Mrs Monica Haxton v Philips Electronics UK Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Beatson,Dame Janet Smith |
| Judgment Date | 22 January 2014 |
| Neutral Citation | [2014] EWCA Civ 4 |
| Docket Number | Case No: B3/2013/2073/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2014 |
[2014] EWCA Civ 4
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR DAVID PITTAWAY QC
Sitting as A Deputy Judge of the High Court (Queen's Bench Division)
Claim No HQ 13X00594
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Lord Justice Beatson
and
Dame Janet Smith
Case No: B3/2013/2073/QBENF
Mr Robert Weir QC and Mr Harry Steinberg (instructed by Irwin Mitchell LLP) for the Appellant
Ms Catherine Foster (instructed by Wragge & Co LLP) for the Respondent
This is an unusual case raising a point of some novelty. Both Mr and Mrs Haxton developed mesothelioma as a result of being exposed to asbestos. Mr Haxton was employed as an electrician by Philips Electronics UK Limited (Philips) for over forty years until he retired in 2004. In the course of his work he was subjected to asbestos dust. He began to develop symptoms attributable to mesothelioma in June 2008 and subsequently died from the disease in 2009. Mrs Haxton was never employed by Philips but she washed her husband's boiler suits and work clothes and as a result also came into contact with the dust lodged in the fibres. She developed mesothelioma symptoms in January 2011 and was diagnosed with that disease in January 2012. The medical prognosis in a report dated February 2013 was that she would live between six and twelve months; in fact happily she is still alive and attended the appeal hearing.
Mrs Haxton has issued two separate proceedings against the same defendant, Philips. One was in her capacity as widow and administratrix of the estate of her late husband. She claimed damages on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934, and also as a dependant under the Fatal Accidents Act 1976 as amended. The claim, which was issued on 25 June 2012, alleged negligence and breach of statutory duty. Liability was conceded and ultimately damages were agreed and a consent order made on 13 May 2013. The damages for loss of dependency were premised on the assumption that she had a remaining life expectancy of 0.7 years because of her illness.
Earlier, on 11 February 2012, she had issued proceedings in her own right, also in that action seeking damages for negligence and breach of statutory duty. Liability was again conceded and damages agreed at £310,000 save for one disputed item which is the subject of this appeal. It relates to the claim for future dependency arising from her husband's death. Her case can be simply summarised. She says that but for Philips' negligence, her life would not have been cut short and the assessment of her dependency claim in the first action would have been significantly greater. Philips should therefore compensate her for that loss. It is agreed that, if recoverable, the loss under this head, which results principally from lost earnings and pension benefits, is £200,000. The issue is whether this is in law a recoverable head of damage.
Mr David Pittaway QC, sitting as a Judge of the High Court, held that it was not. Mrs Haxton now appeals that decision by leave of the judge.
The underlying principle in assessing the value of a dependency claim is laid down by section 3(1) of the 1976 Act which provides that the courts must award “such damages.. as are proportioned to the injury resulting from the death to the dependants respectively.” In order to be proportioned they must be related to the actual loss suffered, although statute has modified that principle in certain ways. The position was summarised by Lord Diplock in Cookson v Knowles [1979] A.C. 567–568 as follows:
“When the first Fatal Accidents Act was passed in 1846, its purpose was to put the dependants of the deceased, who had been the bread-winner of the family, in the same position financially as if he had lived his natural span of life…..
Today the assessment of damages in fatal accident cases has become an artificial and conjectural exercise. Its purpose is no longer to put dependants, particularly widows, into the same economic position as they would have been in had their late husband lived. Section 4 of the Fatal Accidents Act 1976 requires the court in assessing damages to leave out of account any insurance money or benefit under national insurance or social security legislation or other pension or gratuity which becomes payable to the widow on her husband's death, while section 3(2) forbids the court to take into account the re-marriage of the widow or her prospects of re-marriage. Nevertheless, the measure of the damages recoverable under the statute remains the same as if the widow were really worse off by an annual sum representing the money value of the benefits which she would have received each year of the period during which her husband would have provided her with them if he had not been killed. This kind of assessment, artificial though it may be, nevertheless calls for consideration of a number of highly speculative factors, since it requires the assessor to make assumptions not only as to the degree of likelihood that something may actually happen in the future, such as the widow's death, but also as to the hypothetical degree of likelihood that all sorts of things might happen in an imaginary future in which the deceased lived on and did not die when in actual fact he did.”
The significance of Mrs Haxton's own death is that dependency would in any event have ended at that point even had her husband still been alive, and the widow suffers no loss after that date. The agreed damages in the first action were calculated in accordance with that principle and Mr Weir QC accepts that this was the proper basis of assessment. Mrs Haxton was necessarily limited to damages calculated by reference to her own life expectancy. However, had she not herself contracted mesothelioma as a result of Philips' negligence, she would have recovered more in her dependency claim because her life expectancy would have been greater. Mr Weir submits that although this is an unusual case in that the same defendant is common to both claims, that is not a material factor. The position would be the same, and the head of loss would be recoverable, even if a different tortfeasor had negligently shortened Mrs Haxton's life.
Mr Weir submits that the starting point in assessing whether this is a recoverable head of loss should be the principle enunciated in the well known passage in the judgment of Lord Blackburn in Livingstone v Raywards Coal Co (1880) 5 App. Cas 25,39:
“… where an injury is to be compensated by damages, in settling the sum of money to be given…you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong …”
Mr Weir accepts, however, that whilst this is the starting point, it is not the end of the compensation analysis. Establishing a causal link between the negligence and the damage is a necessary but not always sufficient condition to ground liability. Lord Nicholls of Birkenhead explained the position in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 1090–1091:
“How, then, does one identify a plaintiff's ‘true loss’ in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant's liability for the plaintiff's loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these enquiries, widely undertaken as a simple ‘but for’ test, is predominantly a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment.
70. The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment (‘.. ought to be held liable..’). Written large, the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are interchangeable). To adapt the language of Jane Stapleton in her article ‘Unpacking “Causation”’ in Cane and Gardner (Ed) Relating to Responsibility (2001), page 168, the inquiry is whether the plaintiff's harm or loss should be within the scope of the defendant's liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant's responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.”
Mr Weir submits that, so far as the second inquiry is concerned, there is no policy objection here to allowing the claimant to recover this head of damage and the judge was wrong to hold otherwise.
Ms Foster, counsel for Philips, supports the decision of the judge. He had accepted a submission to the effect that to allow the claimant to recover this head...
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