Asbestos widow wins test case

Posted: 23rd January 2014

AsbestosIn a ground-breaking decision likely to herald an increase in compensation in fatal accident claims, a widow who was stricken by terminal lung cancer after years spent washing her husband's asbestos-laden overalls has won compensation totalling more than £700,000.

Recognising that the case raised ‘a point of some novelty’, the Court of Appeal found that the widow should be compensated for 23 years’ loss of dependency on her deceased husband, notwithstanding the fact that her own life expectancy had been drastically curtailed.

The widow had endured the agony of watching her husband die from mesothelioma - an incurable lung cancer associated with asbestos and caused by his years spent working as an electrician for Philips Electronics UK Limited. Two years after his death, she began suffering the same symptoms of acute breathlessness as her husband and a diagnosis of malignant mesothelioma was confirmed.

Her husband, who had worked for Philips for 40 years, had been exposed to asbestos dust decades before whilst dismantling boilers and other equipment at one of the company's factories. Her own exposure occurred because the couple lacked a washing machine, requiring her to shake her husband’s clothes out to remove the dust before washing them by hand. In February 2013, a medical expert had estimated that she had only six to 12 months to live – compared to a normal life expectancy of 23 years - although, happily, she had survived to play a full part in the proceedings.

The widow issued two sets of proceedings against Philips. The first was brought as a dependent under the Fatal Accidents Act 1976 and on behalf of her husband’s estate under the Law Reform (Miscellaneous Provisions) Act 1934. Liability was conceded in full and that claim was settled for £195,000. The damages for loss of dependency were premised on the assumption that she had a remaining life expectancy of 0.7 years because of her illness.

In her second claim, the widow sought compensation in her own right. Philips agreed to pay her £310,000 but disputed her £200,000 claim for future loss of dependency arising from her husband’s death. Her lawyers argued that, but for Philips’ negligence, her life would not have been cut short and that the assessment of her dependency claim in the first action would have been significantly greater.

Those submissions did not prevail at the High Court and the widow was refused the additional £200,000 award. Philips argued successfully that the widow’s dependency on her husband would inevitably have ended on her own death and that she would therefore suffer no loss after that date.

Allowing her appeal against that decision, the Court of Appeal ruled that there was no reason or principle or policy which should deprive the widow from recovering damages to reflect the loss that she had in fact suffered as a result of the curtailment of her life expectancy as a result of Philips’ admitted negligence. There was nothing in the legislation to justify the inference that Parliament must have intended claimants to be denied the right to recover damages to reflect a reduction in value of a claim which was wholly attributable to negligence.

The Court concluded, “It is reasonably foreseeable that a curtailment of life may lead to a diminution in the value of a litigation claim and, if a claimant has such a claim, the wrong-doer must take the victim as he finds him…It must have been foreseeable to this defendant that the claimant would have dependency rights which would be diminished as a result of their negligence.”