Deborah Blake (Executrix of the Estate of Paul Nigel Blake, Deceased) v Mad Max Ltd
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 08 August 2018 |
| Neutral Citation | [2018] EWHC 2134 (QB) |
| Docket Number | Case No: HQ17A02043 |
| Court | Queen's Bench Division |
| Date | 08 August 2018 |
[2018] EWHC 2134 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Marquand
(sitting as a Deputy High Court Judge)
Case No: HQ17A02043
Andrew Hogarth QC (instructed by Irwin Mitchell) for the Claimant
Peter Morton (instructed by BC Legal) for the Defendant
Hearing date: 12 th July 2018
Judgment Approved
Introduction
This judgment concerns issues in the quantification of damages to be awarded to the Claimant following the death of her husband, Mr Paul Blake, on 18 September 2016. Mr Blake developed mesothelioma after exposure to asbestos during the course of his employment with Allied Carpets. The Defendant now has the responsibility for that legal liability. On 15 March 2018 Judgment was entered against the Defendant on the issue of liability. Andrew Hogarth QC appeared for the Claimant and Peter Morton for the Defendant.
Background
Mr Blake was a carpet fitter for the majority of his working life. He started work in 1971 for James Phillips and Son but in 1973 that company was taken over by Allied Carpets and he remained working for that company until 1982. There were 2 aspects to his work that exposed Mr Blake to asbestos. First, it was necessary for him to use a power tool to reduce the size of doors that were insulated with asbestos. Secondly, he was required to remove vinyl flooring, which included asbestos fibres. The claim was that for both activities the Defendant failed to take the necessary steps under the Asbestos Regulations 1969 to reduce his exposure to the asbestos dust.
At around Easter time in 2015 Mr Blake started coughing badly and thought he had 'flu. On 30 June 2015 Mr Blake was diagnosed with mesothelioma. Mr Blake died from that condition on 18 September 2016 at the age of 61.
The Claimant is the sole executor of Mr Blake and brings a claim under the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA) and the Fatal Accidents Act 1976 (FAA) on her own behalf and on behalf of the estate.
The issues
The parties have been unable to agree the following issues:
i) general damages for pain, suffering and loss of amenity;
ii) whether funeral expenses include the cost of a wake;
iii) the value of care provided by the Claimant to Mr Blake during his illness;
iv) the value of services provided by Mr Blake;
v) Mr Blake's level of earnings and likely retirement age;
vi) a claim for servicing a car;
vii) the future income dependency; and
viii) damages for loss of intangible benefits (loss of a spouse)
The evidence
I will deal with the detail of the evidence under the various sub headings, as appropriate. I record here that in addition to documentary evidence of earnings and other matters I had the following written evidence:
i) a medical report from Professor Maskell, consultant physician;
ii) three witness statements from Mr Blake made before his death and served with a Civil Evidence Act notice; and
iii) a witness statement dated 24 April 2018 from the Claimant.
The Claimant also gave oral evidence before me. I found her to be an honest and reliable witness doing the best that she could to assist the Court.
General damages
Mr Blake's statement of 27 August 2015 records that his symptoms started around Easter 2015 when he was coughing badly. At the time of the statement he found climbing an incline difficult, he had shortness of breath, anxiety, pain, tiredness and weight loss. Professor Maskell's report records that the initial investigations showed a large collection of fluid on the right lung (pleural effusion), complaints of right sided chest discomfort and weight loss. Fluid was removed for analysis and a thoracosopy (invasive examination inside the chest) with biopsies was performed. Mrs Blake's witness statement records that Mr Blake underwent six cycles of chemotherapy (the last cycle in December 2015) and he lost some hair and became very lethargic. His sense of taste changed and he lost his appetite and enjoyment of eating. Towards the end of 2015 Mr Blake had a catheter inserted into his chest in order to drain off the fluid that had accumulated there. In early 2016 Mr Blake's breathlessness and mobility became worse and deteriorated during 2016. He suffered a couple of falls although was not seriously injured and by July 2016 he was on a morphine-based painkiller. From mid-July until his death Mr Blake's stomach started to swell and needed to be drained. He was very thin, frail and immobile. He spent a week in a hospice.
Prof Maskell's report identifies that Mr Blake had no previous significant illnesses and was a non-smoker. Mrs Blake confirmed that he was physically fit and well prior to his diagnosis. As at the date of Prof Maskell's report dated 15 September 2015 Mr Blake's respiratory disability was 35% (Coalminers Respiratory Disease Litigation Disability Rating Scale, 1999). The time interval between the onset of symptoms and death was in the region of 16 months. If the mesothelioma had not developed, Professor Maskell's opinion is that Mr Blake would have lived a further 27 years (this is not challenged by the Defendant).
I was provided with an agreed table summarising the features of reported cases of court awards in the past 5 years concerning general damages for mesothelioma. It is convenient to reproduce the relevant parts of that table together with additional features I have derived from the case reports.
| Case | Age at death | Duration of illness (years) | Award adjusted for RPI | Life expectancy in years (where available) | Additional features |
| Grant v Secretary of State for Transport [2017] EWHC 1663 (QB) | 70 | 3.4 | £94,500 | 12 cycles of chemotherapy, one of experimental treatment and radiotherapy. Ringing in his ears and hallucinations. Swollen feet with oozing fluid. Severe pain for five months uncontrollable in the end. | |
| Jones v Robert McBride Homecare Ltd (Lawtel) | 70 | 6 years | £96,000 | 18 | Five courses of chemotherapy and drug trials. |
| Wolstheholme v Leach's Of Shudehill Limited [2016] EWHC 588 (QB) | 60 | 2.4 | £96,000 | 15.6 | Secondary condition of polymyalgia rheumatica caused by mesothelioma. Herpes Zoster leading to shoulder pain. Swelling of legs with skin splitting fluid loss and pressure sores. In great pain. Increasing severity of symptoms for the last 29 months. |
| John Davey (Lawtel) | 86 | 3.5 years | £93,000 | Massive pleural effusion, surgical procedures, ankle swelling. Unable to go out for the final 18 months and towards the end very severe symptoms. Anxiety. | |
| 66 | 2.2 years | £91,400 | Infected surgical wounds. Surgery to the chest. Six cycles of chemotherapy and radiotherapy. Development of peripheral neuropathy and ringing in the ears. | ||
| Zambarder v Shipbreaking Ltd (Lawtel) | 70 | 0.6 | £86,400 | 12.6 | Surgery to the chest, radiotherapy and complex pre-existing conditions. |
| 46 | 0.5 | £87,000 | Hydro pneumothorax. Radical surgery to the chest. Severe pain. Admitted to hospice because of vomiting and pain. | ||
| Ghoorah v West Essex CCG (Lawtel) | ? | ? | £94,600 | ||
| Dadd v Associated Electrical Industries Ltd and Others (Lawtel) | 66 | 6 | £94,000 | 15.3 | Recurrent pulmonary embolism (blood clots on the lung) caused by the mesothelioma. Chest pains. Loss of taste and smell. Nausea diarrhoea and abdominal pain. |
The 14th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JCG) provides the range of £55,830 up to £100,350 for mesothelioma. The accompanying text is 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 involved causing additional pain and/or breathlessness, the level of the 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.”
Mr Hogarth submitted that the appropriate level for general damages was £92,500 1. He submitted that, looking at the table of cases there are variables in each one but in particular Mr Blake was young and the duration of his illness was relevant. Mr Morton, Counsel for the Defendant, submitted that general damages should be awarded at £87,500 on the basis of an overall assessment of the decided cases.
As can be seen from the table of cases above the duration of the illness and the symptoms of the illness are key features in determining the level of an award. Zambardier and Knauer show a period of months before death, with significant symptoms but awards in the region argued for by Mr Morton. Those cases where survival has been in years have awards at the higher end of the bracket no doubt because symptoms have been suffered for substantial periods of time. Mr Blake's symptoms and duration of illness are not as severe as in Mosson or Davey and taking all of the evidence into account and the JCG my conclusion is an award of £90,000 is correct.
Funeral expenses and the cost of a wake
The funeral expenses are...
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