Drake v Starkey

A claimant may recover the reasonable value of gratuitous palliative care provided by a charitable hospice where the care is a reasonably necessary consequence of tortiously caused injury or disease. The claim is treated as compensation for the carer and is held on trust for, or paid directly to, the hospice. There is no principled distinction between care supplied by a charitable foundation and care supplied by family members, friends or other care institutions. A dependent under the Fatal Accidents Act 1976 must separately establish a reasonable expectation of pecuniary benefit arising from the family relationship and that the benefit would have been received but for the death.

The deceased’s executrices brought claims arising from his asbestos-related mesothelioma and death. Liability had already been established, and this judgment assessed two outstanding heads of damage.

The first issue was whether the estate could recover the reasonable cost of gratuitous home-based and inpatient palliative care supplied by St Joseph’s Hospice, a charitable foundation, and whether any award should be held for the hospice or for its donors. The second issue concerned dependency claims by the deceased’s daughters, grandchildren and great-grandchildren under the Fatal Accidents Act 1976.

1. Hospice care. The estate could recover the reasonable value of gratuitous palliative care supplied by St Joseph’s Hospice. The care was reasonably necessary, directly resulted from the deceased’s tortiously caused terminal illness, and was comparable in substance to care provided by family members, friends or residential institutions. The fact that the hospice was charitable, imposed no charge and operated without a contractual obligation to provide care did not prevent recovery.
2. The governing principle was that the injured claimant recovers the reasonable value of gratuitous services rendered by way of voluntary care as compensation for the carer. Any award was therefore held on trust for, or paid directly to, St Joseph’s as the carer, rather than for the private donors whose donations helped fund the hospice. The claim was not a new head of loss and did not create a material floodgates concern.
3. The claimed sum of £10,021 was reasonable. The defendant was directed to pay that sum, with interest from 7 March 2007 until judgment or payment, directly to St Joseph’s within fourteen days and to provide the estate with a receipt.
4. Dependency. Under section 1 of the Fatal Accidents Act 1976, read with section 3, each dependent had to prove a separate loss proportionate to the deceased’s death. The applicable test was whether the dependent reasonably expected to receive a pecuniary benefit arising from the family relationship and would have received it but for the death. Regular gifts and payments could constitute dependency even where they were presented within ordinary family routines or described informally as payment for domestic assistance.
5. The court accepted the evidence of regular payments and gifts to the daughters, a grandson and the other grandchildren and great-grandchildren. Applying the agreed multipliers, the total dependency award was £14,604. The parties were directed to agree the necessary order.

First-instance assessment of damages following judgment entered for the claims by order of Master Eastman on 20 July 2009.