FATAL ACCIDENT DAMAGES CONSIDERED: BLAKE -v- MAD MAX LIMITED

In Blake v Mad Max Ltd  [2018] EWHC 2134 (QB) Peter Marquand (sitting as a High Court Judge) considered several disputed aspects of damages in a fatal claim. The judgment provides a useful guide to general damages in mesothelioma cases, it confirms the view that damages cannot be awarded for a “wake” and provides a useful guide to some issues that are often disputed.

THE CASE

Mr Blake died from mesothelioma at the age of 61. His widow brought an action. Liability was agreed, the judge had to decide a number of disputed issues relating to damages.

DAMAGES FOR PAIN SUFFERING AND LOSS OF AMENITY

The judge was presented with a number of cases. He concluded that the correct award was £90,000.

  1. 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.

THE COST OF A WAKE WAS NOT RECOVERABLE

The judge awarded damages for the funeral, but not the cost of the wake.

  1. The legislation permits recovery of ‘funeral expenses’. In Gammell the distinction was drawn between expenses consequent upon the death and expenses derived from the funeral itself. In Grant, the judge decided as there was no invariable practice of providing refreshments Parliament could not have intended such refreshments to come within ‘funeral expenses’. I do not know about whether such practices are common or uncommon nor what the practices of various faith groups might be in relation to funeral arrangements. Gammell is clear in drawing the distinction between costs that are consequent upon the death and those attributable to the funeral. The cost of a wake or reception is not directly attributable to (or consequent upon) the funeral and therefore I find that the cost of the wake is not recoverable from the Defendant.

CARE PROVIDED BY THE WIDOW DURING MR BLAKE’S ILLNESS

The judge considered the award that should for the care provided by Mr Blake’s widow during his illness and up to his death.

  1. Mr Morton did not cross-examine the Claimant on the amount of care that she provided to Mr Blake. His submission on the behalf of the Defendant was however, that the hours claimed were estimated, there was an overlap with activities the Claimant would have carried out in any event and they were unrealistic. In particular, he submitted that the 24-hour care in the fifth period was unrealistic and there was no discount provided for the week that Mr Blake spent in a hospice (which was during the fifth period).
  2. The Claimant struck me as an honest and reliable witness, as I have already stated. In her oral evidence she did not seek to exaggerate her claim. In her witness statement the Claimant refers to the amount of care that she provided to be ‘estimates’ but that is the nature of this type of claim. In the absence of cross examination, other evidence and on my assessment that the claims made are not unreasonable on the face of it, I accept the Claimant’s evidence. In reaching this conclusion, I bear in mind that if it was apparent that the number of hours claimed were clearly excessive then that would be grounds for reducing the hours claimed. I also have borne in mind that the compensation is for care provided and not just activities that the Claimant would have carried out in any event or by virtue of her simply being present with Mr Blake. I have considered carefully the final two-month period and the fact that Mr Blake was admitted to a hospice supports the claim for 24-hour care by the Claimant, indicating the level of support that he required. However, as he was in a hospice for a week, the Claimant would not have provided care and 7 days should therefore be deducted from this element of the claim.
  3. There is no dispute over the hourly rate nor over the discount to be applied as the care was provided gratuitously. An argument advanced on the Claimant’s behalf that there should be a reduced discount in this particular case fell away as the Claimant in evidence confirmed that her employer had continued to pay her wages during the time that she took off in order to care for Mr Blake. The hourly rate was agreed at £9.24 and the discount at 25% in those circumstances.

 

THE VALUE OF SERVICES PROVIDED BY MR BLAKE

This was accepted at £750.00 a year.

  1. In her witness statement the Claimant estimated a cost of £750 per year on average to use outside contractors to do work that would otherwise have been done by Mr Blake. The Claimant has had a kitchen installed and a new boiler and her evidence was that Mr Blake would have done that himself. Mrs Blake will need to engage contractors to undertake bigger jobs throughout the house. The Defendant agreed the sum of £432 that Mrs Blake had to spend in order to have fencing erected, again a job that Mr Blake would have done himself, had he been alive.
  2. The Claimant was not cross-examined on her estimate of the value of services provided. Mr Morton’s submission was that these were again the Claimant’s estimates and not the value of the services provided by the deceased. I repeat the comments that I have made above on estimating in relation to the care claim. The sums claimed are not manifestly excessive and the commercial cost of erecting the fencing being only one activity in a year, tends to support the amount claimed by Mrs Blake as an estimate. As a cross check, dividing the total sum claimed by the hourly rate for care would amount to approximately 81 hours per annum which is just over one and a half hours per weekend. The commercial cost of providing some of the services would in any case probably be over £9.24 per hour leading to a lower number of hours per annum. Given the Claimant’s evidence about the extent of services provided by Mr Blake, an hour or hour and a half per weekend is a very reasonable estimate and I accept the Claimant’s estimate of the commercial value of the services provided at £750 per annum in respect of past and future service

MR BLAKE’S RETIREMENT AGE

This was accepted as aged 70.

  1. There is no indication within Prof Maskell’s report where he obtained the age of 68 from as a retirement figure. Mr Blake had no past medical history of note and the Claimant’s evidence was that he was fit and active. I do not find that Prof Maskell was providing a medical reason why the Claimant could not work beyond the age of 68. Mr Morton’s predominant submission was that a man of 70 would not have been able to move rolls of carpet and carry out the physical activities required. There is no evidence either way about whether that would have been possible, although I accept some force in Mr Morton’s argument. However, I accept the evidence of the Claimant that it was Mr Blake’s intention to retire at the age of 70 and I find that this is the age at which probably he would have ceased work. If there is a risk of overcompensation it is offset in any event by using the average for loss of earnings and another reason to use the average rather than the final year of Mr Blake’s earnings for the purposes of calculation.

NO SEPARATE AWARD FOR SERVICING A CAR

There appears to have been some confusion in relation to the claim for a car.

In the schedule of loss, the Claimant sought the cost of a new car in the sum of £12,380.20. At trial, the claim for the capital cost of the car was abandoned and Mr Hogarth sought the sum of £2,000 instead representing, he submitted, the cost of servicing a car, which is an activity Mr Blake undertook. Mr Morton’s submissions were that this was double recovery and covered by the loss of services already claimed. No evidence of the cost of servicing a vehicle was adduced. The Claimant’s witness statement at paragraph 53, when describing loss of services, includes Mr Blake’s provision of car maintenance. The Claimant goes on at paragraph 54 to provide her estimate of £750 per annum to replace the services that were otherwise provided by Mr Blake. Paragraph 71 of the Claimant’s statement details Mr Blake insisting that the Claimant purchase a new car for the benefit of the three-year warranty and service plan. The Claimant’s evidence is clear in that she incorporated within the £750 the loss of services for car maintenance. I reject the separate claim for £2,000 as it would be double recovery.

REDUCTION OF WIDOW’S INCOME BECAUSE OF HER FATHER’S ILLNESS

The widow’s income is a relevant factor in the calculation of the financial dependency calculation.  Her income had decreased so she could look after her father.  This was not a loss arising from the death, but was a factor the court was asked to take into account.

  1. There remains one finding to be made to enable the parties to calculate the future loss of dependency. In the course of her oral evidence, the Claimant confirmed that after Mr Blake’s death she returned to her work. However, she has now decreased the number of hours that she works per week by five hours to care for her father in Cornwall. She now works 27 hours per week as opposed to 32 hours per week. The Claimant’s father has a long-term illness and the Claimant is providing care for him. The Claimant’s father is 82 years old and the Claimant understandably said that her father was important to her but that when he no longer required her help she would increase her hours again. Mr Morton submitted that I should provide for a reduced income for the Claimant for the next five years. Mr Hogarth made no submissions on this point. I have no evidence on the Claimant’s father’s life expectancy. Doing the best I can in the circumstances I find that the Claimant will work at a reduced level of earnings for a total period of five years.

LOSS OF INTANGIBLE SERVICES: AWARDED AT £2,500

There is an ongoing debate, in the cases, as to whether the courts should award something for loss of “intangible services”.   The judge made an award in this case.

The Claimant’s witness statement deals only with the commercial costs of replacing the services Mr Blake provided. The oral evidence from the Claimant was that services, over and above those that could be quantified commercially, had been provided by Mr Blake: making the bed, helping with food preparation and driving her to various functions and activities. I can also infer from her witness statement that the Claimant will have to spend time organising the commercial provision of replacement services, which is something that she would not otherwise have done. On the basis that this is a loss over and above the commercial cost and not adequately compensated for by the claimed loss of services that I have already analysed I make an award, as this is consistent with the FAA and the principle in Regan and the subsequent authorities (except Mosson and those that follow it). It is not double recovery. The figure is not capable of scientific analysis but considering the evidence and other similar awards, I award the sum of £2,500
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