Landmark hospice costs victory for Mesothelioma victim  

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)