James Fitzpatrick v Ministry of Justice & Anor

In assessing damages after default judgment, the court must scrutinise every head of loss and award only what is justified by evidence and law. Unchallenged evidence is not automatically accepted where it conflicts with other material.

Gratuitous care is valued by the rate that most closely represents the proved loss. The usual deduction from the relevant care rate may require adjustment where the conventional percentage no longer reflects taxation and associated costs. Losses arising from inability to perform domestic work must be distinguished from replacement costs and services provided to others.

A living claimant with mesothelioma cannot recover future loss of services after death in the present proceedings, but the claim may be adjourned with permission to restore. A widow’s pension does not require a deduction from a lost-years award on the evidence and authorities considered.

The claimant brought a personal injury claim for peritoneal mesothelioma following alleged asbestos exposure during childhood at premises associated with the Ministry of Justice and during employment at Customs House. Liability was not disputed. Default judgment had been entered against the Home Office, and the hearing concerned assessment of damages against that defendant. The claim against the Ministry of Justice had been stayed.

The court considered general damages, gratuitous care, domestic and other services, childcare, travel, aids and equipment, lost years, the effect of a prospective widow’s pension, and future loss of services and medical expenses. The central issues were the appropriate evidential approach to quantum and whether the various claimed losses were legally recoverable.

1. Assessment of damages. The court was not required to rubber-stamp the claim merely because the defendant was absent. The claimant retained the burden of proving each component of loss to the ordinary civil standard. The court had to scrutinise whether each item was legally justified, supported by evidence and realistic. The claimant’s evidence was accepted where unchallenged, subject to apparent inconsistency with other evidence.
2. General damages. The Judicial College Guidelines placed the claim within the mesothelioma bracket. The bracket was uprated for inflation, and the award was assessed at its upper end having regard to pain, invasive treatment, chemotherapy, surgery, age, continuing anxiety and reduced life expectancy. General damages for pain, suffering and loss of amenity were assessed at £130,000.
3. Care and services. Gratuitous care was recoverable for the claimant’s wife, subject to the trust principle. The appropriate rate was the rate most closely representing the proved loss. The evidence did not justify local Watford professional-care rates, so the usual NJC spinal 2 rate was used. The conventional 25% deduction was reduced to 20% because the lower basic rate involved a materially lower marginal tax burden. The court distinguished between lost amenity from being unable to undertake DIY, replacement costs for work the claimant would otherwise have done himself, and services formerly provided to others.
4. Lost years. The claimant was entitled in principle to recover probable earnings during the period by which his life was shortened. The expert life-expectancy evidence supported the multiplier used, with a 50% allowance for living expenses. No deduction was made for the widow’s anticipated civil-service pension.
5. Future claims. Following Phipps v Brooks Dry Cleaning Limited [1996] P.I.Q.R. 100, future loss of services after death could not be awarded in a living mesothelioma claim. However, adopting the reasoning in Andreou v S Booth Horrocks & Sons Limited [2017] EWHC 174 (QB), the court adjourned that claim and the claim for future medical expenses, with permission to restore.
6. Other proved heads of loss were awarded or assessed in accordance with the judgment, including £3,500 for replacement DIY and related work and £25,000 globally for childcare.

First-instance assessment of damages following default judgment entered against the Second Defendant on 25 June 2024. No appeal history was stated.