Asbestos Justice can report on the recent High Court decision in the case of Head v The Culver Heating Co Limited [2019] EWHC 1217 (QB).

March 2018 mesothelioma diagnosis

In this mesothelioma claim, the Defendant accepted that it had negligently exposed Mr Head to harmful amounts of asbestos dust during the course of his employment with the company between 1974 and 1979. Sadly, this exposure led to him being diagnosed with the incurable asbestos-related cancer in March of 2018.

Agreement on the value of most aspects of the claim

Before the trial, the parties succeeded in agreeing virtually all parts of the claim including mesothelioma compensation to cover care and assistance, private treatment costs, house adaptations, equipment and travelling expenses.

General damages and lost years

However, two so called “heads of loss” remained in dispute, namely “general damages” and the “lost years” claim. General damages covers the value of the claim for the sufferer’s condition and takes into account their pain and suffering and all of the things their debilitating asbestos-related condition stops them from doing. The principle relating to a lost years claim was referred to in the case of Pickett v British Rail Engineering [1980] AC 136 which confirmed that a Claimant can recovery the income that they would have received, had their life expectancy not been curtailed by their personal injury.

How to calculate a “Lost Years” claim

The normal approach to calculating this part of a mesothelioma claim is to set out in evidence before the court, detailing what the Claimant’s life expectancy would have been, but for developing the mesothelioma. The court will then determine what the Claimant’s life expectancy actually is, having regard for the seriousness of the condition. Finally, the court will then assess the difference between the two figures referred to and this is then seen as the “lost years” period.

Parties at loggerheads

In Head, the parties were at loggerheads with respect to their valuations on the “lost years” part of the mesothelioma claim. The Claimant ran a successful business and claimed losses equating to £4,421,683.00, whereas the Defendant argued there was no loss and offered nothing towards this element.

Expert accountancy evidence

Whilst expert accountancy evidence was obtained by both sides in the case, both experts were in agreement that the method of calculating the appropriate award for the lost years claim would be a matter for the court to decide upon.

It was seen as being highly relevant that a “significant” portion of the Claimant’s losses in the lost years came from investments in the form of his 90% shareholding in his multi-million pound turnover business. This would likely survive his death.

Arguments

The Defendant relied upon the decision in the case of Adsett v West [1983] QB 826 in support of its argument. In this case it was held that while income arising from a Claimant’s capacity to work was recoverable in a “lost years” claim, income arising out of capital which survives a Claimant’s death was not.

The Claimant’s legal representatives argued that Adsett could be distinguished from this case on the facts as the return on his investment was a “reflection of his acumen, experience, skill and hard work” and was not due to a “passive holding in a business”.

The decision

At trial, High Court Judge, Melissa Clarke found in favour of the Defendant and assessed the value of the “lost years claim” at nil. It was accepted that the principles laid out in Adsett applied. She stated wen referring to the precedent:

“In my judgment, it is clear that McCullough J (hearing Adsett) is ignoring income which survives death when approaching what he sets out as a two-stage process. The first step is calculating the surplus i.e. the earnings or earning capacity which are lost on death less the living expenses which would have bene spent in life but are “saved” in death. However, he necessarily takes the income which survives death into account in the second stage of his reasoning i.e. whether there is an overall loss in the lost years when income which survives death is taken into account”.

The judge also held that the Claimant’s own income from his significant shareholding dividends was likely to survive his death and further, the share dividend income was actually greater than the Claimant’s “surplus” director salary at the time. This essentially meant that there was no shortfall and, therefore, no compensatable loss in the “lost years”.

General damages award

Whilst the Claimant lost on the major “lost years” claim point, the pleaded claim for mesothelioma compensation for general damages was awarded at £95,000.00.

Comment

This case shows the importance of gathering evidence in support of losses in the “lost years” period in claims for mesothelioma compensation. Witness evidence will need to be gathered, showing what effect not having the Claimant at the “coal face” will have on a business, particularly if they are the driving force behind the business. There are likely to be many cases which can be distinguished from Adsett on the facts, if such evidence is available.

If you require assistance in pursuing a mesothelioma claim and wish explore the possibility of claiming for private treatment costs, or believe you have a valid asbestos claim for any other asbestos disease then please contact us today on our freephone number 0800 038 6767. Alternatively, head over to the ‘Contact Us’ page, complete the form and we will be in touch.

 

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