FATAL ACCIDENT DAMAGES: A RECENT CASE: LIFE EXPECTANCY; DAMAGES FOR LOSS OF SERVICES & LOSS OF CARE & ATTENTION

In Magill v Panel Systems (DB Limited) [2017] EWHC 1517 (QB) His Honour Judge Gosnell (sitting as a Judge of the High Court) considered some key issues relating to fatal accident damages.

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THE CASE

The claimant was the widow whose husband died from a cardiac arrest.   It was successfully argued that that the presence of mesothelioma prevented the deceased from having a coronary artery bypass graft which would have prevented the cardiac arrest.

THE ISSUES THAT THE JUDGE HAD TO DETERMINE

(1) How life expectancy should be assessed;

(2) Whether there was a claim for services provided by the deceased.

(3) Whether there was a claim for “loss of partner’s care and attention”.

THE CORRECT METHOD OF ASSESSING LIFE EXPECTANCY

The judge was faced with an issue as to appropriate life expectancy.
“It perhaps not unusual to have disputes about life expectancy in disease claims but it is unusual to have a debate about the appropriate methodology to be used. Counsel for the claimant points out that the deceased was born on 8th July 1956 and his life expectancy would be 25.06 years according to Table 1 of the Ogden Tables using 0% discount rate. Using 2014 ONS data the figure would be 25.5 years which is the most accurate current statistical information
  1. In his report dated December 2015 Dr Witte adopts what might be termed as the conventional approach in personal injury litigation when there are co-morbidities which might mean that it would be appropriate to deviate from the life expectancy of the population. He reduces the deceased’s expectation of life by two years because of his coronary artery disease, a further two years because of his diabetes and in his 2016 report he agreed to deduct a further two years to reflect the mild left ventricular failure. This would make the deceased’s life expectancy 19.5 years. Professor Channer does not criticise these individual discounts (although he may well have chosen to do so) but would prefer to approach the problem from a completely different perspective.
  2. Professor Channer is critical of the method of discounting from the average population as used by Dr Witte which he describes as a retrospective assessment. It fails to take into account geographical and differences due to social class; it fails to consider the increased risk of cumulative causes; it does not distinguish smokers from non-smokers and does not allow for the change of circumstances (and therefore risk) over time. Professor Channer espouses a prospective assessment in which the risk per year of a fatal event is calculated and the time taken to reach a 51% chance of the event taking place is taken as the average survival. Many epidemiological studies have calculated the risk of death in association with individual risk factors and when they are combined. It is therefore possible to estimate the annual risk of a fatal and non-fatal event by multiplying the individualised risk against the background risk in the population. It is also possible to estimate survival from long-term follow up of large cohorts of patients with a particular disease process.
  3. In the case of the deceased Professor Channer says there are data on survival after triple bypass surgery in association with impaired left ventricular function, and in the presence of diabetes and atrial fibrillation and so it is possible to predict average survival from those data sets. The data from coronary artery bypass surgery suggest the mortality rate is 4% per annum [2]. Patients with diabetes do better with CABG than without but still have double the mortality of those without diabetes[3]. Generally, the lower the ejection fraction measured on echocardiography the higher the annual mortality [4]. He also relied on the Velazquez study that I have referred to earlier which showed a mortality at 6 years of follow up after CABG of over 40%. On this basis Professor Channer calculates that if the deceased had not developed mesothelioma when he did he would have survived for about eight years after bypass surgery in 2015.
  4. I had some assistance on this issue in the form of an expert report from Mr Chinu Patel who is a consulting actuary and a member of the Ogden Working Party. Mr Patel explained the general approach of the UK courts in dealing with impairments to life expectancy. He also explains how the Ogden Tables work by providing multipliers based on the mortality experience of the general UK population as a whole. These are not in dispute in this case and well understood by both counsel. If a Claimant is atypical and the court decides that he has a reduced life expectancy and this is expressed as a reduction in normal life expectancy, then the adjustments to the standard multipliers are relatively easy and described in the notes to the Ogden Tables. He describes Professor Channer’s approach as an absolute assessment in that it is not relative to that of a reference population. He was unable to find anything in the Ogden Tables to enable a reference point to connect to Professor Channer’s opinion to the underlying base mortality used in the Ogden Tables. In essence, the methodology used by Professor Channer cannot be combined with the methodology in the Ogden Tables although Mr Patel accepts that the multiplier could be arrived at by a different method outside the Tables. Whilst I accept this is a potential difficulty if I accept Professor Channer’s views it is not an insurmountable problem and this alone would not persuade me to reject his views.
  5. I also had some assistance on this issue from Dr Robin Rudd the consultant chest physician. He accepted that on the issue of life expectancy he had deferred to Dr Witte in relation to the cardiac components of the assessment. He accepted that he had prospectively assessed the deceased actual life expectancy as result of the contraction of mesothelioma at between 3 – 9 months. He said that when life expectancy is very short the best way to approach it is by using the median survival period for patients with that condition coupled with any particular factors that might affect the individual patient. He accepted that Professor Channer’s method was a legitimate way to approach life expectancy for someone who had the characteristics of the study which was being used to fix the median. His view was that where there were multiple co-morbidities it was more difficult to find a study which reasonably matched the patient under consideration and it was therefore more sensible to use the retrospective method and to make deductions from the normal life expectancy to reflect each factor. I gave him an example of dealing with a mesothelioma patient who smoked and he confirmed that he would deal with his theoretical life expectancy absent mesothelioma by the retrospective method making a deduction to reflect the additional health risks appropriate for patients who smoke.
  6. Whilst I accept from what the experts have told me that both the prospective and retrospective methods of assessment are scientifically legitimate I reach the view that the prospective method is very much dependant on finding data or studies which accurately match the patient concerned. Where this is difficult, the retrospective method would appear to be more appropriate method, accepting as I do that it is very rough and ready method depending mainly on the clinical judgment of the physician making the assessment. The issue in this case then is whether the data relied on by Professor Channer are a close enough match to the deceased to mean that the prospective method of assessment is likely to be more accurate than the retrospective method…
  1. In my judgment, the prospective method of life expectancy can only be preferable to the retrospective method where the data or studies used to make the assessment are as near a fit as possible to the actual medical condition of the Claimant or deceased being assessed. In this case the constellation of the deceased’s symptoms and co-morbidities mean that it is impossible to approach the prospective method of assessment with any real confidence given the material I have considered in the preceding paragraphs of this judgment. The retrospective method of assessment is a rough and ready approach based not upon scientific study but on clinical judgment of experienced and qualified practitioners. I doubt it is a method they use in their clinical practice but it is a genuine attempt to answer a question which lawyers put to them to assist the court in a way it can understand. In this case I prefer the retrospective method of assessment as put forward by Dr Witte for the reasons I have expressed.
  2. Counsel for the Claimant submitted that it would be open to me to make a finding of life expectancy which is somewhere between the two estimates. This is tempting as my gut reaction is that Dr Witte’s estimate may be too optimistic whereas Professor Channer’s may be too pessimistic.I have however chosen a method of assessment which is reliant on the clinical experience and judgment of a properly qualified clinician. I have no experience or expertise  in this area and I believe it would be wrong for me to substitute my view for his where I have no sound basis for doing so. I accordingly find that the deceased’s life expectancy, but for the mesothelioma would have been 19.5 years from the date of trial.
  3. Counsel for the Defendant addressed me briefly about the application of the various tables when dealing with a fixed period of life expectancy but I got the impression that this would only be an issue if I preferred Professor Channer’s view about life expectancy. On this basis, I will merely say that I prefer the use of Table 1 of the Ogden Tables as adjusted for the reasons expressed by Mr Justice Cranston in paragraphs 40-43 of his judgment in Smith v LC Windows Fashions Ltd [2009] EWHC 1532 (QB).

 

THE CLAIM FOR SERVICES PROVIDED BY THE DECEASED

The judge found that the evidence did not support a claim for loss of services provided by the deceased.

“The Claimant makes a claim for both her past and future dependency on the deceased’s services and the Defendant denies that the Claimant is entitled to succeed on the facts of this case. In the schedule of special damages the claim is expressed as follows:
“As a result of her husband’s death, the Claimant has required assistance with tasks such as gardening, DIY and decorating. A nominal figure of £500 per year is claimed from the date of death until trial”
A further claim was made following trial for the same claim at the same annual amount for a period of 15 years.
    1. In his first witness statement dated 18th July 2015 the deceased stated:
We also have a nice garden at the front and a large garden at the rear. I mainly take care of this and mow the lawn and look after the plants but I don’t know how I am going to do this now”
This suggests he had been mowing the lawn up to his mesothelioma diagnosis. His statement also suggested that he and the Claimant were planning on doing quite a lot of decorating and DIY in their new home. The Claimant had to concede however that prior to the mesothelioma diagnosis she was giving him a lot of personal care, up to 35 hours per week. She said “he could do a few things but very, very slowly” and she also agreed that he was incapable of decorating the house at this stage. Whilst I accept the deceased did mow the lawn at some point in the past I am not convinced he was doing this before his diagnosis of mesothelioma. The two questionnaires he completed in 2012 and 2014 reveal extensive disability such that the Claimant was awarded a carer’s allowance. In January 2014, he was asked if he could safely move 50 metres (page 715 of the trial bundle). His reply was:
“I cannot go any distance unless I take it slowly and stop for rests. Any kind of effort can bring on shortness of breath and chest pain. I do need a walking stick sometimes”
He was then asked about going up or down two steps and his reply was:
“I can manage two steps as long as I take it slowly. I can go upstairs ok but I usually have to stop and catch my breath a few times”
  1. In my view these answers are not consistent with a man who is carrying out DIY decorating and gardening at home. The impression I got was that the Claimant was acting as the deceased’s full time carer before the diagnosis of mesothelioma and that she carried on doing just the same afterwards, albeit with the need to devote more time to his complicated medication regime. The burden of proof is on the Claimant and I am not satisfied on balance of probability that she has lost the benefit of the deceased services in any meaningful way as a consequence of his death.”

 

LOSS OF PARTNER’S CARE AND ATTENTION

The judge considered the issue of whether there is, in fact, a claim in law for “loss of partner’s care and attention”.  His view was that the legal basis of this head of damages has been misunderstood and related to the loss of the convenience of having services provided by a family member. However on the facts of this case no such loss arose in any event.

    1. Loss of partner’s care and attention
This claim is expressed simply in the schedule of special damages as follows:
“It is claimed that compensation should be awarded for loss of partner’s care and attention and an appropriate award under this heading is £4500 see Bath v Highgate [2004] EWHC 707 (Ch)”
This is uprated in the schedule to £6500.27 by application of the Retail Prices Index since 2004. Counsel for the Claimant seeks however £5000 in his skeleton argument for the purposes of the trial. Leading Counsel for the Defendant relies on the authority of Mosson v Spousal (London) Ltd[2015] EWHC and contends that this is what the bereavement award is for and no further award should be made. Counsel for the Claimant suggests that the decision in Mosson is an outlier which appears not to have been followed perhaps because of the curious way in which it was argued to be merited in that case.
    1. This type of claim found its origins in Regan v Williamson [1976] 1 W.L.R. 305 where it was held that, in determining the pecuniary value to be put on the services of the deceased, acknowledgement should be given to the constant attendance of a mother on her children, and accordingly the value placed on such services should not be limited to a mere computation of the cost of services of a housekeeper less the cost of the deceased wife’s maintenance. So, too in Mehmet v Perry [1977] 2 All E.R. 529 an additional sum was awarded because “the children have lost the attention of their mother and …now have only one parent to look after them instead of two”. In the same case the husband was awarded a modest sum because he had lost the care and attention of his wife.
    2. The development of this principle to widows and widowers in addition to children was recognised by Mr Justice Hamblen (as the then was) in Beesley v New Century Group Ltd [2008] EWHC 3033 (QB):
83. In my judgment the principle of making awards for loss of intangible benefits is now well established – see Kemp and Kemp [29-052]. It reflects the fact that services may be provided by a mother, wife, father or husband over and above that which may be provided by a paid replacement. In principle there is no reason for differentiating between the position of children and spouses in connection with the availability of such awards.
84. In relation to services provided by a husband or father the position is summarised in Kemp and Kemp at p29074 as follows:

‘Awards of this kind have also been made to a widow or child for the loss of services provided by a deceased husband or father. There is no reason in principle why such awards should not be made where the services provided by a husband or father justify it on the facts. Such awards ought to be in proportion to the more conventional awards already noted for wives/mothers. This will mean that they will be lower in the average claim where the deceased husband/father was the family breadwinner.’

85. The present case is a good illustration of why it may be appropriate to make such an award to a widow. So, for example, there are considerable advantages in having jobs around the house and garden done by a husband at his own time and convenience rather than having to go out to find and choose commercial providers, and to have to work around the hours that suit them for the work in question.
    1. Whilst recognising that awards of this nature have become commonplace in fatal accident claims Mr Justice Garnham in Mosson questioned the jurisprudential foundation for this type of claim:
“71. I have had careful regard to these previous cases, in particular to the reasoning of Hamblen J and Mackay J. I take on board the fact that the making of awards of this sort has become increasingly commonplace. However I regret to say that, for two reasons, I find myself in disagreement with the conclusions of the other judges of this Court to whom I have referred. I can see no proper jurisprudential foundation for this claim.
72. First, damages for personal injuries are intended, so far as money can achieve it, to put the claimant in the position he or she would have been in had the tort not occurred. But that is an art not a science, especially in the case of claims for future loss. There can be no precise equivalence in money terms of every loss that flows from an injury or a death. The Court fixes on a sum, often by reference to commercial costs, but recognises that that is unlikely to be a precise reflection of all the future consequences of the event. In the case of claims for services, the award is the Court’s best estimate of the value, rather than the cost, of the services lost.
73. I have already made an award in respect of the services the deceased would have provided his family had he not contracted mesothelioma. I have done so by seeking to estimate the cost of providing commercially what would otherwise have been provided by the deceased. Obtaining services commercially, rather than from a member of the family, has both advantages and disadvantages. The disadvantages are those to which Mr Steinberg refers. But since few individuals, even caretakers, possess all the skills of all trades people, there are also advantages in having work carried out commercially. The work can be provided by specialist contractors at times that are convenient to the claimant; it may be of a better quality; its provision does not necessarily detract from other activities the family may wish to carry out. The award I have already made recognises both the advantages and disadvantages of having services provided commercially rather than by the deceased.
74. In my judgment, there is no room here for an additional award for the loss of intangible benefits over and above the claim for the lost services.
75. Second, what the claimant seeks is further financial compensation for the inconvenience of having to pay someone to do what her husband would have done voluntarily. In other words, she seeks financial compensation for what is a non-financial loss consequent upon her husband’s death. That, it seems to me, is a claim of the sort which bereavement damages were intended to cover.”
  1. I recognise that these claims have become commonplace but I find myself in agreement with Mr Justice Garnham for the same reasons he gives. My personal view on the jurisprudential basis of this type of claim is however irrelevant in this case. This is a case where the deceased was unwell at the time he was diagnosed with mesothelioma. He was receiving personal care from the Claimant for at least 35 hours per week as he was too unwell to manage without that care. I have already found that his medical condition was such that he was unable to provide services such as DIY, gardening and decorating by 2014 and made no award for the loss of those services. As a consequence of this finding, even if a claim pursuant to Regan v Williamson could be validly made it could not be justified on the facts of this case as the deceased would not have been fit enough to do the various “jobs round the house” which formed the factual foundation for the successful claim made by the Claimant in Beesley v New Century Group Ltd. I have no doubt that the Claimant has lost the care and attention of the deceased in the emotional sense and the loss of that cannot be minimised but it does not sound in additional damages because this is exactly the loss that the bereavement award (modest though it is) is intended to compensate for.
  2. Counsel for the Claimant felt that Mr Justice Garnham had been led into error by claimant’s counsel in Mosson expressing the claim as “loss of intangible benefits” rather than loss of love and affection. It is clear however from my analysis above that the genesis of this claim is based upon the perceived advantages of having a service performed by a member of the family rather than a commercial provider (and compensation for that loss). If a claim was in fact put forward, simply for loss of love and affection, in my view it would fail for being encompassed in the bereavement award whichever school of thought prevails about claims pursuant to Regan v Williamson.
  3. For the reasons I have expressed I make no award for this head of loss.”
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