Fleet v Fleet

In assessing damages for mesothelioma, general damages for pain, suffering and loss of amenity should reflect the quality of life during the illness, not merely its duration. Future earnings and dependency awards require a realistic assessment of probable earnings, work prospects and individual risks, rather than mechanical reliance on averages. Where actuarial reduction factors do not cover the claimant’s age, the court should assess the relevant risks from the evidence. A conventional deduction for gratuitous care may be displaced where the care is unusually skilled. A claim for special care by a spouse is not automatic, but may be justified by the particular future care needs of the surviving spouse. Courts may assess ordinary domestic services by reference to experience and market knowledge without expert evidence.

This was an assessment of damages following Michael Fleet’s death from malignant mesothelioma. The claimant, his widow and executrix, sought damages under several heads, including pain, suffering and loss of amenity, lost earnings, dependency, care and services.

Because only an afternoon was available, the court determined the issues argued before it that might assist settlement. Any unresolved matters were to be referred back to the Senior Master. The central questions concerned the appropriate valuation of the deceased’s suffering, the probable earnings and employment risks relevant to dependency calculations, deductions for care, and the availability and amount of special-care and services-dependency awards.

1. General damages. The quality of life over the period of illness was the critical consideration, rather than the duration of fatal symptoms alone. The severe respiratory disability, uncontrolled pain and painful and useless right arm justified an award of £77,500.
2. Past and future earnings. The deceased’s probable pre-tax earnings were assessed from the established accounts and employment evidence. A projected increase had to remain a fair estimate rather than assume a rate unsupported by the evidence. The court assessed average pre-tax earnings to trial at £29,000 and the future multiplicand to retirement at £32,000 per annum, allowing for possible improved rates, productivity and supervisory work without treating the highest possible earnings as probable.
3. Actuarial discount. The Ogden Tables did not provide reduction factors for the relevant older ages because individual circumstances were particularly important. The deceased’s long employment history, good reputation and his employer’s sound business meant that significant unemployment risk could safely be put aside. A reduction of no more than 10 per cent was appropriate for other risks such as injury and illness.
4. Care and services. The conventional 25 per cent deduction for gratuitous care was appropriate. The claim for special care was not an automatic extension of the parental-care principle to spouses, but the deceased’s age relative to his wife and the care he would probably have provided justified £2,500. The services dependency claim was assessed at £1,500 per annum. Expert evidence was unnecessary for ordinary domestic and gardening work where the court could use its experience and knowledge of market rates.
5. The findings were intended to facilitate resolution. Any outstanding issues that could not be agreed were to be referred back to the Senior Master for final assessment.

First-instance assessment of damages. The judgment states that unresolved issues were to be referred back to the Senior Master.