What does it mean to suffer loss? Haxton v Philips Electronics

DOIhttp://doi.org/10.1111/1468-2230.12100
AuthorAchas K. Burin
Publication Date01 Nov 2014
What does it mean to suffer loss?
Haxton vPhilips Electronics
Achas K. Burin*
In Haxton vPhilips Electronics the Court of Appeal considered whether a widow could recover the
diminution in value of her dependency claim following the defendant’s tortious reduction of her
life expectancy. The note outlines the development of the common law, demonstrating that
Haxton is novel but not unorthodox, and tests whether Haxton’s principles can provide a sound
foundation for future cases. Positing three hypothetical scenarios, it argues that the disparity in
outcome, rather than indicating a lack of unifying principle, as was suggested in Jobling vAssociated
Dairies, may be explained by combining Austin’s division between primary and secondary rights
with Gardner and Stevens’ contributions as to how they are protected. Restitutio in integrum
requires consideration of the reasons and values underlying the right in question and these are
discernible in the jurisprudence. The note also considers whether Haxton could have been
decided on the basis that a defendant should not profit from its own wrongdoing.
THE DECISION
Facts
The widow of an electrician brought an action for damages on behalf of his estate
his dependant under the Fatal Accidents Act 1976 (FAA). Where there is a cause
of action1vested in the deceased before his death, the LRMPA operates to
transfer this to his estate. The FAA creates a new cause of action arising upon
death.2It provides for three heads of damage: a conventional standard sum to
represent damages for bereavement; a claim for loss of income and services that
the deceased would have provided to his dependants (‘the dependency claim’);
and funeral expenses. It modifies the historical common law rule3that the ‘death
of a human being cannot be complained of as an injury.’4The amount of the
dependency claim is determined by whichever is the shorter between the
deceased’s pre-injury life expectancy and his dependant’s life expectancy.
Mr Haxton, the deceased, was tortiously exposed to asbestos dust during
the course of his employment with the defendant. As a result, he developed
mesothelioma – a fatal cancer of the lungs that usually leads to death within
months of the onset of symptoms. However, before trial, the claimant herself was
diagnosed with mesothelioma due to secondary exposure to asbestos. She had
washed her husband’s work clothes and had thereby wrongfully been exposed to
*12 King’s Bench Walk Chambers. With thanks to Harry Steinberg and Rob Weir QC for starting the
discussion; and to Glyn Ayres and Jamie Holmes for their comments on the draft.
1 Save for defamation actions and claims for bereavement damages: Law Reform (Miscellaneous
Provisions) Act 1934, s 1.
2Reader vMolesworths Bright Clegg [2007] 1 WLR 1082.
3Baker vBolton (1808) 1 Camp 493.
4The Amerika [1917] AC 38 (HL), 42.
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What does it mean to suffer loss? Haxton vPhilips Electronics
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
994 (2014) 77(6) MLR 983–1008

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