Scarborough College Ltd v Winter [2021] 4 WLUK 352- The Show Cause Test under Scrutiny

This post was written by Helen Waller.

An independent boarding school recently appealed a judgment on liability made against it under the ‘show cause’ procedure set out in CPR PD 3D. The claim was one made by a former pupil who had contracted mesothelioma as a consequence of his exposure to asbestos at the school. The mesothelioma led to the former pupil’s death in December 2020, a month after the show cause hearing. His widow continued the claim.

CPR PD 3D, paragraph 6.1 sets out the defendant’s obligations in the show cause procedure. A defendant is to “identify the evidence and legal arguments that give the defendant a real prospect of success on any or all issues of liability.” Following Silcock v H M Revenue and Customs [2009] EWHC 3025 (QB), that obligation only kicks in once the claimant has adduced credible evidence in support of his case.

The Background

The Claimant/Respondent had been a boarder at the school from 1969 to 1973, housed in a Victorian building. He said that 6 days a week he and other pupils dried their sports kit on asbestos-lagged pipes in the basement boiler room. His case was that the lagging was damaged and frayed. In respect of establishing the Defendant/Appellant’s knowledge of the dangers of asbestos and breach of duty, the Claimant/Respondent relied on the following:

  1. A Department of Education memo, circulated to all schools in 1967, which stated that the inhalation of asbestos dust was known to cause asbestosis, lung cancer and mesothelioma.
  2. The now well-known 1965 article in The Sunday Times which discussed the danger of exposure to asbestos.
  3. A letter from a health and safety practitioner as a preliminary expert report, which stated that the pipes were likely to have contained asbestos.

The Defendant/Appellant submitted a preliminary report from an occupational hygienist.

The Master held that the school knew or ought to have known of the condition of the lagging, the risk of exposure to asbestos, and that the pupils were using the room. He held that the memo and the article meant that it would be fanciful for the school to maintain that it did not have concerns about exposure to asbestos, and that the school should have curtailed access to the boiler room in light of such concerns. Therefore, the Master concluded that the school had no realistic prospect of defending liability and that a breach of statutory duty was incontrovertible. Medical causation and assessment of damages remained to be dealt with at trial.

The Appeal

The appeal came before Cavanagh J. The school contended that the Master had applied too high a standard in deciding whether or not it had a “real prospect of success” in defending the case on liability. The school accepted that the lagging had likely contained asbestos, but argued that it had neither actual nor constructive knowledge as to the risks of asbestos at the time such as would place it in breach. It argued that asbestos had been used up to 1975, that contemporary publications had suggested that it had posed no health risk and that competing interpretations of what was known at the time should be a matter for trial.

The Judge dismissed the appeal. Drawing on Silcock, the Judge held that the test of whether the Defendant/Appellant’s case had some prospect of success that was not fanciful was a low bar. The procedure was inevitably rough and ready and often conducted without the benefit of full expert reports. It was held that the Department of Education memo should have put the school on notice of the risk. The Master had been entitled to conclude that it was not reasonably arguable that contemporaneous reports about the safety of asbestos present in buildings in an undisturbed state could have assuaged concerns. That conclusion was supported by The Sunday Times article from 1965. As a result, the Master had been right to find that the school ought to have taken reasonable steps to prevent exposure to the asbestos lagging and dust. Foreseeability was to be judged in the context of the state of knowledge at the time and the Master had been correct in his conclusion that the school would not be able to establish that harm had not been reasonably foreseeable. The school might not have known whether the dust swirling in the boiler room was chrysotile, but there had been a clearly foreseeable risk of injury. The school’s own expert did not exclude the possibility that the dust was chrysotile.

Comment

This is an important appellate judgment re-enforcing two key aspects of the show cause procedure.

Firstly, it is only a low bar that a defendant has to meet. However, the test is a clear one and the Masters are specialist asbestos judges. This case is a reminder that the Masters should approach these cases pragmatically and realistically. 

Secondly, the Masters regularly apply this test to incomplete expert evidence, but that is no bar to a finding of a defendant having no prospects of success. Defendants can often generate the semblance of a coherent argument, but once one takes a step back, it is clear that that argument is not one that stands reasonable prospects at trial. The procedure is necessarily rough and ready. It is designed to ensure, so far as possible, that dying victims are not deprived of the ability to live the short remainder of their lives with a modicum of financial security.

Balls v Reeve & Thurlow [2021] EWHC 751 (QB)

This blog post was written by Megan Griffiths. It concerns the High Court’s judgment in the asbestosis case of Balls v Reeve & Thurlow [2021] EWHC 751 (QB). The successful Claimant was represented by Max Archer.

The Claimant alleged negligent exposure to asbestos whilst working as a carpenter for the Defendant between 1979-1984. He was set to work smashing and asbestos roofing and removing and cutting asbestos panels. This period represented 16% of his total employment period with the Defendant, there being no insurance in place for the remainder of his employment period. He was diagnosed with asbestosis in 2017, although there were references to asbestos related disease and fibrosis in earlier records and a history of chest issues stretching back to the 1990s. The claim was issued in October 2019. The Defendant contested breach, causation and limitation.

In particular, the Defendant argued that the Claimant’s date of knowledge was in the 1990s or alternatively 2013 when a note accompanied a scan made reference to ‘previous asbestos exposure’. The Defendant challenged the Claimant’s account of exposure to asbestos. It was conceded that if the Court accepted the Claimant’s account then breach of duty would follow. The Defendant challenged causation, arguing that causation in-fact could not be proven without the evidence of an occupational hygienist to confirm exposure to asbestos above the levels described in the Helsinki Criteria.

The Court found for the Claimant on every point.

Limitation

Primary limitation turned on date of knowledge, either actual or constructive. This was contested on the basis that the Claimant’s evidence was that he was aware of respiratory problems since the 1990’s; records in 2013 referred to fibrosis and bilateral pleural calcification “in keeping with previous asbestos exposure”; the Claimant’s expert opined that the Claimant had had respiratory disability since at least 2016; and the IIDB assessment recorded a date of onset of 2015.

The Defendant submitted that the Claimant’s actual knowledge was when he suffered symptoms, given that he knew that had respiratory problems dating back many years he must have known that they were both significant and attributable to his exposure whilst working for the Defendant. Alternatively, it was submitted that the Claimant had constructive knowledge when he first experienced symptoms, the Claimant should have asked if that might have caused his respiratory problems.

The Claimant submitted that time started to run with the diagnosis in 2017 and that it was relevant that asbestosis was “gradual and insidious” in its onset. There were no references to ‘asbestosis’ prior to 2017, the references to fibrosis before this point were a hypotheses and ought not to be treated as a diagnosis given the potential differential diagnosis of idiopathic pulmonary fibrosis. On constructive knowledge the Claimant submitted it was hard to see how he could have done more, having sought medical attention when he experienced symptoms, no treating doctors diagnosed their cause until 2017. Therefore the Claimant submitted that constructive knowledge began with diagnosis also.

On section 33, the Defendant submitted there was no contribution to the delay by the defendants, no adequate explanation for the delay and an evitable compromise of the cogency of the Claimant’s recollection. The Claimant submitted that failure to exercise section 33 discretion would deny him his meritorious claim, causing significant prejudice. There was no forensic prejudice to the Defendant as there was no documentary evidence before the Court, the position was unlikely to have been different if the claim had been intimated in 2013.

The Court found that there was no actual knowledge until the date of diagnosis in 2017 and that the earlier references to respiratory difficulties did not preclude this as he “clearly considered they were not sufficiently serious to bring them to the attention [of] his GP” [43]. The Court also accepted the Claimant’s submission of the “insidiously progressive” nature of the illness which the Court found was promptly diagnosed once manifested. Without a diagnosis he could not be said to have actual knowledge.  The Court also found that constructive knowledge did not arise until the date of diagnosis [44], it was noteworthy that in spite of ongoing investigations into his chest issues no treating doctor made a diagnosis until 2017. Therefore, the claim was issued in time.

But for the findings on primary limitation the Court made clear that it would have exercised its section 33 discretion in the Claimant’s favour on the basis that it would be “unjust” to deprive the Claimant of a remedy and there was no serious prejudice to the Defendant caused by the delay [45].

Causation and the Helsinki Criteria

The Defendant conceded that if the Court found for the Claimant on limitation then breach of duty would follow. It disputed causation however, on the basis that there was no expert evidence from an occupational hygienist and so it would be “unsafe” for the Court to presume that the Helsinki Criteria were met to prove that the exposure caused the asbestosis [47]. The Defendant highlighted that Professor Maskell, consultant chest physician, said that whilst his view was that the Claimant’s exposure was likely to meet the criteria, it “obviously would be for an occupational hygienist to confirm” [49].

The Claimant submitted that the nature of the Claimant’s asbestos exposure was moderate to heavy, evidenced by the Claimant’s evidence of fact and Professor Maskell’s expert opinion. He submitted that the Helsinki Criteria required 25 f/ml years of asbestos or “one year of heavy exposure or five to ten years of moderate exposure” [50]. The evidence in this case amply satisfied the second alternative even without occupational hygienist evidence on f/ml years. It was submitted that there was no attempt to go behind the diagnosis, this was medical question and an alternate diagnosis (namely IPF) had never been suggested by the Defendant.

The Court found that the combined evidence of the Claimant and Professor Maskell was “sufficient to prove, on the balance of probabilities, that he had moderate to severe exposure to asbestos … consistent with the Helsinki Criteria” [53]. The Court was particularly persuaded by the Claimant’s evidence that he used to blow asbestos dust away after cutting into asbestos materials with a handsaw so that he could make the next cut [52]. Other relevant factors were that the Claimant had not been exposed to asbestos in any other employment and that the diagnosis of asbestosis was not disputed.  

Comment

This judgment is likely to be seen by claimant asbestos litigators as an extremely promising one on limitation. The meaning of date of knowledge in asbestosis cases, where the onset is so gradual, has not always been clear. It was a curious feature of this case that the Defendant sought to challenge causation in fact (therefore challenging the diagnosis of asbestosis) whilst simultaneously arguing that the Claimant ought to have brought his action earlier on the basis that he knew that he had asbestosis. The Court’s finding that time does not run until the date of diagnosis on these facts is a welcome one. The decision on section 33 is similarly reassuring.

The findings on causation without occupational hygiene evidence are also extremely valuable. In many asbestos exposure claims occupational hygiene evidence is obtained as a matter of course which, provided it shows the Helsinki Criteria are met, strengthens a claimant’s case on causation. However, this judgment shows that such evidence is not always necessary where (i) the claimant’s factual account and medical evidence supports one year of continuous exposure or five to ten years of moderate exposure and (ii) that where the diagnosis of asbestosis is not challenged.

A copy of the judgment can be found here

Charmaine Haggerty-Garton (as Widow and Executrix of the Estate of Mr David Haggerty (Deceased)) -v- Imperial Chemical Industries Limited: Case Summary

Introduction

John-Paul Swoboda and Spencer Turner instructed by Dushal Mehta of Fieldfisher recently represented a Claimant in a claim which involved the common law double actionability rule and the circumstances in which the “flexible exception” to the rule can apply.   

The claim was brought by the widow of Mr Haggerty in England. Mr Haggerty died from mesothelioma following exposure to asbestos in Scotland in the 1970’s. The Claimant’s position was that Scots law applied to the claim. If Scots law was found to apply to the claim, the Claimant could bring a claim for ‘loss of society’ under section 4 of the Damages (Scotland) Act 2011, which had the potential to substantially increase the value of her claim. Relatives unable to claim in English law would also be able to join the action if Scots law applied.

This blog post considers the principles relevant to the determination of the applicable law in this claim.  

Applicable Law and the ‘Double Actionability’ Rule

The applicable law in this claim fell to be determined by the common law double actionability rule because the alleged tort occurred before the Private International Law (Miscellaneous Provisions) Act 1995 and the Rome II Regulation came into force.

The origins of the English common law position are set out in Phillips v Eyre (1870) L.R. 6 Q.B. 1 in which Willes J stated that:

“As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England. Secondly, the act must not have been justifiable by the law of the place of where it was done.”

Willes J’s decision came to be regarded as requiring the existence of a civil liability for the harm done which was imposed by the law of place of the tort. However, any civil liability would only be actionable in England if the circumstances of the case, had they occurred in England, would have also given rise to an actionable claim in tort.

The House of Lords considered the applicable law rules in relation to torts committed abroad in the case of Boys v Chaplin [1971] A.C. 356. The majority of the court affirmed the general rule of double actionability as was stated in Phillips.

The rationale for the double actionability rule is twofold. Firstly, it seeks to ensure that a person should not be liable for something which is lawful in the place that it is done and secondly, to provide that a person who is given protection by the laws of one country is protected against legal proceedings in other countries.

The Exception to the ‘Double Actionability’ Rule

In Boys, Lord Wilberforce emphasised that double actionability was to be the general rule but it was not invariable and was subject to a “flexible exception” where the court considers it just to apply it. The exception provides that a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence of that issue and the parties. The exception was not precisely defined in Boys when Lord Wilberforce said that there was:

“great virtue in a general well-understood [double actionability] rule covering the majority of cases provided that it can be made flexible enough to take account of the varying interests and considerations of policy which may arise when one or more foreign elements are present.”

Boys arose out of a road traffic accident in Malta. The Claimant and the Defendant were both normally resident in England but at the time of the accident were stationed in Malta as members of the armed forces. Maltese law provided that general damages could not be recovered for PSLA. The question for the House of Lords was whether or not the Claimant could recover the general damages in his claim brought in England.

The House of Lords determined that, although the Claimant’s claim would fail under the general rule of double actionability, there were clear and satisfactory grounds on which to apply the flexible exception. Lord Wilberforce particularly emphasised the fact that the parties were both normally resident in England and that no policy or interest of Malta would be adversely affected by the application of an English rule in a claim brought by one English party against another.

The difficulty with the exception is that the court in Boys did not provide a set of firm guidelines for determining when the exception could be invoked.

The flexible exception to the double actionability rule was considered again by the Privy Council in Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 A.C. 190 (PC). In Red Sea Lord Slynn said that the exception could be invoked in cases in which the law of the place where the tort was committed was more significantly related to the case as a whole or to a particular issue than was the law of the country in which the action was brought.

The Court of Appeal further considered the exception in Pearce v Ove Arup Partnership Ltd [2000] Ch. 403 (CA). In that case there was a claim in respect of a breach in the Netherlands of a Dutch copyright which would not have been actionable if committed in England. The Court of Appeal said that “the plaintiff’s claim would be defeated if the court were to refuse to apply the exception. But the claim … is one where the English court would have given a remedy, under United Kingdom copyright law, if the facts alleged had occurred in England. This is not a case in which the claim is in respect of some wrong which is conceptually unknown in English law. In our view this is a case where … the exception to the double actionability rule enables the English court to apply Dutch law; and the English court ought to do so.”

In Sophocleous v Secretary of State for the Foreign And Commonwealth Office [2018] EWCA Civ 2167, the Court of Appeal restated the comment made by Lord Wilberforce in Boys, that there needed to be “clear and satisfying grounds” for the flexible exception to be applied. The Court of Appeal stressed the importance of the general rule and emphasised that the courts should not apply the exception readily.

Lord Hope in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 said of the exception that “unless a rigorous approach to this question is adopted, the application of the exception is at risk of giving rise to much uncertainty and to the criticism…that it has become instinctive and arbitrary”

The instant matter was listed for a preliminary hearing to determine whether Scots law or English law applied in whole or to any part of the claim.

The Claimant’s position was that there were clear and satisfying grounds for the Court to find that the applicable law to the claim was Scots law, arguing that:

  1. The exposure took place in Scotland.
  • The Damages (Scotland) Act 2011 provided for a significantly larger damages claim than under the Fatal Accidents Act 1976 and there was the potential for different family members to be compensated under different regimes which would be incongruous.
  • A group of potential claimants in Scotland may have had their claims extinguished if Scots law did not apply to the claim. It would therefore be unjust to minimise damages by reducing what was recoverable to the lowest common denominator as between Scots law and English law.
  • The stated goal of English law was ‘to fulfil foreign rights, not destroy them’, as per KXL v Murphy [2016] EWHC 3102 (QB).

The Defendant’s position was that:

  1. The parties were domiciled in England.
  • The consequences of the tort were and will continue to be experienced in England.
  • The Claimant chose to sue in England rather than in Scotland.

The matter was set down for a preliminary hearing in the High Court to determine the applicable law. Shortly before the matter came before the court the Defendant accepted the Claimant’s position that Scots law should apply to the claim.

The case provided an interesting insight into the authorities surrounding the principle of double actionability and the flexible exception the rule. This case demonstrates that the common law rules are by no means obsolete. Given the majority of asbestos cases involve exposure before the Private International Law (Miscellaneous Provisions) Act 1995 came into force, it is not expected that this will be the last time that practitioners and the courts have to grapple with the issues which arose in this case.

Deborah Head (Executrix of the Estate of Michael Head, Deceased) v The Culver Heating Co Ltd. [2021] EWCA Civ 34

This post was written by Samuel Cuthbert. It concerns the decision of the Court of Appeal in Head v The Culver Heating Co Ltd, which was handed down on Monday afternoon. The Court of Appeal overturned the decision of the High Court that the Deceased, a successful businessman, could not recover any loss of earnings because the profitability of his business would likely continue after his death and so any divided income from his shares in that business would survive his death. Mr Head was alive at trial but had sadly died by the time the case came before the Court of Appeal.

The judgment of the Court of Appeal can be read here.

Background

This was an appeal against the judgment of Her Honour Judge Melissa Clarke on the principal issue of what damages should be awarded for the Deceased’s ‘lost years’ claim, where the Deceased was the founder and managing director of his own heating and ventilation company, Essex Mechanical Services Ltd (“EMSL”). The Deceased was both paid a salary and received divided income on his shares in ESML.

At first instance

The Defendant relied upon Adsett v West [1983] QB 826in which McCullough J distinguished between earned income arising from a claimant’s capacity to work as recoverable in a ‘lost years’ claim, and income derived from capital surviving a claimant’s death which is not recoverable in a ‘lost years’ claim.

The Judge accepted the Defendant’s argument that the Deceased’s income was derived from his successful business and would not be lost. Accordingly, the judge valued this aspect of the claim at zero, in contrast to the £4 million which the Claimant sought. The Judge asked whether it was relevant for the purposes of a ‘lost years’ calculation that the Deceased’s dividend income from his EMSL shares would survive his death. The judge summarised her reasoning at [11]:

  1. the principles of Adsett v West applied;
  2. on the balance of probabilities, the profitability of EMSL was likely to continue after Mr Head’s death, therefore the dividend income from the shares that he and his wife held in EMSL was likely to survive his death;
  3. this dividend income was greater than the ‘surplus’ income he enjoyed;
  4. per Adsett v West, there was no loss in the ‘lost years’.

The Judge concluded at [70] that “the real distinction being drawn by McCullough J in Adsett v West is not between earned income and income from capital but from income which is lost on death and income which survives death”.

The Judge refused permission to appeal, as did Simler LJ on the papers. Following an application under CPR 52.30, which codified the principle set out in Taylor v Lawrence [2003] QB 528, the order refusing permission was revoked and the question was referred for determination by the Court of Appeal. Bean LJ, giving the lead and unanimous judgment, stated that:

“The overwhelming majority of Taylor v Lawrence applications are entirely unfounded but this one was a rare exception, perhaps the most striking one I have seen during six years’ service in this court.”

It was deemed necessary to reopen the determination of appeal in order to avoid “real injustice”.

On appeal

There were seven grounds of appeal. The first alleged that the decision was based on a misunderstanding of the expert accountancy evidence and a mistaken assumption that those experts had agreed that the profits of EMSL would continue undiminished after the Claimant’s death. Bean LJ found it unnecessary to resolve this ground in light of his judgment on the subsequent six grounds which are dealt with in concert.

Bean LJ accepted the position as set out in Adsett that the correct line to draw was between loss of earnings from work and loss of income from investments. Significantly, it was held, Adsett involved a claimant whose shareholdings and their respective dividend income had been gifted to him. Analogously, it was stated that had the Deceased retired prior to the onset of mesothelioma symptoms, the loss of earnings claim would be zero. However, it was accepted by HHJ Clarke that the Deceased was integral to the running of EMSL and that would have continued to be the case but for the mesothelioma.

The Deceased was paid a very modest salary which was fixed for tax efficiency and, as at [33], in light of the Deceased being the driving force behind EMSL “it made no sense at all […] to say that this was the full extent of his earnings from work.” As a matter of logic, all of the Deceased’s income from EMSL represented the fruit of his labours and not a return on an investment. The corollary to that is set out at [35] whereby Bean LJ recognises two points. First, at the point at which the Deceased would have stopped working full time, if he retained his shares in the company, his dividend income would be pro rata income on investments and not earnings from his work. Second, upon the Deceased stopping work altogether, any surviving dividend income would entirely constitute income on investments.

At [34], Bean LJ agreed with the Appellant’s submission that the nature of a ‘lost years’ claim was to compensate the earning capacity which had been personally lost by a claimant:

“Mr Head was free to dispose of that income in whatever way he chose. By contrast, as Mr Steinberg rightly observed, he could not make a testamentary disposition of his own future earning capacity. It was not necessary for him to be able to plead and prove what the cost of a replacement would be to EMSL: that would be to mischaracterise the nature of a lost years claim, which requires assessment of the value of the earnings or earning capacity which the claimant personally has lost.

The Court of Appeal therefore set aside the Judge’s assessment of  the ‘lost years’ claim, and remitted the case for an assessment of damages before the Senior Master.

Comment

This judgment is hugely significant in directing the manner in which courts address quantification of the ‘lost years’ claims. There is now clear authority that a lost years claim should reflect the annihilation of the claimant’s future earning capacity by their illness.The earnings which the Deceased lost were not a return on any kind of investment in EMSL, but a reflection of his acumen, experience, skill and hard work. The value of that work was extinguished upon the Deceased’s death, and so falls to be recovered. The fact that EMSL may continue to make a profit in the future is immaterial to the personal financial loss which the Deceased suffered by reason of the mesothelioma.

It further represents a recognition of the fact that, for the purposes of ‘lost years’ claims, any quantification of income must fully embrace the economic reality of a claimant’s business structure. Distinguishing between salary and dividend income for such purposes does not appreciate that such lines are drawn for the purposes of tax-efficiency. Separating the two artificially and unfairly hives off income which was nonetheless the fruits of the Deceased’s labours.

The language used by Bean LJ at [6] is striking: “I consider that it was indeed necessary to reopen the determination of this appeal in order to avoid real injustice”. Such bold statements of fundamental principle are rare and speak to the significance of this judgment for both the Deceased’s widow and claimants more broadly.This judgment affirms that properly compensating a claimant for their loss of earnings in the ‘lost years’ requires close scrutiny and appreciation of which earnings are the fruits of their labours, and which are a return on an investment. Bean LJ highlights at [35] that Mr Head’s evidence regarding the involvement he would have continued to have in EMSL as he aged was accepted by the judge at first instance. Logically it must follow that the assessment of damages maps that evidence in compensating the Deceased’s estate.

Harry Steinberg QC and Kate Boakes – instructed by Peter Williams of Fieldfisher LLP – acted for the Appellant.

Pinnegar (Skeen Deceased) v Kellogg International Corp & ICI Chemicals & Polymers [2020] EWHC 3431 (QB)

This post by Ivan Bowley – who acted for the claimant in the case – comments on the recent decision of the High Court in Pinnegar v Kellogg International & ICI. This case was a decision on the facts but dealt with a number of issues that sometimes arise in very old asbestos claims.


The deceased, Mr Skeen, worked for Kellogg International as a pipe fitter at ICI Wilton for about 6 – 8 months in the tax year 1966/67. He alleged that during this employment he had worked alongside laggers who were stripping old asbestos lagging and preparing replacement lagging, mixing asbestos paste and cutting asbestos sections. The deceased stated that at the end of a typical working day he was covered in white asbestos dust. He developed mesothelioma and died in 2017.

The only factual evidence on exposure was a single statement from the deceased taken shortly before he died. In that statement the deceased provided detail about his entire working life including his work at ICI Wilton. Some 50 years after the alleged exposure took place he recalled particular details about the site, the work that was generally taking place on site at that time and a number of specific details that were of limited relevance to the facts in issue but nevertheless demonstrated the quality of his recollection.

At an early stage the claimant sought judgment on Show Cause against both defendants, but this was successfully resisted. The defendants relied upon a preliminary report from their expert engineer, Dr Alan Jones of the IOM, who questioned the reliability of the deceased’s account. In common with many such claims with limited factual evidence the presentation of a preliminary report by defendants, questioning the veracity of that evidence, was sufficient to persuade the Master that the defendants had overcome the threshold test in Silcock v HMRC and should avoid judgment.

ICI’s defence asserted that at the material time it was aware of the dangers of asbestos, had in place suitable guidance about the risks of asbestos exposure and effective precautions designed to protect its own employees and the employees of contractors working on its sites. ICI’s disclosure supported this assertion, but it did not serve any witness evidence to show that such guidance had been given to workers or that precautions had been implemented.

ICI also disclosed a number of other important documents, one of which, a spread sheet showing the dates of the construction of various buildings at ICI Wilton, indicated that the deceased had probably worked on the construction of a particular building that had not been lagged with asbestos. A further document, described as an “as built” specification for the lagging within that building, recorded that all the lagging materials used were non-asbestos. Armed with this evidence the defendants denied exposure to asbestos and continued to deny the claim.

After exchange of experts’ reports and the preparation of their Joint Statement the Claimant’s expert engineer, Chris Chambers, identified an ICI document that had not been disclosed by ICI but which demonstrated that the non-asbestos lagging alleged by the defendants to have been used on site had only been developed close to the end of the tax year in which the deceased was exposed. The claimant’s case at trial was that the deceased must therefore have been describing exposure to asbestos lagging (a) because the non-asbestos alternative was not yet available commercially when he was on site, and (b) because the deceased had described being covered in “white” asbestos dust whereas the new non-asbestos lagging being developed at that time was coloured either “yellow” or “pink”.

It was against this background that the Judge had to consider the quality and reliability of the deceased’s original statement. As can been seen from the judgment (paras 6 and 42) the judge accepted that the deceased’s recollection was reliable.

At trial the defendants attacked the reliability of the deceased’s statement. They relied upon the decision of Leggatt J in Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560, and in particular his comments at paras 16 – 20 of his judgment about the questionable reliability of claimant lay witness evidence. Gestmin is frequently relied upon by defendants, particularly at the Show Cause stage, to seek to undermine a claimant’s lay witness evidence and avoid judgment, often in circumstances where the defendant in question has no witness evidence of its own. A number of other judges have made similar comments to Leggatt J. However, more recent decisions, including CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 and Smith v Secretary of State for Transport [2020] EWHC 1954 (QB) provide helpful commentary on the limitations of what was said in Gestmin. Ultimately, as HHJ Platts observed in the present case (para 5), these judgments do no more than remind judges of their fact-finding obligations. They do not provide statements of legal principle.

As part of the process of seeking to undermine the deceased’s evidence, at an early stage in the litigation the defendants sought disclosure of attendance notes prepared by the claimant’s instructing solicitor at the time the deceased’s statement was taken. This request was unsurprisingly refused on grounds of legal professional privilege. At trial the defendant brought the relevant correspondence to the attention of the judge and invited him to take the claimant’s refusal into account when assessing the deceased’s evidence. The object of this exercise was to add weight to the defendant’s assertion that the deceased’s statement may have been the product not only of his own recollection but was drafted with assistance from his solicitor. Correctly, in the writer’s opinion, the judge refused to attach any weight to the claimant’s refusal to disclose the relevant attendance notes (para 6).

The claimant succeeded at trial. Damages were agreed but the claimant’s solicitor had made an effective Part 36 Offer and the claimant therefore recovered an additional sum pursuant to CPR 36.17(4). This case is a useful reminder of the potential benefit to claimants using the Part 36 procedure.

Weyer v Prescot

This post was written by Aliyah Akram, who acted for the Claimant in this case.


This was a claim brought under the Law Reform (Miscellaneous Provisions) Act 1934. 

The Deceased, Mrs Weyer, was exposed to asbestos through washing her husband’s overalls. Mr Weyer worked for the Defendant, formerly known as Kitsons Insulations Limited, for almost 20 years. He was a thermal insulation engineer, or lagger, and so he worked extensively with asbestos insulation. 

In this assessment of damages, judgment having previously been entered against the Defendant, Michael Ford QC, sitting as a Deputy Judge of the High Court awarded the sum of £90,000 for pain, suffering and loss of amenity. 

In determining quantum the judge heard that prior to the onset of the disease the Deceased had been fit and healthy. He found that she was a brave and stoical woman who first saw her GP many months after she began to experience symptoms as a result of the disease. In total she suffered from symptoms as a result of the disease for around 14 months. 

She underwent chemotherapy but was not fit enough to continue with her treatment. Towards the end of her life she suffered from severe weight loss and struggled with intense pain. The judge noted that there were difficulties with controlling her pain and she struggled to sleep. He also commented on the tragic family circumstances, her husband had himself died as a result of lung cancer. Two of their children had also worked for the Defendant and been exposed to asbestos. The Deceased had lost around 10.6 years life expectancy. 

The judge also made awards for care (£9,250), travel expenses (350), miscellaneous expenses (£560) and funeral expenses (£4,284).

The case will be on Lawtel shortly.

Gendered experience of mesothelioma study

This post was written by Aliyah Akram, who was on the advisory group to the study.


In a study published this month, a research team from the University of Sheffield examined gendered experiences of mesothelioma. The full report is certainly worth a read by anyone practicing in this area but a number of findings are of particular interest to asbestos lawyers. 

The study relied on quantitative and qualitative data, both from interviewing patients with mesothelioma and from analysing results from the MORE survey and data from HASAG. 

Statistics show that mesothelioma is a significantly more common in men (83% of cases) than in women. The difference in experiences of the disease go beyond occurrence, however. Mesothelioma tends to be more aggressive in men, more invasive and metastasising. Unsurprisingly, therefore, women tend to have far higher survival rates. But further evidence shows that there may a steeper dose-response curve in relation to asbestos exposure for women. This would suggest that women are more susceptible to developing mesothelioma. 

This seems of particular relevance when the report considers how women are exposed to asbestos. Men tended to be exposed in construction-related occupations where they directly handled asbestos. For women para-occupational exposure via a family member’s overalls was common, but a significant proportion were exposed through their work. That exposure tended to occur due to asbestos materials in the working environment, rather than because they worked with asbestos directly. As we know, certain occupations which are dominated by women put them in the types of buildings in which asbestos use was especially prevalent, particularly schools and hospitals. 

The study also noted that women are less likely to seek legal advice and when they do are less likely to receive compensation. Female interviewees expressed concern that seeking compensation is too costly, time-consuming or would make the experience of living with mesothelioma more challenging than it already is. The researchers noted different societal expectations, where men are expected to provide financially but women were concerned about avoiding the emotional burden of legal action.

For asbestos lawyers, two of the report’s practice notes are worth bearing in mind:

  • It is important to take an occupational history which assesses the working environment as well as the work which was carried out. 
  • Further steps need to be taken to raise awareness of compensation routes for those who have not worked with asbestos directly.

Hamilton v N G Bailey [2020] EWHC 2910 (QB)

This post by Ivan Bowley comments on the recent decision of the High Court in Hamilton v N G Bailey, which concerned the Court’s approach to the assessment of general damages for pain and suffering in a low-disability asbestosis claim and the Court’s analysis of the JC Guidelines for the Assessment of Damages in Personal Injury Cases (15th Edn).


The claimant, who was aged 74 at the date of assessment, developed asbestosis as a result of exposure to asbestos during a period of employment with the defendant as an electrician between 1968 and 1981. Judgment was entered at the first CMC and the case was listed for an assessment of damages. The defendant chose not to put questions to the claimant’s medical expert and called no expert evidence of its own. The only factual evidence was from the claimant who was not required to give oral evidence at trial.

The claimant had a 10% respiratory disability due to asbestosis. His medical expert predicted that the respiratory disability would probably increase by a further 5% during the claimant’s remaining life expectancy of about 14 years. The claimant had minimal symptoms and only became aware of breathlessness, some chest tightness and fatigue when gardening. He had no other complaint. He also had small risks of more severe progression of asbestosis, lung cancer and mesothelioma. He sought a provisional damages award.

Both parties invited the court to use the JC Guidelines figures for non-malignant asbestos disease as a starting point, but disagreed about the appropriate bracket:

“£36,060-£99,330 Asbestosis and pleural thickening—where the level of disability attributable to asbestos will be in excess of 10% causing progressive symptoms of breathlessness by reducing lung function. Awards at the lower end of the bracket will be applicable where the condition is relatively static. Higher awards will be applicable where the condition has progressed or is likely to progress to cause more severe breathlessness. Awards at the top end of the bracket will be applicable where mobility and quality of life has or is likely to become significantly impaired and/or life expectancy significantly reduced. This is a wide bracket and the extent of respiratory disability will be highly significant with disabilities of 10–30% being at the lower end, 30–50% in the middle, and in excess of 50% at the higher end.

£14,140-£36,060 Asbestosis and pleural thickening—where the level of respiratory disability/lung function impairment attributable to asbestos is 1–10%. The level of award will be influenced by whether it is to be final or on a provisional basis and also the extent of anxiety.”

The claimant invited the Court to value the claim along conventional lines, having regard to the JC Guidelines and a number of previously decided cases. The defendant sought a more arithmetic approach, arguing that the Court should identify a full and final figure within the lower bracket but then discount that figure for the risks of more serious conditions to reflect the fact that the claimant was seeking a provisional damages award.

When considering the appropriate bracket, the Judge identified what he considered to be an anomaly in the JC Guidelines; specifically that if both brackets in the Guidelines reflected both provisional and full and final awards from previously decided cases there appeared, to the Judge, to be a discontinuity between the brackets (paragraph 33). His concern was that for similar men with 10% respiratory disability on either side of the threshold between the brackets, one would receive provisional damages and the other full and final damages of about the same amount (about £36,000).

The Judge adopted the defendant’s “arithmetic” approach, having decided that the starting point for damages should be a figure in the lower bracket, which he then adjusted down for the value of the risks of a more serious condition. He then stood back and adjusted that figure back up again to take account of the cases to which he had been referred, resulting in an immediate award of provisional damages of £32,000.

Comment

The defendant’s arithmetic approach to the assessment of damages for pain and suffering in non-malignant asbestos claims has its genesis in the judgment of Smith LJ in Rothwell v Chemical & Insulating Co [2006] Civ 25, at paragraphs 174-179. The case concerned the actionability of asymptomatic pleural plaques. The Court of Appeal was invited to consider how to increase a provisional damages award in an asymptomatic pleural plaques claim to compensate for the risks of more serious conditions developing in the future. The “principled approach” set out in the judgment of Smith LJ (with whom the majority agreed on this point) is to apply the percentage risk of the more serious condition (i.e. malignancy) to an assumed valuation of damages for pain and suffering for that condition, and then add that to the immediate award for the existing injury.

On a number of occasions since the decision in Rothwell, judges have been invited to adopt this approach when valuing damages in non-malignant asbestos disease claims. Frequently, however, they have not done so and have instead adopted the more traditional method of valuing the claim having regard to previously decided cases and the JC Guidelines.

In Hamilton, the claimant submitted that while it might be appropriate to increase the valuation of an immediate provisional damages award to compensate for future risks by applying Smith LJ’s methodology in order to reach a full and final valuation, it was not appropriate to carry out the same exercise in reverse to derive the current value of a provisional damages award from a full and final figure. The Judge did not entirely accept the claimant’s submission on this point, stating that provided it was clear how the starting figure was reached and what it contained, it could then be increased or decreased as appropriate (see paragraph 26).

With respect to the Judge, reducing a full and final figure on an arithmetic basis could lead to anomalous results. The following example illustrates the problem: assume two otherwise identical men of the same age and life expectancy etc. both of whom have asbestosis giving rise to a 10% respiratory disability causing identical symptoms. The only distinguishing feature is that the first man has much higher risks of malignancy (say 6%) because he had a far greater exposure to asbestos than the second man (whose risk of malignancy is say 3%). If the same judge in both cases started with a full and final valuation for a 10% disability of £36,000, and then discounted from that figure a sum to reflect the risks of malignancy to arrive at the value of the provisional damages award, each man would receive a different immediate award, despite the fact that both had the same injury and symptoms. The sum to be deducted from the award to the man with the higher risks would be say £90,000 x 6% = £5,400 and from the award to the second man £90,000 x 3% = £2,700. The first man would receive an immediate provisional damages award of £30,600 and the second man would receive £33,300 without any justification for the difference.

The answer to this problem might be that the situation described above would never in reality arise, because in each case the full and final award used as a starting point would reflect the difference in the risks of malignancy. However, there is a paucity of recent quantum reports for non-malignant asbestos disease, particularly for lower levels of disability, and many of the decisions do not provide sufficient information to enable direct comparison to be undertaken.

Practitioners should also bear in mind that Smith LJ recognised that her approach would not necessarily apply to every case: “I do not suggest that the calculation should be followed precisely in every case. There may be special circumstances in which it is not appropriate. For example, if the claimant has another morbid condition, unrelated to asbestos, which is likely to reduce his expectation of life substantially, it may well be appropriate to reflect that in the assessment of the damages for the risks of malignant asbestos disease.” (at paragraph 179). An example of this is Ibbs v Michelin Tyres [2010] EWHC 1389.

A further issue concerned the question of which of the JC Guidelines brackets the claim in question fell into. The claimant’s disability at the date of trial was 10%, which is not an uncommon finding in non-malignant asbestos disease claims. That level of disability could arguably have fallen within the top of the lower bracket (1 – 10%) or the bottom of the higher bracket (10% or above). What distinguished this case was that there was a probability of progression by a further 5% disability, but that was not sufficient to persuade the judge to place the case in the higher bracket. He focused instead on the current level of disability, finding that the lower bracket was for a respiratory disability of 10% and below and the higher bracket for disability in excess of 10% (paragraphs 43 – 44). The judge observed that for a man with an 8% disability which was predicted to increase by 5% damages would still fall within the lower bracket because the current disability was less than 10%.

If this analysis is correct, however, it follows that any current disability of 10% or less should be valued in the lower bracket, regardless of how rapid, severe or debilitating the future progression of that existing condition might be. A man with a current disability of 10%, but who was predicted to progress to a future disability of say 30%, would still fall within the lower bracket. In the writer’s opinion, while the judge’s 8% example would inevitably attract a lower award, his analysis cannot be correct for every case involving a current disability of 10%.

What is required in any given case is for the court to look at the evidence and then stand back and consider what is an appropriate immediate award for the injury in question having regard to the JC Guidelines and previously decided cases. The process becomes more difficult and prone to error when the judge is invited to compare the case before the court with previously decided awards made on a different basis (full and final rather than provisional) and then somehow adjust the award to make it comparable to the extant claim. The brackets are, as the judge noted, guidelines not tramlines, and the language used to define each bracket should not necessarily be applied too precisely.

The Judge probably got it about right when he said that the cases he had been referred to indicated that for a current 10% disability the range for a provisional award was about £28,000 – £34,000 and for a final award about £31,000 – £37,000 (paragraph 39), but there will still be cases which fall outside those ranges.

Bereavement Damages for Cohabiting Partners

This post by Helen Waller explains the recent amendment to the Fatal Accidents Act 1976, which extends the eligibility for bereavement awards to those who cohabited with the Deceased for the two years up to their date of date.


Whilst 2020 has been a bit of a stagnant year for so many and so much thanks to the pandemic, it has been a year of change for the Fatal Accidents Act 1976. As blogged about earlier in the year, the statutory award for bereavement damages increased to £15,120 for causes of action that accrue from 1 May 2020. Last week, on 6 October, the Fatal Accidents Act 1976 (Remedial) Order 2020 came into force, bringing in amendments for causes of action accruing on or after that date. 

The key change is that section 1A of the Act now benefits from the addition of a provision allowing cohabiting partners of the deceased entitlement to bereavement damages. The term, “cohabiting partner”, is further defined in the new section 1A(2A) of the Act. This is an amendment following Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916. In that case the Court of Appeal made a declaration that the exclusion of cohabiting partners from the categories of persons entitled to bereavement awards was incompatible with Articles 14 and 8 of the ECHR. 

A second amendment that may be of relevance to fatal industrial disease claims is that at section 1A(4), which now provides that where more than one person is entitled to bereavement damages, the sum awarded shall be divided equally between them. Previously this section provided that any award must be divided between both parents of the deceased, where they were entitled. This will bite where the deceased was living separately – but not divorced – from his/her spouse and had been cohabiting with a new partner of long enough standing to satisfy the definition at section 1A(2A). The scenario of a deceased minor who had never married or entered into a civil partnership, but had cohabited with a partner for at least 2 years so as to satisfy section 1A(2A) seems unlikely to arise in the context of asbestos litigation.

Rix v Paramount Shopfitting Company Limited [2020] EWHC 2398 (QB)

In this blog John-Paul Swoboda and his pupil Cressida Mawdesley-Thomas discuss the recent High Court decision of Mr Justice Cavanagh in Rix v Paramount Shopfitting Company Limited [2020] EWHC 2398 (QB).

Rix is the latest case to consider the width and breadth of section 3(1) of the Fatal Accidents Act 1976 (“FAA”), following in the judicial footsteps of Witham v Steve Hill Ltd [2020] P.I.Q.R. Q4 and AB v KL [2020] P.I.Q.R Q1. The issues determined in this judgment were twofold: did Mrs Rix have a valid claim for a financial dependency and if so, how should that dependency be valued. Mr Rix was a businessman with acumen, flair and drive but after his death, his son had stepped into his shoes and the business was even more profitable.

The judgment provides a useful reminder of important principles to be borne in mind when dealing with section 3 FAA claims: one looks at the practical reality when determining whether there is a dependency irrespective of tax arrangements which may be used in family businesses; income derived from capital is not a valid dependency as opposed to income derived from labour; the dependency is fixed at the moment of death which makes nearly all events after death irrelevant to the calculation of the dependency; the question of whether there is a financial dependency is a question of fact meaning there is no one single prescriptive rule to determine the amount of any dependency.

Background

The Claim was brought by the widow of Mr Rix who died of mesothelioma aged 60 having been exposed to asbestos whilst working for the Defendant as an apprentice carpenter / shopfitter in the 1970s. 

After his apprenticeship, the Deceased went on to establish what would become a highly successful limited company, combining a joinery, worktops, and kitchen and bathroom fitting business. The business was still expanding in 2015, shortly before Mr Rix fell ill.

The Deceased’s Business

At the time of his death, Mr Rix owned 40% of the shares in the company.  Mrs Rix owned 40%, and their sons owned 10% each. Mrs Rix’s shareholding produced dividends, and she drew a salary, although this was not to reflect her contribution to the business but was done on accountants’ advice as it was a tax-efficient way of taking money out of the business. After Mr Rix died, Mrs Rix inherited her husband’s shareholding, to own 80% of the shares. In addition to his income from the business, Mr Rix had two small pensions. 

The Judgment

Section 3 of the FAA reads:

Assessment of damages:

In the action such damages, other than damages for bereavement, may be awarded as are proportional to the injury resulting from the death to the dependants respectively.”

The well-established meaning of this arcane language is that a dependant can recover damages if s/he has suffered pecuniary loss resulting from the death, and the pecuniary loss arises from a relationship contemplated under the Act (e.g. husband and wife).

Mr Justice Cavanagh considered the Court of Appeal authorities of Wood v Bentall [1992] PIQR 332 (CA); Cape v O’Loughlin [2001] EWCA Civ 178; and Welsh Ambulance Services v Williams [2008] EWCA Civ 81 and distilled the following principles (emphasis added):

  • The question whether there has been a loss of financial dependency, and, if so, how much, is a question of fact;
  • The courts will take a realistic and common-sense approach to these questions;
  • There is no hard-and-fast or prescriptive approach to the determination, or quantification, of loss of financial dependency;
  • There is a difference between an income-producing asset, such as a rental property or an investment, on the one hand, and a business which was benefiting from the labour, work, and skill of the deceased, on the other.   Where the value of an income-producing asset is unaffected by the deceased’s death, there is no financial loss or injury as a result of the death, and so there is no claim for loss of financial dependency in relation to it under section 3.  Where, however, the deceased worked in a business that benefited from his or her hard work, the dependants will have lost the value of that hard work as a result of the deceased’s death and so will have a financial dependency claim;
  • The question whether a dependant has suffered a loss of financial dependency, for the purposes of the FAA, section 3, is fixed and determined at the date of death;
  • It follows from the fact that the loss of financial dependency is fixed at death that, in a “work/skill” case, the existence of the right to claim loss of dependency, and the value of the loss, is not assessed by reference to how well the business has been doing since the deceased’s death;
  • Moreover, a dependant cannot by his or her own conduct after the death affect the value of the dependency at the time of the death; and

Applying the above principles, it was held that Mrs Rix suffered a loss of financial dependency, notwithstanding that the business is more profitable than it was at the time of her husband’s death.  As in Williams, her husband’s business produced an income for the family which was the result of her husband’s skill, energy, hard work, and business flair.   Although she was a director and shareholder, the reality was that it was her husband, not her, who was responsible for the success of the business. At the time of her husband’s death, she had a “reasonable expectation of pecuniary advantage from the continuance of the life of the deceased” (Pym), because if he had lived his management of the business would have continued to produce an income for her.  O’Loughlin and Williams make clear that, as the value of the dependency is fixed at death, the health of the business after the deceased’s death is irrelevant.  In particular, Williams demonstrated that the existence of, and value of, a dependant’s financial dependency is not affected by any increase in profitability in the business.  

The Defendant argued that Mrs Rix’s interest in the business is, and was at the time of her husband’s death, akin to an income-generating capital asset because it continued to thrive after Mr Rix’s death. This argument was rejected.

“It is clear that, until very shortly before his death, Mr Rix remained the prime mover in the business.  He was primarily responsible for its health and prosperity, as a result of his flair, energy and hard work.  The business was still expanding, having just moved into new premises.  He was the person with the contacts and the know-how.  Jonathan was being groomed to take over, but this plan was still at a very early stage.  As Mr Phillips put it in his submissions, MRER was not a “money-generating beast” that would generate money regardless of who was in charge of it.”

The Defendant also sought to distinguish Wood, O’Loughlin, and Williams on the grounds that Mrs Rix was both a director and shareholder in the business and therefore her dividends and salary should be treated as her own, not something she received as a result of their financial dependency on the deceased. This submission was also rejected.

“The authorities have made clear that courts should look at the practical reality in relation to financial dependence, not at the corporate, financial or tax structures that are used in family arrangements. If one looks at the practical realities, it is clear that the income that Mrs Rix received as director and shareholder was entirely the result of her husband’s work for the business.”

Mr Justice Cavanagh found that the role of the court is not to compare the income of the dependant from the family business before and then after the deceased’s death, and to award the shortfall, if any. That would be illegitimate because dependency is fixed at death, cf. Williams.

The Judge therefore went on to consider the two methods of calculating dependency advanced by the Claimant. As dependency is a question of fact which should not be determined prescriptively, the judge had to determine which methodology was most appropriate. The Claimant’s primary case was that the dependency should be calculated by reference to Mrs Rix’s share of the annual income that Mr and Mrs Rix would have received from the business if he had lived (“Basis 1”). The secondary case was that her financial dependency should be quantified by reference to the annual value of Mr Rix’s services to the business as managing director, calculated by reference to the cost of employing a replacement (“Basis 2”). 

In Wood, Williams and O’Loughlin the Court had adopted Basis 2 to calculate the dependant’s financial dependency. However, it was held that the present case could be contrasted to those cases as the financial dependency claim in this case was concerned “only with income produced by Mr Rix’s labour, skill, energy and flair, not with income produced by his capital assets, or with income produced by a mixture of capital assets and labour.” On that basis Mr Justice Cavanagh made findings as to the joint income, having had the benefit of forensic accountancy evidence, before deducting 1/3 from the joint income to determine the dependency.

Analysis

Successive cases have now shown that the Courts will look at the practical reality of a family situation prior to a deceased’s death. What ‘the practical reality’ is in any given case is likely to be determined by evidence and, as a question of fact, by the judge’s disposition. This is most striking in one aspect of this judgment which, in the authors’ opinion, could easily be determined in a diametrically opposite manner and still conform with the principles to be applied to FAA claims. The finding in question is that the income of the deceased from the business was entirely based on his labour and not on the intangible asset of the business. Whilst this was consistent with the deceased’s own evidence it does not appear to be consistent with the fact that the business has been more profitable since being run by the son, who by all accounts was ill-prepared at the time of death. Whilst the deceased’s labour was no doubt needed to grow and maintain the business (to some extent) the fact that someone, not as experienced as the deceased, could step into his shoes suggests that the deceased had, at least to some extent, created a “money generating beast”, aka a capital asset. This is not to say that Mr Justice Cavanagh was wrong in his finding but simply to emphasis the point that finding in fatal accident claims are intensely fact specific.

Results such as this will cause disquiet among some as the Claimant has been left with more than she had lost and which runs contrary to the 100% principle which is so deeply ingrained in our (PI litigators) psyche. However, this is at least in part by design of section 4 the FAA (benefits following death are disregarded).

The most controversial, or perhaps unclear, aspect of this judgment is the actual calculation of the dependency. Firstly, the learned judge used 70% of the profit from the company as the joint income (relying on expert accounting evidence) in preference to the much more familiar cost of replacement services. This approach was justified by the finding of fact the business generated profits because of the deceased’s labour, not accumulated capital, and in this way Williams, Wood and O’Loughlin were distinguished. This might be said to add an inadmissible element of guesswork to the determination of loss (though without reference to the accounting evidence this is not easy to determine). Secondly there was no deduction from the joint income to reflect the amount paid to Mrs Rix from the company (save for rental income which was agreed to be income from a capital asset). This appears incongruous with the fact she was actually paid a salary and received dividends from the company, though does perhaps reflect the reality, as found, that she was no more than a straw partner in the business. Finally, a 1/3 deduction was made (by agreement), presumably to reflect living expenses (though this is not clear), even though the judge had found that a 17.5% deduction would be appropriate for living expenses if the alternative basis were used to calculate the dependency.