Mosson v Spousal (London) Ltd

Contributory negligence in an asbestos claim must be proved by the defendant. It requires evidence not only of self-employment and exposure, but also of a negligent failure by the claimant and causative exposure. Evidence of the actual degree and circumstances of exposure is essential to assessing breach.

Funeral expenses must be reasonable in all the circumstances. Probate expenses are not recoverable under the Law Reform (Miscellaneous Provisions) Act 1934 without a proper legal basis. Loss of services is valued by the court’s best estimate of the value or commercial replacement cost of the services lost. A separate award for intangible benefits is not a recognised head of loss, being either already reflected in the services award or part of bereavement.

The claimant, the widow and dependant of the deceased, brought a claim on behalf of his estate following his death from malignant mesothelioma. The defendant admitted primary liability but alleged that the deceased had contributed to his injury by negligently exposing himself to asbestos while self-employed.

The parties agreed most heads of loss, leaving issues concerning contributory negligence, general damages, funeral and probate expenses, sick pay, bereavement, dependency, services and alleged intangible benefits. The court therefore determined the disputed principles and figures at first instance.

1. Contributory negligence. The defendant bore the burden of proving that the deceased was self-employed, was exposed to asbestos during that work, acted in breach of the duty to take reasonable care, and caused harm in the relevant sense. Although self-employment and asbestos exposure during work for Stuarts were established, there was insufficient evidence of the degree and circumstances of exposure. Applying the approach in Williams v University of Birmingham [2011] EWCA Civ 1242, the defendant therefore failed to prove breach and causation. The allegation was rejected.
2. If contributory negligence had been established, the reduction would have required consideration of the claimant’s responsibility and the blameworthiness of his conduct compared with that of the defendant, as stated in Berol Badger v MOD [2005] EWHC 2941. This was not required for the decision.
3. Damages. General damages for pain, suffering and loss of amenity were assessed at £85,000. The costs of a wake, mourning clothes and a memorial bench were not reasonable funeral expenses. The court followed the established treatment of wake expenses in Gammell v Wilson [1982] AC 27, and disallowed probate expenses because no legal basis for recovery was shown under the Law Reform (Miscellaneous Provisions) Act 1934.
4. Sick pay was recoverable as damages, subject to the claimant holding the sum on trust for the former employers. Bereavement damages were awarded at the statutory figure of £12,980. Dependency calculations proceeded on the basis that the deceased would probably have worked until age 70. Loss of services was assessed at £1,500 per year with a multiplier of five, producing £7,500.
5. Intangible benefits. The court declined to award additional damages for the inconvenience or advantages lost through replacing a spouse’s services commercially. The services award already represented the value of the services lost, while non-financial consequences of death fell within bereavement damages. The court expressly disagreed with the reasoning in Beesley v New Century Group Ltd [2008] EWHC 3033 (QB). No award was made under this head.