Blake v Mad Max Ltd (Rev 1)

Damages following a fatal asbestos-related illness must reflect the evidence for each recoverable head of loss. Funeral expenses do not include the cost of a wake or reception. Gratuitous care is recoverable on reasonable evidence, subject to deductions for periods when care was not provided. Loss of services may be assessed by a fair estimate where precise calculation is impracticable.

A separate award may be made for pecuniary loss over and above the commercial cost of replacement services, including the extra time required to arrange those services. Such an award does not compensate for love, affection or companionship, and must not duplicate a services award.

The claimant, as executrix of the estate of Paul Blake and as his dependant, brought claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. Liability for Mr Blake’s mesothelioma had already been established. The remaining issues concerned the quantification and recoverability of various heads of loss.

The court determined general damages, funeral expenses, gratuitous care, lost household services, earnings and retirement age, future dependency, vehicle servicing, and loss of intangible benefits associated with the deceased’s services as a spouse.

1. The court awarded £90,000 for pain, suffering and loss of amenity. The assessment was based on the duration and severity of the illness, the symptoms, treatment and the Judicial College Guidelines.

2. Under section 1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934 and section 3(5) of the Fatal Accidents Act 1976, funeral expenses do not include refreshments provided at a wake or reception. The cost was not directly attributable to the funeral. The court followed the approach in Gammell v Wilson and Swift Company Limited and applied the reasoning in Grant v Secretary of State for Transport [2017] EWHC 1663 (QB).

3. The claimant’s evidence of gratuitous care was accepted. The agreed hourly rate and 25% discount were applied, but seven days were deducted for the period when Mr Blake was in a hospice.

4. The value of Mr Blake’s household services was assessed at £750 per year. A reasonable estimate was permissible where the evidence was credible and the claimed sum was not manifestly excessive. A separate £2,000 claim for car servicing was rejected as double recovery because car maintenance was included in the services estimate.

5. Past and future earnings were calculated by reference to the three-year average of £14,174. The court accepted that Mr Blake probably intended to work until age 70. The claimant’s reduced working hours for care of her father were allowed for five years in calculating future dependency.

6. A £2,500 award was made for loss over and above the commercial cost of replacement services. The award reflected the extra time and inconvenience involved in arranging replacement services and services which could not be fully costed. It did not compensate for love, affection or companionship and did not constitute double recovery. The court preferred the approach in Regan v Williamson, [1976] 1 WLR 305, Beasley v New Century Group Limited [2008] EWHC 3033 (QB) and Grant v Secretary of State for Transport [2017] EWHC 1663 (QB) to the reasoning in Mosson v Spousal (London) Ltd [2015] EWHC 53 (QB).

The parties were directed to complete their calculations and agree a final order.

First-instance assessment of damages following judgment for the claimant on liability on 15 March 2018. The liability judgment citation was not stated in the judgment.