Supreme Court decision impacts Mesothelioma case law

A claim brought by the husband of former prison worker following his wife's death has resulted in a Supreme Court judgment that may have a significant impact on future mesothelioma compensation claims for widowed spouses.

The asbestos-related disease compensation case revolved around whether damages should have been calculated from the date of the worker's death, or from the trial date, and what losses those damages should include.

The first hearing

In the initial damages hearing in July 2014, the judge heard the case of a woman who had been exposed to asbestos during her 10-year employment as an administrator at HMP Guy's Marsh, Shaftesbury between 1997 and 2007.

When diagnosed with malignant mesothelioma in March 2009, the prison worker was given only six months to live. She passed away in hospital on 28 August 2009, aged 46, following a collapse at home that same day.

The Ministry of Justice (MoJ) - who have overall responsibility for most prisons - initially denied liability. After an exchange of witness statements, the MoJ admitted liability, although the MoJ contested how much the woman's widower (the claimant), should receive in damages.

The claimant made a claim for future loss of dependency under the Fatal Accidents Act 1976.

It was clear from the statements that the couple had what was described to the Court as an "old-fashioned relationship", whereby the wife had carried out all household tasks, probably spending at least 20 hours a week on them.

The dispute was over the number of years by which that figure was to be multiplied; being calculated either from the date of death or from the date of trial.

The trial judge, Judge Bean, held that he was bound to follow the approach adopted by the House of Lords in previous cases in 1979 and 1983, meaning he should calculate the multiplier from the date of death.

On that basis he specifically awarded the husband £88,160 for "past services dependency" and £329,241 for "future services dependency" on the services of his late wife.

A further £225,571 was added to the award to take into account all heads of compensation - including the loss of the woman's income - making the total award £642,972 (£647,840 with interest).

However the Judge stated that he would have preferred to calculate the multiplier from the date of trial, in line with the approach recommended by the Law Commission in their report Claims for Wrongful Death (1999).

He therefore granted a certificate under section 12 of the Administration of Justice Act 1969 to enable the claimant to appeal directly to the Supreme Court.

What was basis of the claimant's appeal?

When calculating damages for loss of dependency from the date of death, rather than the date of trial, a claimant suffers a discount for early receipt of the money - even though that money will not be received until after trial. This discount may result in under-compensation.

In this case, the Court had no hesitation in applying the 1966 Practice Statement and departing from precedent. It considered that, since those previous cases decided by the House of Lords, a material change in the relevant legal landscape had taken place, with calculations of damages for personal injury now being far more sophisticated.

The judgement read that "In the current legal climate, the application of the reasoning in the two House of Lords decisions is illogical and its application also results in unfair outcomes."

The claimant received a further £52,000 in damages

The future of Mesothelioma and other fatal injuries claims

The multiplier by which future losses are calculated in Fatal Accident Act 1976 claims will now be determined from date of trial, rather than date of death.

This outcome means that claimants may no longer have their claim discounted as though they had received early payment of damages. As occurred in the case discussed in this article, this development could represent £10,000s more compensation being awarded to widowed claimants.

Chris Salmon, Director

Chris Salmon, Director