Measure of Damages in Living Mesothelioma Claims

Posted: 4th Feb 14 1:37 PM

Haxton v Philips Electronics UK Limited [2014] EWCA civ 4.

A decision of the Court of Appeal handed down on the 22nd January 2014 involves consideration of the measure of damages in a living mesothelioma claim.  The claim is an unusual one involving a novel issue, although it potentially has far reaching implications.

The facts of the case are that the claimant, Mrs Haxton, was the widow of an electrician employed by Philips Electronics.  Mr Haxton contracted mesothelioma as a result of negligent exposure to asbestos in the course of his work.  Mr Haxton died in 2009 from mesothelioma and Mrs Haxton brought an action on behalf of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and as his dependant under the Fatal Accidents Act 1976.

The value of Mrs Haxton’s claim for dependency arising out of her husband’s death had to be calculated in accordance with her own life expectancy.  However, before this case came to trial, Mrs Haxton herself was diagnosed with mesothelioma brought about by secondary exposure to asbestos through washing her husband’s work clothes.  Consequently her life expectancy was dramatically reduced.  It was agreed that the value of Mrs Haxton’s dependency claim arising out of her husband’s death was reduced by £200,000 as a consequence of the fact that her life expectancy had now been significantly reduced to a short period of time.

Mrs Haxton brought a second action against Philip Electronics seeking damages for her own injuries as a result of washing her husband’s clothes and being exposed to asbestos dust.  In this claim she sought an award of £200,000 for the diminution in the value of her dependency claim in the first action.

At the trial, the judge disallowed the claim on the basis that, while the loss had been suffered, it could not be claimed because it was contrary to principle to allow her to recover in her own right a claim for loss of financial dependency on her husband when in fact she would not suffer the financial loss because she only had a short period to live.

The Court of Appeal disagreed with the Trial Judge and reversed his decision allowing Mrs Haxton to recover this head of loss in her own action.  The Court of Appeal held that it should have been reasonably foreseeable to the defendant that if they caused a curtailment of Mrs Haxton’s life this could give rise to a loss in the value of any litigation claim she may have, and the defendant had to take Mrs Haxton as they found her.  The court did not accept that it was too remote or unforeseeable for the defendant to have considered that Mrs Haxton may have a litigation claim which would be affected by the shortening of her life.

The Court of Appeal also dismissed the defendant’s argument that Mrs Haxton should not be allowed to recover financial dependency for a period when she would not in fact, because her life expectancy was short, be financially dependant.  The court confirmed that it was possible at law to recover losses for a period when the claimant was no longer living (referred to as the lost years claim in mesothelioma claims).  The court also found that, in fact, Mrs Haxton had actually suffered loss at the point of settling the first claim arising out of her husband’s death.

The court therefore allowed the Claimant’s appeal and awarded the Claimant an additional sum of £200,000.

The claim has potentially far reaching implications beyond mesothelioma claims.  It will apply to other cases where a claimant has a legal claim for damages against one defendant which is reduced in value as a result of a subsequent negligent action by a second defendant.