Analysis: the Court’s evaluation of key heads of claim in an undefended living mesothelioma case

Fitzpatrick v Ministry of Defence & Home Office [2024] EWHC 3609 (KB)

This was an uncontested assessment of damages conducted by His Honour Judge Glen, sitting as a Deputy High Court Judge in November 2024, following judgement being entered in default against The Home Office, which (for reasons that the judge described as “extraordinary”) had never been involved in the proceedings in any way. The judge acknowledged in his judgement that this created some obvious difficulties in relation to the hearing, including recognising that all possible arguments on behalf of the absent defendant would not be argued and the Claimant’s evidence would be unchallenged, except where it was inconsistent with other evidence before the court.

In this context, the court’s approach to the assessment of damages in respect of certain heads of claim is worthy of analysis.

Pain, suffering and loss of amenity

In his ex-tempore judgement, the judge records that the claimant was born on 27 March 1955 (so that he was aged 69 years and 8 months at the date of the hearing). He had developed relevant symptoms consisting of acute abdominal pain in early 2020. Investigations had led to a diagnosis of peritoneal mesothelioma at the end of 2020. The claimant had subsequently undergone chemotherapy and then cytoreductive surgery that resulted in hospitalisation for 13 days had been carried out in January 2022. Following this surgery, which included the removal of the peritoneum and appendix, the claimant had recovered much of his previous function, although he was said to be not as fit as he was and in particular no longer able to engage in heavier DIY activities. He had also been left at significant risk of recurrence, with the expert evidence suggesting only a 43% probability of him living for 5 years post-surgery and with a further reducing life expectancy thereafter.

In terms of assessing general damages for PSLA, the judge said that he did not think anyone would dispute that the case fell within category 6C(a) of the Judicial College Guidelines, the current (17th) edition of which indicates a bracket of £77,680 to £139,680. He then went on to accept the claimant’s counsel’s submission that this bracket needed to be upgraded for inflation (so that the top of the range was probably about £145,000).

The judge went on to make reference to the relevant factors to be considered as set out in the Guidelines and concluded that there was no doubt that this case lay at the top end of the relevant bracket. There appeared to be recognition that the experience of being hospitalised during the Covid pandemic justified an increase in the amount awarded, although not taking the award above the top of the bracket. Taking all relevant matters into account and adjusting for inflation, the judge awarded £130,000.

Given that this was peritoneal mesothelioma with extensive surgery and an exceptionally long period of symptoms (approaching 5 years by the date of hearing), this can be argued as indicating the ceiling of what should currently be allowed in mesothelioma cases.

It is not apparent from the written judgement what regard (if any) the judge had to the fact that in this case, unusually, the deceased’s mesothelioma would not inevitably be fatal. Nevertheless, this highlights an apparent inconsistency in respect of general damages cases where there is reduced life expectancy. The relevant factors in respect of mesothelioma cases set out in the JC Guidelines includes “extent of life loss” and “concern for spouse and/or children following death” (both explicitly taken into account by HHJ Glen in this case). In Hicks v Chief Constable of South Yorkshire Police [1992], a claim arising from the Hillsborough disaster brought under the Law Reform Act 1934, the House of Lords refused to award damages in respect of two teenage girls who had both lost consciousness within a matter of seconds and died from traumatic asphyxia within five minutes. No other physical injuries were sustained before the fatal crushing injuries. It seems that “extent of life loss” played no part.

Furthermore, chapter 1 of the JC Guidelines specifically addresses injuries resulting in death. Section 1(A) of the 17th edition applies to “full awareness”, describing cases where there are “severe burns and lung damage followed by full awareness for a short period and then fluctuating levels of consciousness for between four and five weeks, coupled with intrusive treatment or significant orthopaedic/physical injuries followed by death within a couple of weeks up to three months”. The stated bracket is only £15,300 to £29,060.

Given that this bracket covers cases with symptoms experienced for up to three months (and which may be particularly agonising if for instance involving serious burns), the bottom of the bracket for mesothelioma of no less than £80,000 (adjusted for inflation) appears excessive in comparison, even taking into account the potential unconsciousness in respect of burns victims. By way of example, in Whitnell v Mepel Co Ltd [2018] the claimant was awarded £70,000 for PSLA (almost £99,000 now when adjusted for inflation) after his brother’s death from mesothelioma on 6 September 2017. Symptoms had first developed in May 2017, with a more rapid decline from July 2017. The rapidity was such that there was a biopsy but no other invasive treatment.

The level of the award in mesothelioma cases becomes seemingly even more disproportionate when it is taken into account that mesothelioma victims are usually at least 70 years of age, so the extent of life loss is inevitably much less than in other cases.

Care and assistance

The claimant was of course entitled to recover in respect of the gratuitous care provided to him by his wife: the award in this respect, being to reflect the ‘reasonable’ value of the gratuitous services rendered, was to be held on trust for her in line with the decision in Hunt v Severs [1994].

Time was allowed on the basis of the claimant’s own evidence (in the absence of a nursing care expert’s report). The rates applied to this time were the usual National Joint Council (NJC) spinal 2 rates, with the basic rate being applied except for the period immediately following the claimant’s discharge from hospital, when the aggregate rate was applied to compensate for the greater degree of ‘care’ required during this period.

This left the question of the appropriate deduction to reflect the care having been provided gratuitously and that no income tax or NI was payable. Although there have been past awards where no deduction has been made, the reduction has historically usually been between 20% and 33%, with 25% having become the convention. The judge accepted the claimant’s arguments against the conventional figure, substituting this for 20% to reflect the lower marginal tax rate applicable to the lower rates allowed.

There would seem to be merit in this respect. The latest published NJC spinal 2 basic rate was £12.26 per hour up to 31 March 2024, resulting in an annual full-time salary of £23,656. This results in net pay of £20,552, or £21,439 if the worker is aged over state pension age (so that NI contributions are no longer payable). As can be seen, these reductions are considerably below 20%, although expenses incurred in relation to work arguably also need to be taken into account.

Loss of services post-death

The claimant acknowledged that the court was ‘constrained’ by the decision in Phipps v Brooks Dry Cleaning Ltd [1996] from awarding damages in respect of post-death services in a living case. Recognising the ‘interest’ in achieving finality in litigation but ultimately concluding that this should give way to the “primary objective of achieving justice”, the judge agreed and adopted the approach applied in Andreou v S Booth Horrocks & Sons Ltd [2017] and adjourned this head of claim generally, along with the claim for future medical expenses.

In granting the adjournment pending Mr Andreou’s death, the judge said: “This is a proper claim that will be made in due course … It would not be right … not to be able to make a claim for something to which he is entitled simply by reason of it having been brought into these proceedings.”

Stepping back, one has to feel that this is an area where the absence of arguments on behalf of the defendant created difficulties as the judge alluded to. In particular, the fact of the claim having been dealt with during the claimant’s lifetime should of course exclude what is (unlike the claim for future medical expenses) essentially a claim for loss of services dependency under the Fatal Accidents Act 1976. The approach taken would seem to be contrary to the decision in Thompson v Arnold [2007],amongst other cases.

Furthermore, to suggest that this is in order to ‘achieve justice’ does seem to display significant disrespect of the Court of Appeal’s decision in Phipps. It is approaching 30 years since Phipps, plenty of time for Parliament to have changed the law if it felt it right to do so.

It also begs the question of how far this approach can be taken – might other heads of claim under the 1976 Act be allowed in living cases through adjournment, for instance the bereavement award and/or funeral expenses? And in such a case where there are no financial dependents, how likely might a Court be to grant a defendant’s application for a lost years’ claim to be adjourned to be dealt with post-death in the interests of ‘justice’, so as to effectively erase the claim?

Clyde & Co are specialists in dealing with Asbestos-related claims, and we closely monitor developments around this topic. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Simon Morrow or any of our Occupational Disease and Legacy Claims team.