (Preferred Options) Report. Among those representations is a justification for the re-allocation of Mr Grant's 20-acre site for economic development (rather than agricultural use). The Claimant said, and I accept, that Mr Grant had always intended to develop and derive income from the site and that he had referred to it as their "pension".
- Mr Grant explained in his witness statement that, before the onset of his mesothelioma, he would help his wife in the house, doing decorating and gardening. He did a small amount of DIY. He would jet wash the patio, clean the guttering and maintain the drive. Mrs Grant said in evidence that she prepared the meals.
The course of Mr Grant's illness
- Although the parties' positions are not far apart, the award for pain, suffering and loss of amenity is not agreed. There is also a dispute about the quantum of the award for care and assistance. This makes it necessary for me to describe, in outline at least, the course of Mr Grant's illness.
- The first sign of trouble was a pain in Mr Grant's chest, which he noticed in July 2011. Two or three weeks later, he started to experience breathlessness. He went to his GP and was referred for an X-ray at Great Western Hospital, Swindon. On three occasions, fluid had to be aspirated from his pleural cavity. He was referred to the Brompton Hospital for a pleural biopsy and, on 18 November 2011, diagnosed with mesothelioma. He was told that the condition was incurable and offered palliative chemotherapy with a view to minimising his symptoms for as long as possible.
- Mr Grant had two courses of chemotherapy administered intravenously. Each consisted of six cycles with breaks in between. The first course lasted from December 2011 to April 2012, the second from January 2013 to April 2013. In the spring of 2014, he had a third course of chemotherapy. This was an experimental treatment, administered by tablets, which again consisted of six cycles. It did not help. In October 2014, he was referred for palliative radiotherapy at Oxford. He travelled for an appointment prior to commencement of treatment but, though determined to return, was never well enough to do so.
- In her witness statement, the Claimant describes some of the distressing symptoms caused by the chemotherapy, which included ringing in the ears and hallucinations, as well as nausea and vomiting. There were also other symptoms associated either with the progress of the disease or with the medication prescribed to alleviate its symptoms. At one point, Mr Grant's legs and feet became swollen and he used to have to sit with a towel under his feet to absorb the fluid oozing from them. There came a time when his feet were so swollen that he could no longer put his shoes on.
- The Claimant properly accepted in cross-examination that, insofar as there was a divergence between the medical notes and her own recollection of what happened when, the former were likely to be more reliable. There is no doubt that there were times during the courses of chemotherapy and between them when Mr Grant endured considerable discomfort and suffering. The medical notes make clear, however, that there were also times, even during the courses of chemotherapy, when no, or only mild, adverse effects were reported to his oncologists and when he was able to work for as much as 75 hours per week.
- From July 2014, Mr Grant started to experience severe pain at the site of the tumour in his chest and back. Higher doses of morphine were prescribed and, possibly as a result, the hallucinations that he had suffered during chemotherapy returned. Mr Grant became increasingly incapacitated in every respect. The Claimant provided extensive support, day and night. In the end, it was not possible to control Mr Grant's pain. The Claimant described the last weeks of his life in terms that attest, as her oral evidence also did, to the indelible mark they have understandably left on her.
The development site
- It is clear from the evidence that, before his diagnosis, Mr Grant intended to develop and derive a profit from the site at Highworth himself. There is a dispute about whether he would have been able to do that successfully, given his age and limited experience in commercial property development. At all events, once he received his terminal diagnosis, he began to make plans to ensure that the development could proceed, for the benefit of his wife, after his death. As must have been obvious to Mr Grant, the Claimant did not herself have the skills or inclination to manage or promote the development.
- Mr Grant had known Mr Muir, a qualified quantity surveyor and project manager, since 1990. The two became friends. Mr Grant confided in Mr Muir soon after receiving his diagnosis and began to discuss with him proposals for the site. The first difficulty was that planning permission for commercial development was unlikely to be granted while the land remained allocated for agricultural use in the local plan. From 2012, Mr Muir accompanied Mr Grant to some planning meetings about this.
- The solution fixed upon between Mr Grant and Mr Muir, in consultation with Mr Neil Morley (Mr Grant's accountant) and Mr Nick Buckley (his solicitor), was the creation of a development company, Highworth Business Park Ltd ("HBP"), to be owned 50% by Mr Muir and 50% by Mr Grant (with his shares passing to the Claimant on his death). The company was incorporated in July 2014, with Mr Muir as sole director. On 15 August 2014, Mr Grant entered into an agreement with HBP under which he granted HBP the option to buy the development site. The price was to be determined according to a mechanism set out in the schedule to the option agreement. The parties were to attempt to agree a figure immediately upon exercise of the option and, in default of agreement within 21 days, the matter was to be referred to an independent valuer.
- In January 2015, shortly after Mr Grant's death, Swindon Borough Council changed the allocation of the site in the local plan from agricultural to employment use. It is not clear whether this was due to the efforts of Mr Grant or those of Mr Muir or both. That cleared the way for Mr Muir to enter into negotiations with the supermarket chain Aldi to sell a small part of the land for £1.25m, subject to Aldi successfully obtaining planning permission and to the installation by HBP of services and an access road. Aldi have an impressive record in obtaining planning permission for sites such as this and would not have spent time and money negotiating an agreement with HBP if they did not think there was a good chance of success. That being so, the property development experts agree that there is a 65% chance that the transaction will complete. This is expected to yield a profit to the development company of £208,000 (the Claimant and Mr Muir will each receive £104,000) and a payment to the Claimant of £162,000, reflecting the residual land value due under the option agreement less the cost of installing the services and access road. Mr Muir hopes and expects that the presence of Aldi, together with the installation of services and an access road, will attract interest in other parts of the site. Both the development experts agree that the development of the site for substantial profit is feasible, though they disagree on the likely timescales.
- Although HBP has exercised its option to purchase from the Claimant that portion of the site required by Aldi, it appears that the mechanism for ascertaining the residual land value has not yet been triggered as, under the option agreement, it should have been. Mr Muir explained that it was envisaged that the residual land value would be calculated for each portion of land as that portion is disposed of. The price to be paid by HBP to the Claimant for the portion required by Aldi would be calculated and paid once the current transaction completes.
The claim on behalf of the estate under the 1934 Act
General damages for pain, suffering and loss of amenity
- The Judicial College Guidelines (2015) suggest a bracket of £53,200 to £95,700 for mesothelioma. They provide 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 involves causing additional pain and/or breathlessness, the level of 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."
- As Hamblen J noted in Beesley v New Century Group Ltd  EWHC 3033 (QB), at , "[t]he JSB Guidelines represent current best practice based on up to date judicial decisions". It was accepted by both parties that they should form the basis of my assessment of the award for pain, suffering and loss of amenity in this case. The parties also agree that the award in this case should be towards the upper end of the bracket, given that the duration of the symptoms from first onset to death (40 months) was considerably longer than usual for cases of mesothelioma.
- Mr Harry Steinberg QC, for the Claimant, relied on a number of comparator cases and produced a table of the awards in those cases for pain, suffering and loss of amenity, uprated for inflation. The present value of the award in Beesley v New Century Group (where the deceased had been 62 at the time of death and had endured symptoms for 17 months) was £91,073. Other inflation adjusted awards were as follows: Fleet v Fleet  EWHC 3166 (QB) (death at 56, symptoms for 22 months) – £95,737; Najib v John Laing plc  EWHC 1016 (QB) (estimated that the claimant would survive 26 months with symptoms and die at the age of 71) – £91,911; Zambarda v Shipbreaking (Queenborough) Ltd  EWHC 2263 (QB) (death at 70, symptoms for 6 months) – £83,583; Knauer v Ministry of Justice  EWHC 2553 (QB) (death at 46, symptoms for 7 months) – £84,156; Ghoorah v West Sessex Clinical Commissioning Group (Lawtel, 5 December 2014) (death at 45, symptoms for 6 months) – £91,509; Mosson v Spousal (London) Ltd  EWHC 1429 (QB) (death at 66, symptoms for 26 months) – £88,448; Wolstenholme v Leach's of Shudenhill Ltd  EWHC 588 (QB) (death at 70, symptoms began 44 months before death, increasingly severe from 29 months prior to death) – £92,826; Davey v Shaw-Saville & Albion (Lawtel, 30 March 2017) (death at 88, symptoms for 42 months) – £90,000.
- Mr Patrick Limb QC, for the Defendant, referred me to a number of cases where the awards for pain, suffering and loss of amenity were lower, even after applying the uplift required by Heil v Rankin  QB 272. In Worrall v Powergen plc (Lawtel, 17 November 1998) (death at 66, symptoms for 15 months), the inflation-adjusted award was £80,048. But that award was made more than 18 years ago. It is not as reliable an indicator of current judicial practice as are the more recent cases relied upon by Mr Steinberg. Mr Limb also made reference to other cases in which the awards for pain, suffering and loss of amenity had been agreed between the parties. Cases where the award is the result of settlement are not irrelevant, particularly where the award had to be approved by the court. But they do not provide as reliable a basis for assessment as cases where the award was fixed by judicial decision after a contested hearing.
- Mr Limb submitted that Mr Grant's symptoms were not sufficiently far from the norm to justify an award right at the top end of the bracket. I bear in mind that some of the symptoms suffered by Mr Grant were typical for mesothelioma. But the evidence discloses five factors that justify an award close to the top end of the bracket in this case. First, the duration of Mr Grant's symptoms (40 months) was unusually long. Second, he had three courses of chemotherapy, which at times had extremely unpleasant side-effects, described by the Claimant in her witness statement and evidence. These included not only the nausea, vomiting and general debilitation often associated with chemotherapy, but also hallucinations, which must have been frightening for Mr Grant, as they plainly were for the Claimant. Third, although the evidence establishes that Mr Grant sometimes worked for long hours after his diagnosis, at least in the period before 2014, the Claimant described him suffering symptoms of breathlessness, intermittent pain and night sweats during this period. He was prescribed morphine from January 2014 and reported severe pain from July 2014. Fourth, the pain Mr Grant endured in the last months of his life, between July and November 2014 was, on the evidence, extreme. It was not adequately controlled by medication. The Claimant describes Mr Grant waking during the night, both at the Great Western Hospital and in the last week of his life at the Prospect Hospice, crying out in pain and asking to be allowed to die. He was completely incapacitated in these last months and doubly incontinent. Fifth, Mr Muir's evidence establishes that Mr Grant was concerned to ensure that the Claimant was provided for after his death. The discussions he initiated with Mr Muir and the incorporation of HBP were directed to that end. But he must have known that the success of the development was far from certain and this would, I find, have been a significant source of concern to him in his last months.
- In my judgment, bearing these factors in mind and in the light of the awards made in the comparator cases, the appropriate award for pain, suffering and loss of amenity is £92,500.
Care and assistance
- The basis for awards for care and assistance (or care and attendance) is explained in Mills v British Rail Engineering Ltd  PIQR Q130. Dillon LJ said this at Q137:
"To my mind there can be no justification in principle for differentiating between full-time care needing really a trained nurse and full-time care needing a carer giving love and affection to the patient, the dying person, to a degree far more than would be expected in any ordinary way of life. In principle it must be, in my judgment, a matter for an award only in recompense for care by the relative well beyond the ordinary call of duty for the special needs of the sufferer. The basis… is that the court will make an award to enable the sufferer or his estate to make reasonable recompense to the relative who has cared so devotedly. So it must indeed only be in a very serious case that an award is justified—where, as here, there is no question of the carer having lost wages of her or his own to look after the patient." (Emphasis added.)
Staughton LJ added this at Q139:
"…it is now established that a plaintiff can recover damages for nursing care by a relative even if he has not had to pay for it and even if that relative has not lost remuneration elsewhere. I can see no ground for restricting this head of loss to professional nursing so as to exclude care and attendance by an unqualified person… It seems to me that a plaintiff would naturally wish to pay some reward or compensation, if he had the money to do so, for care and attendance by a relative which goes distinctly beyond that which is part of the ordinary regime of family life; and, where his disability has been caused by the fault of the defendant, it is right that he should be provided with the money to do so. It will often be difficult, or even impossible, to measure with complete accuracy what reward or compensation a reasonable plaintiff would pay to the relative in those circumstances, even though this is said to be a head of special damages. The sum should be modest and not extravagant." (Emphasis added.)
- The Court of Appeal has since noted that the words "well beyond the ordinary call of duty" used by Dillon LJ at Q137 were replaced with a slightly less stringent formulation at Q138 ("beyond what a wife would anyhow be doing for her husband") and that it was this latter formulation that had actually been applied: Giambrone v Sunworld Holidays Ltd  EWCA Civ 158,  PIQR Q4, per Brooke LJ at ; see also Beesley, per Hamblen J at .
- In Evans v Pontypridd Roofing Ltd  EWCA Civ 1657,  PIQR Q5, at , May LJ (with whom Rix and Ward LJJ agreed) endorsed the view that there should be no award for hospital visits "arising from family affection and not given for the purposes of providing services which the hospital did not provide". But he went on at  to say this:
"There will be many cases in which the care services provided will be limited to a few hours each day. The services should not exceed those which are properly determined to be care services consequent upon the claimant's injuries, but they do not, in my view, have to be limited in every case to a stop-watch calculation of actual nursing or physical assistance. Nor… must they be limited in every case to care which is the subject of medical prescription."
- There is nothing in the authorities to which I was referred that rules out an award for the time spent in providing emotional, as well as physical, support. I suspect that many professional nurses, especially those practising in palliative care, would find it hard to draw a clear distinction between the two. Sometimes, the care required will be physical; at other times, it will consist simply of comfort. In the case of a patient like Mr Grant suffering from hallucinations or night sweats, for example, some nursing care was plainly required. I do not read the authorities as requiring the court to draw distinctions of a kind a nurse (or a family member) would rightly regard as artificial between the physical and emotional elements of that care, provided always that the need for it arises from the injury for which the defendant is responsible. Mr Limb made reference to the decision of Underhill J in Huntley v Simmonds  EWHC 405 (QB), at , where there was no award for the time spent by relatives in hospital visits in the absence of evidence that they were providing services not provided by the hospital staff. But in that case – as Mr Limb properly pointed out – the patient had been in a coma, so was on any view not receiving emotional support.
- The Claimant's evidence as to the value of the nursing care she provided to Mr Grant was given by Ms Jodie Brookes. She is a registered nurse. The majority of her career has been spent managing care facilities in the private sector. She specialises in palliative care and has considerable experience nursing patients with mesothelioma. Ms Brookes gave careful and impressive oral evidence. She made concessions where appropriate, yet demonstrated that her conclusions were based on a careful review both of the medical notes and of what the Claimant had told her when she visited. The claim for care provided by the Claimant was for 3 hours per days in the period from 1 September 2011 to 1 September 2014 (amounting to £29,666.37: schedule 1 to her report); an additional 9 hours per day for the periods of chemotherapy (£13,577.76: schedule 8); 10 hours per day, reflecting full time care in the period 2 September to 11 November 2014 (£6,349: schedule 2); 9.5 hours per day from 12 to 18 November 2014 when Mr Grant was at the Prospect Hospice (£603.16: schedule 5); time spent travelling to and from hospital/hospice, and visiting Mr Grant (£1,572.13: schedules 7, 9, 10 and 11). In addition, there was a claim for 7 hours per week from 1 June to 18 November 2014 spent by the Claimant's brother, who came to the golf course to pick up golf balls (£1,541.90: schedule 3); 8 hour per day of respite care provided by the Claimant's niece Jessie Bunce in the last 14 days prior to Mr Grant's admission to the Prospect Hospice (£1,015.84: schedule 4). In the schedule of loss, these raw figures were discounted by 20% to reflect the incidence of tax and national insurance. There was originally a claim for a £900 donation to the hospice, but Mr Steinberg sensibly did not pursue this at trial. The total claimed was therefore £43,220.93.
- The Defendant's evidence was given by Ms Linda Stewart. She is a registered mental nurse. She has held various clinical posts in general and mental health nursing. In cross-examination, she accepted that she was not a specialist in palliative care, although she had nursed a few mesothelioma patients. Having not had the opportunity to visit or speak to the Claimant, Ms Stewart's conclusions were based on her review of the medical notes. She disagreed with Ms Brookes' assessment that 3 hours per days would have been required in the period 1 September 2011 to 1 September 2014 (not including the additional 9 hours per day during the periods when Mr Grant was receiving chemotherapy). She noted that there was no evidence in the medical notes that the tasks Ms Brookes says the Claimant undertook represented help required as a result of Mr Grant's illness. In particular, there was there was no evidence that Mr Grant's illness meant that he was unable to bend over so as to require help putting on his socks and shoes (she noted that, even before the illness, he had a high body mass index) and no evidence that he was cognitively unable to manage his own medication. Insfoar as time was claimed for preparation of meals, this was something the Claimant would have done anyway. She noted that neither the claimed hallucinations nor the vomiting associated with chemotherapy are recorded in the medical notes. She placed particular stress on Mr Grant's "performance status" as recorded in the medical notes using the Eastern Co-operative Oncology Group/World Health Organisation scale. This, she noted, was often assessed at 0 (fully active, able to carry on all pre-disease performance without restriction) or 1 (restricted in phsycially strenuous activity but ambulatory and able to carry out work of a light or sedentary nature, eg light house work, office work). The Defendant suggests a figure of £7,339.89 for care and assistance.
- The authorities recognise the impossibility of a precise calculation for this head of loss: see eg Mills, per Dillon LJ at Q138; Beesley, per Hamblen at . Any assessment must inevitably paint with a broad brush. My conclusions, having considered the written and oral evidence, are as follows.
- First, Ms Stewart's approach was to make no allowance for nursing care or assistance in relation to any claimed symptom unless that symptom was specifically mentioned in the medical notes. The consequence was that she did not make specific allowance for any care provided in relation to (for example) the hallucinations or vomiting or night sweats that the Claimant described. In my judgment, this approach resulted in an overestimation of the evidential value of the medical notes and an underestimation of the evidential value of the Claimant's own description of her husband's symptoms and the care she provided in relation to them. The medical notes reflect what Mr Grant, a stoic workaholic, told his treating clinicians about his state of health. The Claimant's evidence, which I accept as truthful, was that her husband suffered from hallucinations and vomiting during the period when he was receiving chemotherapy. The fact that they are not recorded in the medical notes does not mean that he did not suffer them. Ms Brooks, on the other hand, properly took into account the Claimant's own evidence, together with her own experience of the kinds of symptoms typically suffered by mesothelioma patients. An award for the nursing care provided in respect of these symptoms is appropriate.
- Second, Ms Stewart's summary of the "performance status" recorded in the medical notes did not recognise what was apparent from the notes themselves, namely that Mr Grant's performance status score had been higher than 1 (indicating greater difficulty) before May 2014. There was no recognition of the fact that Mr Grant required oxygen from July 2014 or that, in the last months, he was doubly incontinent. In any event, the reliance on performance status as recorded was open to the same criticism as set out above: it undervalued the Claimant's own descrption of her husband's symptoms and the care she provided.
- Third, the approach taken by Ms Stewart in relation to the care provided by the Claimant during the last months of her life seems to me to be wrong in principle. Even in respect of the period 22 September to 9 November 2014 (ie the period immediately before Mr Grant went to the hospice), only 4.5 hours per day is allowed. But that is to adopt a "stop-watch calculation of actual nursing or physical assistance", the approach deprecated by May LJ in the passage from Evans set out above. It may be that the time spent actually performing the physical tasks allowed by Ms Stewart took only 4.5 hours. But the Claimant had to be on hand at all times of the day and night to attend to these tasks when required. One can test the point by asking what would have happened if Mr Grant had had no family member of friend able to provide that care: he would obviously have required full-time care in a hospital or hospice, or the attendance of a full-time professional carer. I accept Ms Brookes' view that the award should reflect the fact that what the Claimant provided from 1 September 2014 was, in essence, full-time care.
- Fourth, however, Ms Brookes's estimates contain an element of double counting. Her estimate of 3 hours' care per week was, she said in cross-examination, an average designed to reflect the fluctuations in Mr Grant's symptoms. Prior to July 2014, some of the worst symptoms were suffered during the periods when Mr Grant was receiving chemotherapy, but these are accounted for separately, in addition to the 3 hours per day claimed for the whole period 1 September 2011 to 1 September 2014. Once the care attributable to the chemotherapy symptoms are taken out of account, the average of 3 hours per day is in my view too high, given that, for substantial portions of this time, Mr Grant was working very long hours. Taking the evidence as a whole, I would reduce this to 1.5 hours per day on average. This reduces the raw value of the claim for care and assistance by about £15,000 (or £12,000 after the 20% discount is applied).
- Fifth, some of the sums allowed in Ms Brooks' report for periods when Mr Grant was in hospital or in the hospice are too high. It was natural and commendable that the Claimant wanted to be with her husband at these times, but the authorities make clear that awards for nursing and assistance whilst a patient is in hospital will be rare. Some allowance may be made for the emotional support provided at these times, but the award should be modest. I have reduced the award claimed by £1,000 (after the 20% discount is applied) to reflect this.
- Sixth, I would also disallow any award under this head in respect of the time spent by the Claimant's brother helping at the golf course. This part of the award is for nursing and assistance. Once allowance has been made to pay the Claimant for nursing and assistance provided by her, there is no room for any additional award to another person for doing the work that she would otherwise have done. (I also note that there is no convincing evidence that the work the Claimant's brother did is work the Claimant would otherwise have done.) This reduces the award by about £1,200 (after the 20% discount is applied).
- On this basis, I would award £29,000 for nursing and assistance.
- The claim for business expeses relates to the services of three individuals: John Taylor (£11,500 paid between December 2012 and November 2014), Kate Pothecary (£20,304 paid between January 2013 and June 2014) and Alison Enevoldsen (£1,457.75 paid between October 2014 and November 2014), giving a total of £33,261.75. In the updated schedule of loss and damage, the Claimant said that it was necessary to engage these individuals to perform tasks in the golf course business that Mr Grant and the Claimant would have done if Mr Grant had not become ill. In paragraph 24 of her witness statement, the Claimant explained that Mr Taylor was engaged to deal with "front of house… memberships and questions about golf and the driving range which my husband would have done" and that Kate Pothecary was also engaged (though her duties were not set out). Alison Enevoldsen was engaged to replace the services of the Claimant, who had previously helped in the kitchen and bar. In reply to a Part 18 request, the Claimant indicated that these three individuals were engaged as self-employed persons and were paid from a business account with NatWest Bank.
- The Defendant disputes these claims on the basis that the payments said to have been made are not adequately evidenced. They do not appear on the relevant bank statements or the golf club accounts and the Claimant has not submitted receipted invoices for most of them. The Defendant relies in this regard on the remarks of Lord Goddard CJ in Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177, at 178 (cited with approval in Ashcroft v Curtin  1 WLR 1731, per Edmund Davies LJ at 1739):
"Plaintiffs must understand that, if they bring actions for damages it is for them to prove their damage; it is not enough to write down particulars, and, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you to give me these damages.' They have to prove it."
- Lord Goddard's stricture seems to me to have force in this case, for two reasons.
- First, I make due allowance for the fact that it was Mr Grant, and not the Claimant, who made the arrangements for engaging and paying staff, so she cannot be blamed for any lack of documentary evidence to support the payments made. But the Claimant's lack of knowledge of the relevant arrangements also means that I can place little weight on her affirmation of the accuracy of the figures claimed in the updated schedule of loss and damage. The Claimant could have, but has not, sought evidence from the individuals to whom it is said the money was paid. In the absence of supporting documents for the majority of the claims, there is therefore no reliable evidence to show exactly how much was actually paid.
- Second, the golf club had only recently opened when Mr Grant was diagnosed with mesothelioma. As the club attracted more members and guests, the need for staff would have been likely to increase even if Mr Grant had not fallen ill. Moreover, even after his diagnosis, there were periods when Mr Grant put in very long hours working at the golf club. These features make it important to understand exactly what services are being claimed for and at what times, so as to assess whether they were, on the one hand, services genuinely required to replace those that Mr Grant would otherwise have provided or, on the other, additional services that would have been required in any event. The absence of proper supporting documents makes this assessment very difficult.
- Nonetheless, I accept the Claimant's evidence that Mr Taylor and Ms Pothecary were in fact engaged. Some of the work they did must have been work that Mr Grant would otherwise have done, for example in the periods when he was receiving chemotherapy and in the latter stages of his illness. As in Bonham-Carter v Hyde Park Hotel and Ashcroft v Curtin, it is appropriate to make an estimate, erring on the side of caution given the unsatisfactory nature of the evidence. On that basis, I award £5,000 in respect of the work done by Mr Taylor and Ms Pothecary.
- There is some evidence of the payments made to Alison Enevoldsen in the form of invoices. The difficulty with this element of the claim, however, is that Ms Enevoldsen is said to have been engaged to do work in the kitchen and bar that would have been done by the Claimant if she had not had to care for Mr Grant. But I have already made an award of compensation representing the economic value of the care and assistance provided by the Claimant to Mr Grant. Mr Grant's estate is not entitled to be compensated twice for this.
- The total award under this head will therefore be £5,000.
- I encouraged the parties to do their best to narrow the disputes under this head. They were successful in certain respects. Some of the items claimed were agreed by the Defendant; others were withdrawn by the Claimant. A schedule was produced summarising the extent of agreement. I shall deal briefly with the items that remain in dispute.
- I do not allow the claim for a new television for Mr Grant's downstairs bedroom. There was no explanation why use could not be made of the existing television. I also do not allow the claim for vitamin tablets. There is nothing to show that these were prescribed or required as a result of Mr Grant's illness.
- However, I do allow the claim for the cost of a new 4x4 car (£6,580, after accounting for the money received when it was sold after Mr Grant's death). It was bought in April 2014, before Mr Grant needed either a wheelchair or oxygen cylinders, but I accept the Claimant's evidence that it was bought because she and Mr Grant anticipated an imminent need for a vehicle that could easily accommodate a wheelchair and oxygen cylinders and would be more easily accessible for Mr Grant as his disease progressed.
- The claim under this head was made up of probate expenses, solicitors' fees, court and commissioners' fees and death certificate fees (£3,344); the funeral itself (£5,459,08); flowers (£363); headstone (£4,867) and the funeral reception (£1,875). The first of these (probate etc.) is not now pursued; the second and third (funeral, flowers) are agreed. The fourth and fifth (headstone, reception) remain in dispute.
- The decision of the Court of Appeal in Gammell v Wilson  AC 27, at 43B-H (Megaw LJ), 44F (Brandon LJ) and 55B (Sir David Cairns), is authority for the proposition that the cost of a headstone – though not a memorial – is in principle allowed as part of "funeral expenses" under the 1934 Act. However, the sum claimed appears to me to be too high and not reasonable in all the circumstances. I shall allow £1,200.
- At first instance in Gammell v Wilson, the deputy judge (Benet Hytner QC) decided that the costs of a reception were in principle irrecoverable. In Knauer, at , Bean J noted that Mr Hytner's decision had been regarded as good law ever since and applied it. Mr Hytner's decision was followed again by Garnham J in Mosson, at . I must follow these decisions unless convinced that they are wrong: see Huddersfield Police Authority v Watson  KB 842, per Lord Goddard CJ at 848. I am not convinced that they are wrong. 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).
The 1976 Act claim
The law relating to dependency claims
- Section 3(1) of the 1976 Act empowers the court to award "such damages, other than damages for bereavement… as are proportioned to the injury resulting from the death to the dependants respectively". Section 4 provides that, "[i]n assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded".
- Mr Limb relied on three authorities. The decision of the Court of Appeal in Wood v Bentall Simplex Ltd  PIQR P332 addresses the situation where the income on which the claimant is dependant is derived from assets that she stands to inherit. As Staughton LJ put it: "can the dependants inherit the goose and still claim they have been deprived of eggs?" (P348). The answer was no, because "before one considers deductions under section 4, one first has to determine what loss the dependants have suffered; and if they have inherited the source of the income on which they were dependant, they have not lost it" (P349). Where the income is in part derived from labour and in part from capital inherited by the dependant, it is necessary to separate the former (which is recoverable as a loss arising from the death) from the latter (which is not) (ibid.).
- Wood was applied in Cape Distribution Ltd v O'Loughlin  PIQR Q8. There, the Court of Appeal allowed a claim for services dependency by the dependants of a man who derived his income from a property portfolio. The dependants inherited the portfolio, but the judge found that they had nonetheless been deprived of the services of a property developer of considerable flair and energy. He accepted that the proper way to quantify this loss was to ask how much it would cost to replace his skills with those of another person: see the extract at . Latham LJ (with whom Judge and Schiemann LJJ agreed) noted at  that the authorities laid down no prescriptive method by which damage was to be calculated. At  he described the quantification of loss as "essentially a jury exercise", held that there was nothing wrong with the judge's approach and dismissed the appeal.
- In Welsh Ambulance Service v Williams  EWCA Civ 81, the Court of Appeal upheld an award in favour of the family of a businessman who had, with some assistance from his family, run a builders' merchant and property business. It was irrelevant that the dependants had made a success of the business, because the value of the dependency was fixed at the moment of death; and the only post-death events affecting its value were those which affected the continuance of the dependency (such as the death of the dependant before trial) and the rise (or fall) in earnings to reflect the effects of inflation: see per Smith LJ (with whom Lloyd and Thomas LJJ agreed) at . Wood and O'Loughlin were applied at .
Past income dependency
- In her updated schedule of loss and damage, the Claimant claimed £13,067 for the income and financial support lost as a result of Mr Grant's death. This was calculated as 66.67% of the couple's joint income less the Claimant's income. The Defendant's calculation is only slightly different (£12,814, allowing for the uprating of the Claimant's pension) and the Claimant now accepts it. The Defendant's primary position, however, is that the Claimant should receive nothing under this head because, on the basis of Mr Grant's tax returns and accounts, his income was dwarfed by the losses he was making in running the golf club.
- Approaching the matter from first principles, the Defendant's primary contention is difficult to accept. The Defendant concedes in his counter-schedule of special damage that the joint income on death was £10,629.32, that the appropriate dependency ratio is two thirds (giving an annual dependency of £7,086.57) and that the Claimant's current income is £1,792.44. On the face of it, Mr Grant's death gives rise to a loss to her of £5,294.13 per annum. The larger part of this loss reflects the state pension that Mr Grant would have continued to receive (and from which the Claimant would have continued to benefit) had he not died. It is nothing to the point that, at the time of death, the losses incurred in running the golf club were considerably greater than the couple's joint income: if the Claimant had not chosen to sell the golf club, she might still be incurring them, but without the additional income derived largely from Mr Grant's pension. The key question is whether Mr Grant's death made the Claimant worse off in terms of income. On the agreed facts, the answer is yes.
- Nothing in the cases referred to at - above affects this analysis. The Claimant has lost the benefit of income that her husband would have continued to receive had he not died. She is entitled to be compensated for that lost income. Adopting the figure agreed between the parties (subject to the dispute of principle), the appropriate award is £12,814.
Past services dependency: domestic services
- The claim under this head is split into two parts. The first reflects the loss of Mr Grant's services up to January 2016, when the Claimant sold the matrimonial home and golf course. The second reflects the loss of those services from January 2016 to 9 September 2016, when the Claimant moved to her new, more modest home. Much of the original claim was disputed on the basis that there were no receipts to prove the amounts paid for replacement work. After some discussion between the parties, the Claimant refined and reduced the claim to include £5,400 for gardening, £720 for window cleaning, £300 for car washing, £1,050 for decorating and £500 for the cost of levelling the drive.
- Not all of these claims are backed by receipts, but there are quotations for all of them apart from the claim for levelling the drive. In each case, the Claimant has given evidence that these sums were spent. As I have said, I have found the Claimant to be a truthful witness and I am prepared to accept her evidence on this point. The sum of £300 per month for gardening at the matrimonial home is high, but the grounds were substantial and I see no reason to doubt the authenticity of the letter of 27 June 2013 from Mr John Taylor, the gardener whom Mr Grant had employed after his diagnosis, stating that he was receiving a monthly retainer of £300.
- The Defendant's principal challenge to the claim as now maintained is that it is just not plausible that Mr Grant, a man of 70 who it is said worked up to 75 hours per week, would have had the time to perform these tasks as well. But all the evidence points to Mr Grant being a man of exceptional energy and drive, who did in fact do a range of tasks around the house whilst also working very long hours. I find that he would have done as much as he could of the work for which compensation is now claimed. But, given his age and the fact that, had he not died, he would also have had both to run the golf course and club house and to manage the development of the 20-acre site, I accept Mr Limb's submission that he could not realistically have done all the tasks for which compensation is now claimed. There is no precise way of assessing the true value of the domestic services he would have provided had he survived. In all the circumstances, I assess it at £4,500.
Past services dependency: business services
- This head of claim relates to sums said to have been spent on golf club staff brought in to undertake work that would have been done by Mr Grant had he lived. It comprises a claim for the services of John Taylor (£6,720) and Alison Enevoldsen (£8,064.25).
- The points made about the lack of supporting documents at paragraphs 43-46 above apply with equal force to the claims made under this head for the services of Mr Taylor. Nonetheless, I have already accepted that he was in fact engaged and some at least of the services he provided must have been ones that Mr Grant would otherwise have provided himself. Applying the caution required in the light of the absence of docuemtnary evidence, I estimate the value of that work, in the period between Mr Grant's death and the sale of the golf club, at £2,000.
- In the case of the payments made to Alison Enevoldsen, there are, as I have said, invoices. But, as I have also said, Ms Envoldsen's services were required to replace those of the Claimant, not Mr Grant, so the cost of these services is not compensable as part of a claim of dependency on the services of Mr Grant. I have no doubt that the Claimant was profoundly affected by the death of her husband, but neither her witness statement nor her oral evidence establishes that the need to continue to engage Ms Enevoldsen in the period after Mr Grant's death was causally conntected to his illness or death. Accordingly, I will not allow the claim for the cost of Ms Enevoldsen's services.
- The total award under this head will therefore be £2,000.
Future income dependency
- For the reasons set out at paragraph 61 above, I reject the Defendant's argument that, because the golf club was making a loss, the Claimant has no claim for dependency in respect of Mr Grant's pension income. The annual dependency on pension income is £5,294. The multiplier of 10.75 is now agreed, so the award in respect of Mr Grant's pension income is £56,910.
Income from the development of Highworth Business Park
- The part of the claim that attracts the greatest value is the claim for future dependency in respect of the development of the 20-acre Highworth site. Mr Grant's plan was to develop this site into Highworth Business Park, from which he hoped to derive a substantial profit. The Claimant's case relies on three propositions, each of which is disputed by the Defendant. The disputes can be summarised as follows:
i) The Claimant, while acknowledging that Mr Grant would have had to engage the services of various professionals (such as planning consultants, architects, highway and structural engineers, marketing agents and solicitors), says that Mr Grant could have managed and promoted the development himself. The Defendant says that he would on any view have required the services of a seasoned property developer in addition to the other professionals mentioned. The Defendant also says that Mr Grant neither had the capital necessary to complete the development, nor the ability to raise it.
ii) The Claimant says that the right way to value the contribution that Mr Grant would have made is by reference to the 50% of profit to which Mr Muir is now entitled. That is a true reflection of the cost of replacing Mr Grant as developer. The Defendant says that this grossly overvalues the work that Mr Grant would have been able to do.
iii) The Claimant, relying on Mr Barefoot's report and oral evidence, says that development is likely to yield a gross profit of £4,803,758 over 11 years (giving an adjusted profit of £2,748,593). The Defendant, relying on Mr Lockhart's report and oral evidence, says that it is likely to yield a gross profit of £4,745,814 over 21 years (giving an adjusted profit of £2,055,168).
- It will be necessary to consider these three elements of the claim in turn. Before doing so, I must deal with some preliminary points. The first is a submission made by Mr Limb that the claim in respect of development profits offends the principle in Wood v Bentall Simplex that there can be no dependency claim for profits derived from assets that the dependant has inherited from the deceased. In my judgment, there is no difficulty in principle with the claim advanced here. The claimant is not seeking compensation for profits that she will earn in any event. What she is seeking is compensation for the value of the work that Mr Grant would have done if he had lived. Where, as in Cape Distribution Ltd v O'Loughlin, that work is the management or development of property, the most obvious way of assessing its value is by reference to the cost of replacing it. Whether the 50% profit-sharing arrangement entered into with Mr Muir represents a fair reflection of the cost of replacing the work Mr Grant would have done as a developer is a question of fact. If so, there is no legal difficulty with a claim to recover that cost.
- The next preliminary point arises because the arrangement with Mr Muir was entered into before, rather than after, Mr Grant's death. Section 3(1) of the 1976 Act empowers the court to award compensation for "the injury resulting from the death". On one view, it might be said that any "injury" to the Claimant had already been suffered by the time of death (since the 50% profit-sharing arrangement was already in place by that time) and so could not have resulted from it. But Mr Limb did not suggest that the claim should fail for this reason. It would not be reasonable to ascribe to Parliament the intention that claims under the 1976 Act should be precluded if the deceased, knowing he has a terminal condition and in the expectation of his imminent death, makes arrangements to replace his services. On the evidence, that is what happened here. As I have said, it is a separate question whether those arrangements reflect the true value of the services he would have provided.
- The third point relates to the burden of proof on this question. In closing, Mr Steinberg suggested that, if the Defendant was asserting that the 50% profit-sharing arrangement was unreasonable, he was in effect saying that there had been a failure to mitigate loss; and it was for the Defendant to prove this. I do not accept that this is the correct analysis. It is for the Claimant to show that she has suffered a loss as a result of Mr Grant's death and to establish its extent. This goes for each of the heads of loss claimed. Given that this is the Claimant's claim (not Mr Grant's), and the value of the dependency is essentially fixed at the moment of death (see Welsh Ambulance Service v Williams), it is difficult to see how any question of failure to mitigate loss could arise. In any event, as will become clear, I have reached clear conclusions on this aspect of the claim, which are not dependent on where the burden of proof lies.
- I turn to the question of Mr Grant's capability to manage and promote the development himself. I have already commented on Mr Grant's energy, drive and propensity for hard work. Some of his previous business activities could be described as involving property development. As I have said, Mr Lockhart thought his decision to trap the 20 acre site between the golf course and the Blackworth Industrial Estate a shrewd one. Mr Muir gave evidence that Mr Grant was a very good negotiator. His skills as a negotiator and his capacity for hard work would undoubtedly have been assets. But the fact remains that, unlike Mr Muir (who had qualifications not only as a quantity surveyor but also as a project manager), he had no professional training and no experience of managing commercial development projects such as this. The scale of the project envisaged was completely different from anything he had done before. The total value of the project (over the whole timeline) was expected to be in the region of £30 million. As Mr Lockhart said, this was on any view a substantial project.
- I have no doubt that Mr Muir, a long-standing associate and friend of Mr Grant, was telling the truth when he said that he believed Mr Grant would have been able to manage the project himself. But on a project of this kind, involving a large number of separate negotiations and transactions with commercially aware individuals and entities, it was important that those managing and promoting the project should be not just capable but demonstrably capable, so as to inspire confidence in potential counterparties. In this regard, Mr Muir's oral evidence included a telling vignette. When, after he became involved with HBP, he first met Aldi's representatives, he was asked to explain his previous experience in commercial property development. He was able to refer to a number of successful, large-scale projects with which he had been associated recently. Mr Muir formed the impression that his involvement gave the project credibility. Having heard evidence about Mr Muir's background, I think his impression is likely to be correct. I do not think Aldi would have been similarly reassured if Mr Grant had been the only person responsible for managing and promoting the development. Other individuals and entities interested in becoming involved in a development of this kind would be likely, like Aldi, to treat the experience of those managing and promoting the development as a key determinant of their involvement. The need for an experienced professional to assist in managing and promoting the project is also borne out by §9.2 of Mr Lockhart's report. (Mr Barefoot was not instructed to cover this point in his report.)
- Mr Grant, had he lived, would certainly have wished to be closely involved in the management and promotion of the development for as long as possible. But – even with the assistance of planning consultants, architects, engineers, marketing agents, solicitors and others – it would soon have become clear to him that, to succeed, he would in addition need the assistance of a seasoned commercial property developer. That is not to say that Mr Grant would have made no contribution at all. Even if he engaged a property developer to assist with and advise on the negotiations and transactions, he would have been well placed, notwithstanding his age, to take the important decisions (with appropriate advice) and also to undertake day to day tasks, such as managing building work. Because of his death, these decisions and tasks will have to be made and done by someone else.
- Mr Limb argued that, even if Mr Grant had the skills necessary to perform the role of developer (or some parts of that role), he did not have the capital necessary to complete the development, nor the ability to raise it. I do not agree. Discussions were on foot with Handelsbanken, which has branches in the area, in relation to the transaction with Aldi. Mr Lockhart's experience of dealing with a particular branch of that bank does not provide a safe basis for concluding that funding would be unavailable. Mr Barefoot's evidence, based on his own experience, was that banks are in principle willing to provide innovative solutions to provide financing for projects such as this. If collateral were required, Mr Grant had both the golf club and other rental properties, which could have been used for that purpose. If, as both Mr Barefoot and Mr Lockhart agreed, it was reasonable to suppose that gross development profits in the region of £4.7 to 4.8 million could in due course be achieved, there was no reason to suppose that financing would pose an insuperable obstacle.
- How, then, is the contribution that Mr Grant would have made to the project to be valued? Initially, the Claimant relied upon the export report of Mr Edward Preece to value the cost of replacing Mr Grant's services at £2,000 per month plus VAT and a further performance payment following a completion of each building sale or lease based on 1.25% of the sale value and 17.5% of one year's rental. In the original schedule of loss, attached to Particulars of Claim endorsed with a statement of truth, the Claimant put this forward as a valuation of Mr Grant's contribution to the property development business. Mr Grant wrote to Mr Muir on 12 December 2013 purporting to record an agreement between the two that Mr Muir would take over the day to day role as developer on the terms suggested by Mr Preece. Under cross-examination, Mr Muir said that that letter had been written after consultation with lawyers to reflect the sums for which it was believed a claim could be made; it did not record the true agreement between Mr Grant and Mr Muir, which was that Mr Muir would be entitled to 50% of the development profits, as reflected in HBP's articles of association and its option agreement with Mr Grant.
- Mr Limb submitted that Mr Muir's oral evidence demonstrates that he and Mr Grant were party to the creation of a document that they knew did not reflect their true agreement, intending that it should be used to bolster the Claimant's case in these proceedings. This, Mr Limb submitted, should affect the weight to be given to Mr Muir's evidence and the plausibility of the case now being advanced by the Claimant before me. Mr Grant should not have written the letter of 12 December 2013. But it was certainly not a fraudulent attempt to inflate the value of this claim on the part of either Mr Grant or Mr Muir. On the contrary, Mr Muir, who struck me as an honest and impressive witness, gave evidence that the sum agreed in that letter significantly undervalued his own services as a property developer. The reason for the figure of £2,000 per month plus performance payment was that that was, at the time, all it was believed could be claimed. Mr Muir said that, if this were a commercial arrangement, he would expect a share of the development profits for managing and promoting the development. Because Mr Grant was his friend, he left it to Mr Grant to suggest the percentage. Mr Grant suggested 50%. When asked if he would have accepted 25%, Mr Muir answered that he probably would have done so, because of his friendship with Mr Grant.
- Mr Limb submitted that, if Mr Muir would probably have accepted a profit share of 25%, the value of the services he was providing cannot on any view have been higher than that. I do not think this necessarily follows. The fact that Mr Muir might have accepted a 25% profit share if that had been offered by his dying friend is not a reliable indicator of the true commercial value of the services he agreed to provide. By the same token, however, nor is the fact that Mr Grant was prepared to offer his friend a 50% profit share. As Mr Muir said, there was no negotiation over that figure; it was simply offered by Mr Grant. The arrangement was not a commercial one on either side. I have no doubt, however, that it was entered into in good faith and that Mr Muir intends to honour it in full – even though the mechanism provided for in the option agreement has not, so far, been followed to the letter.
- The Claimant's case on this aspect of the claim was heavily dependent on the evidence of Mr Muir about what he thought was a fair price for his services. I accept Mr Muir's evidence that he would not have taken on the role of project manager on the terms set out in the 12 December 2013 letter or anything like them. Had he been negotiating the terms on an arm's length basis, he would – I accept – have required a profit share, probably somewhere between 25% and 50%. But the issue I have to decide is not what Mr Muir's services are worth but how to value the contribution that Mr Grant would have made to the development had he lived, bearing in mind my finding that he would have required the services of a property developer to assist him.
- In my judgment, the safest way to value that contribution is to start with the expert report of Mr Preece, which was originally put forward by the Claimant as the basis for valuing this part of the income dependency claim. Mr Preece is a Member of the Royal Institution of Chartered Surveyors. He co-established and ran a commercial agency business in Swindon, which grew to have the largest share of involvement in commercial property transactions taking place each year in the town and outlying areas. In 2004, he set up a consultancy business which, among other things, supports companies in managing and developing their property assets. The instructions to Mr Preece (set out in a letter dated 30 October 2013 from the solicitors acting for Mr Grant) were to "ascertain what it would cost to instruct a competent person to take on all the work that is going to be required to obtain planning permission and have the properties built and sold". The instructions accepted that "there might be some tasks which Mr Grant would not have been able to do such as designing the buildings for which he would have needed an architect in any event" but noted that Mr Grant had said that "apart from anything for which an expert would be required, he would have undertaken all the work himself". As I have said, I believe that Mr Grant would soon have found that this overestimated his own capabilities. However, it is still instructive to see what Mr Preece said.
- Mr Preece's opinion was based on his own experience of how long a developer would need to spend on the project, and the appropriate daily rate, taking into account his own experience of the development process and the work he has undertaken and continues to undertake for clients providing similar services. Reference was made to Mr Preece's experience on two specific projects in Dorset and Somerset, which he was undertaking for a client who did not have the time to manage these projects. On that basis, appropriate terms for replacing all the work it was said Mr Grant would have done were those set out in Mr Grant's letter to Mr Muir of 12 December 2013. In my judgment, Mr Preece's expert report (though no longer relied upon by the Claimant) is powerful evidence from an experienced individual, familiar with the market for property development consultancy services in the Swindon area, that those terms would have been sufficient to replace the work that Mr Grant intended to do on the development.
- Some discount must then be made to reflect my finding that Mr Grant would in any event have had to engage the services of a property development consultant for assistance and advice in relation to some tasks. It is difficult to assess with accuracy how much work would have been done by Mr Grant and how much by the consultant. I bear in mind that Mr Grant may well have required more help at the start of the project (as he learned how to manage and promote a large scale commercial development), but it is also relevant that Mr Grant was 70 years old when he died and it is likely that his capacity to undertake work on the development would decline as he approached 80. Bearing this in mind, I assess the value of the contribution he would have made to the development at 50% of the cost of employing a consultant on the terms set out set out in Mr Preece's report.
- I am conscious that the effect of my findings is that the Claimant will receive much less than the 50% of projected profits that Mr Grant gave up when he entered into the agreement with Mr Muir. That is because, on the evidence, the cost of securing the services of Mr Muir, a qualified, experienced and highly competent property developer, was higher than the pecuniary value to be ascribed to the contribution that Mr Grant would himself have been able to bring to the development. It must, however, be borne in mind that, the Claimant stands to receive her 50% of the development profits in addition to any award I make.
- The final issue in dispute, so far as relevant given my findings, is the timescale over which the development is likely to yield profits. I prefer Mr Barefoot's revised estimate of 11 years over Mr Lockhart's revised estimate of 21.
- First, Mr Barefoot's estimate was based on a comparison of what had been possible in two other projects of which he had direct experience – one at Interface Business Park in Royal Wooton Bassett, the second at Solstice Park in Amesbury. As Mr Barefoot said, these were appropriate comparators for Highworth because the development was managed flexibly, as Highworth would be, through whatever mode would be most likely to yield profit in the market conditions. Another development at Shrivenham that had taken longer to complete was a less useful comparator because in that case the developers, who had several such sites, had stuck rigidly to a single model (which involved building, then securing income from letting and ground rents).
- Second, Mr Lockhart accepted in cross-examination that his own timeline was based on realising profits through pre-sales and pre-lets; and that a shorter timeline would be applicable to land sales. His concern about land sales was that they were not necessarily profitable. This evidence did not seem to me to fit with what is known about the Aldi transaction. That is structured as a land sale, yet it is projected to yield a significant profit for HBP, even after the Claimant has received from HBP the amount due to her under the option agreement for the land. Although it is only a single transaction, the Aldi deal appears to bear out Mr Barefoot's view that land sales can yield significant value and profit to HBP. Moreover, Mr Lockhart fairly accepted in cross-examination that, if the Aldi deal completes (as both experts expect), it will act as a "pump primer". In other words, the involvement of a major retailer, and the fact that services have been installed, will attract others to the site.
- Third, a large part of Mr Lockhart's objection to Mr Barefoot's timeline depended on his insistence on making specific allowance in his model for a recession that he predicted would occur in 2024-25. Any attempt to predict national economic circumstances that far ahead is, in my view, inevitably speculative. Mr Barefoot's method did not ignore effects caused by the economic cycle but realistically accepted the difficulty of predicting their timing and correctly pointed out the difficulty of knowing to what extent any national recession would be reflected in the Swindon market, which had historically shown some resilience during downturns. Mr Barefoot's model accounted appropriately for economic uncertainty by taking an average of various scenarios (some more optimistic than others).
- Mr Steinberg suggests that I should apply a dependency ratio of 85%. He relies on the decision of Simon J in Farmer v Rolls Royce Industrial Power (India) Ltd (26 February 2003), where that ratio was applied on what he says are "very similar facts". In my judgment, that case is of very little assistance here. The dependency ratio there was the subject of a "detailed analysis" prepared by a forensic accountant: see at . Simon J said that it was appropriate in the case of a "high income family": see at . In this case, there is no expert evidence on the issue; nor do the underlying documents permit any detailed analysis of how much was spent by Mr Grant; and whatever the prospects for the development, the Grants were not a "high income family" in the sense used by Simon J. In those circumstances, there is no justification for applying anything other than the conventional ratio of 66.67%.
- Because I have concluded that the value of Mr Grant's contribution to the development should be assessed by reference to a method not advanced at trial by either the Claimant or the Defendant (Mr Preece's method), neither party has had the opportunity to make submissions on the final figure for this head of claim. I indicated at trial that I would be likely to invite submissions on the proper figure to reflect my findings of fact and I shall do so when handing down this judgment.
Future services dependency
- I have already assessed the past services dependency at £4,500. Given his age, it is likely that the value of the services he would have been able to provide would diminish year-on-year, particularly given the assumption that he would also have been working on the development. I would allow a figure of £2,000 pa and apply a multiplier of 7.5 (taking into account the discount for early payment), giving an award of £15,000.
Loss of intangible benefits
- The Claimant claims £5,000 under this head. In the schedule of loss, it is said that she has "lost not just someone who provided income, services and care; but the convenience, comfort and security of having someone who gave this help out of love and affection. She has also lost the Deceased's emotional support, kindness and companionship." The Claimant notes that awards of this kind were made in a number of recent cases, including Beesley. The Defendant submits that this is not a recoverable head of loss, relying on the recent decision of Garnham J in Mosson, at -, declining to follow earlier first instance authority. Because there is an apparent conflict in the first instance case law, it is necessary for me to consider the authorities.
- The authorities under the Fatal Accidents Act 1846 (known as Lord Campbell's Act) established from an early stage that damages under that Act were available for pecuniary loss only. This meant that there was no right to recover what is known in Scots law as solatium, ie "damages given for injured feelings or on the ground of sentiment": Taff Vale Railway Co. v Jenkins  AC 1, per Lord Haldane LC at 4. Nothing in later amending legislation up to and including the Fatal Accidents Act 1976 altered this. It followed that a husband could not recover for the loss of companionship of his wife: Pevec v Brown (1964) 108 SJ 219, per Megaw J, who thought that, by the same token, a child should not receive damages to compensate him for the fact that he would now receive less care than he would have done had his mother survived.
- The latter conclusion was doubted by the Court of Appeal in Hay v Hughes  QB 790. Lord Edmund-Davies reaffirmed at 802 that damages could be awarded under the 1846 Act only in respect of pecuniary loss, but went on to note that it might have to be considered whether the following statement from MacGregor on Damages (13th ed., 1972), §1232, was correct:
"…it may be argued that the benefit of a mother's personal attention to a child's upbringing, moral, education and psychology, which the services of a housekeeper, nurse of governess could never provide, has in the long run a financial value for the child, difficult as it is to assess."
- It was not long before Lord Edmund-Davies's encouragement was taken up. In Regan v Williamson  1 WLR 305, Watkins J increased the dependency figure to reflect the fact that "a wife and mother does not work to set hours and, still less, to rule". This enabled compensation to be given for "all those hours in the evening and during the weekends when no substitute service is available" (see at 309).
- In Mehmet v Perry  2 All ER 529, Mr Brian Neill QC (sitting as a Deputy High Court Judge) held that a husband and children were entitled to recover relatively small sums for the loss of personal care of their wife and mother, over and above the loss of housekeeping services, which were the subject of a separate award. This was so even though the father had given up his job to look after the children.
- The availability for a limited class of relatives of damages for bereavement in a specified amount was introduced in 1982 by the insertion of s. 1A into the 1976 Act. The limitations placed on this head of loss (both as to the class of entitled claimants and as to quantum) indicate Parliament's intention carefully to circumscribe any exception from the principle that damages were available for pecuniary loss only.
- In Beesley, Hamblen J set out some of the previous case law and concluded as follows at :
"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."
At , he made clear that the reason it was appropriate to make an award on the facts of the case was that:
"…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 find and choose commercial providers, and to have to work around the hours that suit them for the work in question."
He awarded £2,000.
- In Devoy v William Doxford & Sons Ltd  EWHC 1598 (QB), another mesothelioma case, HHJ Reddihough (sitting as a Judge of the High Court), made an award of £2,000 for "loss of love and affection". The claimant was the wife of the deceased and suffered from Parkinson's disease, osteoporosis and a painful spine condition. The judge considered the claim to be similar to that in Regan. An award was appropriate "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": see at .
- In Fleet v Fleet  EWHC 3166 (QB), Mackay J made an award of £2,500 for "special care". At  he said:
"This is sometimes called the Regan v Williamson head of damage. There is no doubt that it is increasingly awarded in the form of modest sums in these cases. Hamblen J gave £2,000 in the Beesley case to which I have referred. Although in its origin it was an attempt by the courts 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 feature 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 no doubt he would have been happy to provide and provided extremely well."
- In Mosson, Garnham J refused to make any award to reflect the "additional value and convenience in having someone who is willing and able to provide these services out of love and affection rather than bringing in outside help and contractors". It may be noted that this formulation is very similar to that found in the Claimant's schedule of loss here. Garnham J gave two reasons for declining to make any award. First, he had already made an award for the services the deceased would have provided and valued it by reference to the cost of replacing those services commercially. Although there were some disadvantages in having work carried out commercially, there were also some advantages (eg that it might be of higher quality and that it would not detract from the other activities the family may wish to undertake). The award already made for services dependency recognised the advantages and disadvantages of having these services provided by commercial contractors rather than by the deceased. Secondly, Garnham J held that a claim for compensation for the inconvenience of having to pay someone to do what the deceased would have done voluntarily is a claim for non-financial loss, which, apart from the award for bereavement, is not compensable under the 1976 Act.
- In Wolstenholme v Leach's of Shudehill  EWHC 588 (QB), HHJ McKenna (sitting as a Judge of the High Court) held at  that awards of the kind made in Beesley were usual "to reflect the advantages in having jobs around the house done by a husband or partner in his or her own time and convenience rather than having to go out and find and choose commercial providers and to have to work around their convenience and/or availability". The decision in Mosson was, he held, "contrary to the weight of authority".
- The following principles can be derived from the authorities.
- First, aside from the award for bereavement, there can be no claim under the 1976 Act for non-pecuniary loss. This means that there is no right to compensation for loss of "emotional support, kindness and companionship" (a formulation found in the Claimant's schedule of loss). These are the losses (sometimes described as "loss of society") for which, in Scotland, solatium would be awarded: see eg MacGregor on Damages, 19th ed., §39-020. But in England & Wales no such award is available. This was authoritatively stated by the House of Lords in the Taff Vale case and reaffirmed by the Court of Appeal in Hay v Hughes. The limited right to recover for bereavement, introduced in 1982, casts no doubt on – and indeed confirms – the non-availability of separate compensation under this head of loss. Insofar as the award in Devoy was intended to compensate for the loss of the claimant's "love and affection", it was contrary to this principle. (As explained below, however, the award in that case may have been justified on the facts of that case, but on a different basis.)
- Second, the courts have sometimes recognised that a dependant may suffer a pecuniary loss as a result of the death of a relative that is not adequately compensated by an award for services dependency. A pecuniary loss, for these purposes, means a loss that is conceptually capable of being valued in money or money's worth. The award for services dependency is calculated by reference to the cost of replacing those services commercially; and this cost may be an imperfect proxy for the true value of the deceased's services lost. Thus, in Regan, the dependency figure was increased to reflect the extra hours the mother spent in the evenings and weekends when no substitute for her services was available. Similarly, in Fleet, the additional award reflected the value of the care the husband would have given to his older wife. Likewise, the award in Devoy was justifiable insofar as it was intended to compensate for the care that the husband would have provided to his disabled wife. In all these cases, the services could in principle be valued in monetary terms. Awards made on this basis do not offend the principle that, bereavement apart, compensation is available for pecuniary loss only. They are simply an attempt to capture more accurately the pecuniary value of the deceased's services in circumstances where the cost of replacement services does not capture the whole of the loss, because the services in question are, at least in part, not commercially available. Insofar as Garnham J held that the decisions in these cases lack a proper jurisprudential foundation because they offend the principle that damages are available for pecuniary loss only (see Mosson at  and ), he was in my view mistaken.
- Third, there is a separate reason why an award for services dependency, calculated by reference to the cost of replacement services, may be inadequate to value the loss of the deceased's services. A wife whose husband used to do all the minor repair work around the house now has to find and choose the painter, plumber, decorator et al. and make the arrangements for them to come and do what needs to be done. These are things she did not have to do before. The time spent by the claimant in doing them has a pecuniary value. That was the basis for the awards made by Hamblen J in Beesley and by HHJ McKenna in Wolstenholme. The difficulty of assessing that value precisely accounts for the modesty of the awards generally made under this head. It does not, however, transform the award from (permissible) compensation for pecuniary loss to a form of (impermissible) solatium. With respect to Garnham J, I do not see why the ordinary activities of family members other than the deceased would be less affected if DIY is done by outside contractors than if done by the deceased himself. Garnham J was no doubt correct to point out that work done by a commercial contractor might be of better quality than that done by the deceased, but that would not necessarily be so. In any event, a services dependency award is, or should be, valued by reference to the cost of replacing the lost services on a like-for-like basis. There is no reason to assume that such awards generally confer a pecuniary advantage on claimants such as to justify a refusal to compensate for losses – real, albeit difficult to assess – of the kind identified by Hamblen J in Beesley and HHJ McKenna in Wolstenholme.
- In the present case, the evidence establishes that Mr Grant did the decorating, gardening and a small amount of DIY around the house. He was plainly a capable man, given that he personally undertook much of work involved in constructing the golf course. While Mr Grant was alive, the Claimant had not only someone capable of doing this work, but also the convenience of not having to arrange for it to be done commercially. That convenience has a pecuniary value and, as in Beesley and Wolstemholme, the Claimant is entitled to a modest sum by way of compensation for its loss. I would award £2,500.
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