Patricia Georgina Grant (widow and executrix of the estate of Douglas Michael Grant, deceased) v The Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Martin Chamberlain |
| Judgment Date | 30 June 2017 |
| Neutral Citation | [2017] EWHC 1663 (QB) |
| Docket Number | Case No: HQ14A03229 |
| Court | Queen's Bench Division |
| Date | 30 June 2017 |
[2017] EWHC 1663 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Chamberlain QC
(Sitting as a Deputy High Court Judge)
Case No: HQ14A03229
Harry Steinberg QC and Patrick Kerr (instructed by Charles Lucas & Marshall) for the Claimant
Patrick Limb QC (instructed by DWF LLP) for the Defendant
Hearing date(s): 10, 11 and 12 May 2017
Judgment Approved
Martin Chamberlain QC:
Introduction
Mr Douglas Grant was born on 26 May 1944. He left school in 1959 and was employed by the British Railways Board ("BRB") at their depot in Swindon until December 1960. He was based in the boiler shop and was exposed to asbestos in the course of his work. In July 2011, at the age of 67, he started to suffer from chest pain and breathlessness. He underwent treatment in hospital and in November 2011 was diagnosed with mesothelioma. He had three courses of chemotherapy. In the latter part of 2014 his condition deteriorated. He died on 18 November 2014, aged 70, after considerable suffering.
The Claimant, Mrs Patricia Grant, was born on 9 January 1943. She was at school with Mr Grant and knew him from a very early age. They began a relationship in 1975. They lived together for 38 years, until Mr Grant's death. They married in 201They did not have children. Their devotion to one another is demonstrated by the physical and emotional support she provided to him during his illness and by the efforts he made after learning of his diagnosis to ensure that she was provided for after his death. The Claimant is executrix of her late husband's estate.
The Defendant is successor to the liabilities of the BRB. He accepts that Mr Grant's exposure to asbestos while employed by the BRB materially increased his risk of contracting mesothelioma; and, accordingly, that he is liable to Mr Grant's estate under the Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act") and to Mrs Grant under the Fatal Accidents Act 1976 ("the 1976 Act"). Quantum is not agreed. The heads of loss that remain in dispute are:
i) Under the 1934 Act:
a) general damages for pain, suffering and loss of amenity;
b) care and assistance;
c) business expenses;
d) certain miscellaneous expenses;
e) certain funeral expenses.
ii) Under the 1976 Act:
a) past income dependency;
b) past services dependency: domestic services;
c) past services dependency: business services;
d) future income dependency;
e) future services dependency;
f) loss of intangible benefits.
Before considering these heads one by one, it is necessary to set out some of the background facts.
The witness evidence
I heard oral evidence over two days. In addition to the Claimant herself, evidence was given on her behalf by Mr James Muir (a property developer and friend of Mr Grant), Ms Jodie Brookes (a nursing and care expert) and Mr Peter Barefoot (a property development expert). The Defendant's expert evidence was given by Ms Linda Stewart (nursing and care) and Mr James Lockhart (property development). There was written expert evidence from Prof. N.A. Maskell about Mr Grant's life expectancy had he not contracted mesothelioma, which was agreed. Prof. Maskell also gave written evidence about the Claimant's life expectancy, which, after discussion with the Defendant's expert Prof. David Bowen Jones, also resulted in an agreement.
The facts in outline
Mr Grant's business and other activities before he became ill
The Claimant described her late husband as a "workaholic". The description was not challenged and I accept it. After leaving the employment of BRB, he built up a successful fruit and vegetable business, starting with a market stall in Swindon and going on to establish stalls and then shops in other towns nearby. He diversified into cash and carry and acquired a site in Swindon that could be used for parking lorries. He acquired another site for car parking and obtained planning permission for its use as a Saturday and Sunday market. In order to protect this business, he purchased a nearby public house and let it to a tenant. In 1986, he bought a farm of 100 acres on Lechlade Road at Highworth, about 6 miles from the centre of Swindon.
Competition from supermarkets made it increasingly difficult for fruit and vegetable traders to source produce, so Mr Grant decided to get out of that business. In 1998, he sold the market site to a developer for £1.35m. He used part of the money to build a house for himself and the Claimant on the farmland at Lechdale Road. He entered into negotiations with the local authority about the use of the remaining land and in 2001 obtained planning permission for a golf course, club house and driving range. Having negotiated with an electricity company to raise some electricity poles, he bought four lorries, a stone crusher and a yard at Marshgate to store this equipment. He went on to establish a company selling and recycling stone and tarmac, Swindon Reclamation Ltd. Mr Grant realised that there was a demand for a facility capable of accepting and recycling broken-up stone and other building materials from sites in the vicinity; he ensured that Swindon Reclamation was able to accept such material at times when other local authority-run sites would not; having obtained the necessary waste licences, he then sold some of the material on and used the rest in the construction of the golf course. He sold Swindon Reclamation in 2009 for £778,000. By this time, the golf course, a nine-hole course designed to appeal to new players and seniors, was nearly ready. It opened on 18 October 2010. Mr Grant managed it himself, employing a chef, receptionist and green keeper. In September 2011, planning permission was extended to allow the clubhouse to be used for functions.
Of the 100 acres of farmland Mr Grant had bought in 1986, only 80 were required for the golf course. The remaining 20 lay between the golf course and the existing Blackworth Industrial Estate. In a witness statement prepared for these proceedings, Mr Grant described these 20 acres as "a wedge of agricultural land sitting there between the two", which he aimed to use for development purposes. Mr Lockhart suggested that the location of the golf course may have been designed to "trap" this site so as to make it more likely that the local authority would agree to change its permitted use. He described this, aptly in my view, as a "shrewd" move.
Mr Grant said in his witness statement that he started applying for planning permission to develop the site as long ago 1996. During the trial, the Claimant produced a document prepared in May 2008 by Turley Associates, a respected local firm of planning consultants. It contains representations, made on Mr Grant's instructions, on the Swindon Borough Local Development Framework Core Strategy 2006–2026 (Preferred Options) Report. Among those representations is a justification for the re-allocation of Mr Grant's 20-acre site for economic development (rather than agricultural use). The Claimant said, and I accept, that Mr Grant had always intended to develop and derive income from the site and that he had referred to it as their "pension".
Mr Grant explained in his witness statement that, before the onset of his mesothelioma, he would help his wife in the house, doing decorating and gardening. He did a small amount of DIY. He would jet wash the patio, clean the guttering and maintain the drive. Mrs Grant said in evidence that she prepared the meals.
The course of Mr Grant's illness
Although the parties' positions are not far apart, the award for pain, suffering and loss of amenity is not agreed. There is also a dispute about the quantum of the award for care and assistance. This makes it necessary for me to describe, in outline at least, the course of Mr Grant's illness.
The first sign of trouble was a pain in Mr Grant's chest, which he noticed in July 2011. Two or three weeks later, he started to experience breathlessness. He went to his GP and was referred for an X-ray at Great Western Hospital, Swindon. On three occasions, fluid had to be aspirated from his pleural cavity. He was referred to the Brompton Hospital for a pleural biopsy and, on 18 November 2011, diagnosed with mesothelioma. He was told that the condition was incurable and offered palliative chemotherapy with a view to minimising his symptoms for as long as possible.
Mr Grant had two courses of chemotherapy administered intravenously. Each consisted of six cycles with breaks in between. The first course lasted from December 2011 to April 2012, the second from January 2013 to April 2013. In the spring of 2014, he had a third course of chemotherapy. This was an experimental treatment, administered by tablets, which again consisted of six cycles. It did not help. In October 2014, he was referred for palliative radiotherapy at Oxford. He travelled for an appointment prior to commencement of treatment but, though determined to return, was never well enough to do so.
In her witness statement, the Claimant describes some of the distressing symptoms caused by the chemotherapy, which included ringing in the ears and hallucinations, as well as nausea and vomiting. There were also other symptoms associated either with the progress of the disease or with the medication prescribed to alleviate its symptoms. At one point, Mr Grant's legs and feet became swollen and he used to have to sit with a towel under his feet to absorb the fluid oozing from them. There came a time when his feet were so swollen that he could no longer put his shoes on.
The Claimant properly accepted in cross-examination that, insofar as there was a divergence between...
To continue reading
Request your trial
-
Deborah Blake (Executrix of the Estate of Paul Nigel Blake, Deceased) v Mad Max Ltd
...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 fee......
-
Michael Head v The Culver Heating Company Ltd
... ... Mrs Head is also the Company Secretary ... 26 EMSL's business falls, broadly, ... can never constitute any part of his estate” ... 49 Lord ... for the loss suffered by the deceased in his lifetime. The appellant in Gammell's case ... in oral evidence about the healthy state of EMSL's order book through to 2020 only ... relied on by Mr Head are as follows: Grant v Secretary of State for Transport [2017] EWHC ... ...
-
Ivan Rene Penner v Gerhard Penner
...EWHC 3033 (QB) and Grant (Widow and Executrix of the Estate of Douglas Michael Grant, Deceased v Secretary of State for Transport [2017] EWHC 1663 (QB) the recent case of Magill v Parnel Systems (DB Limited) [2017] says otherwise. HHJ Gosnell, in this case agreed with the judgment in Mosso......
-
Patricia Georgina Grant (widow and executrix of the estate of Douglas Michael Grant, deceased) v The Secretary of State for Transport
...30 June 2017, I handed down a judgment determining various factual and legal issues that had been in dispute in relation to quantum: [2017] EWHC 1663 (QB). (References to paragraph numbers are to paragraph numbers of that judgment, unless otherwise stated.) I gave judgment for the Claimant......