News / Landmark hospice costs victory for Mesothelioma victim


Landmark hospice costs victory for Mesothelioma victim  

09/08/2010

In the recent case of Drake & Others v Foster Wheeler Ltd, the High Court (Judge Anthony Thornton QC) allowed a claim for a proportion of the value of hospice care provided to a terminally ill man suffering mesothelioma. An analysis of the jugment by GCN's Peter Hodson is below.

Drake v Starkey [2010] EWHC 2004 (QB) (05 August 2010)

> judgment

Facts

The claim was brought by the Executors of The Estate of Mr James Wilson. Mr Wilson died of mesothelioma which he had contracted as a result of his exposure to asbestos when he had worked for the defendant in the early 1950s as a boiler erector at Dartford power station. The estate brought proceedings against the defendant claiming damages under the Law Reform (Miscellaneous Provisions) Act 1934 and they also included claims under the Fatal Accidents Act 1976 on behalf of the deceased’s children, grandchildren and great-grandchildren.

Judgment was entered for all claims on 20 July 2009 by order of Master Eastman with damages to be assessed. Judge Thornton QC was concerned only with the assessment of two remaining issues as to damages.

The Decision

The Dependency claim is likely to have limited wider application but the “hospice care claim” may prove otherwise.

The parties acknowledged that the “hospice care claim” was novel and unsupported by any direct reported authority. The Estate argued:
(i) the care provided by the hospice was both reasonable and necessary for Mr Wilson to receive given his terminal decline in health as a direct result of the malignant mesothelioma for which the defendant was wholly and directly responsible in law; and
(ii) that the claim was one which fell within the head of recoverable loss commonly brought for medical, nursing and other care costs and directly analogous to claims brought for the value of gratuitous care provided by family and friends.

In accepting that the head of loss was recoverable the Court placed great weight on the fact that the hospice provision was predominantly palliative rather than medical and the provision of those services was charitable and gratuitous in nature and provided without any obligation on Mr Wilson or his Estate to pay the costs of those services (although Mr Wilson’s family did feel morally obliged and determined to recompense the hospice for the palliative care it had provided).

When valuing the head of loss the Court accepted the appropriate sum was that proportion of the cost of providing hospice care to Mr Wilson which was funded by the voluntary and charitable donations to the hospice. That is, the Court allowed 62% of the cost of the care provided to Mr Wilson by the hospice, 62% being the percentage of the hospice’s running costs for 2007, not funded from the donations made to it by the National Health Service.

Comment

Given the limited funding available to hospices and the invaluable care that they provide to many mesothelioma victims, this decision is to be applauded as a welcome development of established principle. It should result in additional funds to support the work of hospices and in continuing the work they do in caring for those in need of their services.

Peter Hodson specialises in occupational injury and disease claims.

Quick links

> 29/8/10 - Mesothelioma: Hospice wins landmark victory in asbestos cancer case (The Observer)



Right menu

  What's New?  
 

21/11/11 European citizenship

18/11/11 Surveillance laws

16/11/11 Prison distance learning policy unlawful (HMP Wakefield)

11/11/11 L'pool 'Bloody Sunday'

3/11/11 Mark George QC called to Bar of Northern Ireland

28/10/11 Indirect discrimination

26/10/11 Chambers UK 2012

21/10/11 Philip McLeish joins

18/10/11 Squatting reform

18/10/11 Riot appeals

13/10/11 AXA asbestos appeal

12/10/11 New Ogden Tables

10/10/11 Sarah Daley nomination

6/10/11 Supergrass evidence

3/10/11 Parole: "mistake of fact"

29/8/11 Manuel Valle execution

28/9/11 Teacher cleared (Wilson)

22/9/11 Legal 500 2011

21/9/11 Manchester Legal Walk

4/8/11 Learning disability in prison

3/8/11 Criminal law update

2/8/11 Sara Woodhouse Davie

22/7/11 Murder of burglar (ITV)

21/7/11 Trafficking offences

12/7/11 Joint enterprise

4/7/11 Prison law bulletin

30/6/11 3rd party race discrim

21/6/11 LASPO Bill

16/6/11 Facebook juror

14/6/11 Sex Offenders register

31/5/11 Retention of DNA

26/5/11 Fasting prisoner, Art 9

23/5/11 Sentence Calculation

19/5/11 Lawful containment

12/5/11 Compensation for miscarriages of justice

5/5/11 Vulnerable witnesses

3/5/11 PAS Guardian article

20/4/11 Proportionate recall

31/3/11 Makisi (Homelessness)

29/3/11 Teacher arrest unlawful

29/3/11 Mark Barlow (Radio 4)

28/3/11 Fresh Claims

17/3/11 Hearsay (Confiscation)

3/3/11 Sex Offenders Register

Feb 2011 Housing bulletin

22/2/11 Death Penalty training

14/2/11 Bahrain: BHRC report

11/2/11 Damages: Art 5(1)

8/2/11 Litigants in person

3/2/11 Theft of illegal property?

1/2/11 EHRC Preferred Counsel

26/1/11 Jared Ficklin joins

24/1/11 FNP recategorisation

20/1/11 Art 6(1) and disclosure

7/1/11 Mark Barlow in Rook & Ward on Sexual Offences (4th)

4/1/11 Osborn & Booth

Immigration Law & Practice (8th)

9/12/10 Reverse burden of proof

30/11/10 Whole-life tariff

25/11/10 Prisoner voting

23/11/10 Death at HMP Wymott

23/11/10 Sexual orientation

3/11/10 Pinnock judgment

28/10/10 Raymond Morris

27/10/10 Arizona execution

27/10/10 Matthew Stanbury called to Bar of Northern Ireland

25/10/10 Immigration detention for mentally ill (Anam)

22/10/10 Disab.Eq.Duty (Pieretti)

1/10/10 Equality Act 2010

9/9/10 Succession provisions

Sep 2010 Immigration Bulletin

16/8/10 Cat A (Krstic)

26/7/10 Crossfire shooting

23/7/10 HM (Malawi)

30/6/10 Noone and HDC

23/6/10 Out-of-time appeal IPP

7/6/10 Rape anonymity

18/5/10 US Supreme Court outlaws life without parole for non-homicide juveniles

30/4/10 Whole life tariff quashed

19/4/10 Hannah McIntyre

25/2/10 Assisted suicide

16/12/09 Third party support

16/12/09 Sonny Lodge inquiry

5/12/09 2004 conviction unsafe

30/11/09 IPP transfer- Guittard

9/10/09 BVT: LAG article

2/10/09 "Letter from America"

9/9/09 Michael Shields released

8/7/09 COPD compensation

16/6/09 Murder quashed

22/4/09 Mc'r Admin Court

30/3/09 New QC

12/11/08 Pro-bono hero

23/10/08 "Small but beautiful"

17/9/08 Historic allegations

9/9/08 Dog "Rocky" not guilty

4/7/08 Posthumous appeal

14/3/08 Police on juries?

24/2/08 LCN DNA: Unreliable?

22/11/07 Mesothelioma ruling

12/04/06 Oral sex in public

> Go to News headlines

Privacy Policy