James Fitzpatrick v Ministry of Justice & Anor [2024] EWHC 3609 (KB)

[2024] EWHC 3609 (KB)Case No KB-2023-003968
IN THE HIGH COURT OF JUSTICE
Venue Royal Courts of Justice, Strand London WC2A 2LL
Before
HIS HONOUR JUDGE GLEN(sitting as a Deputy High Court Judge)
Between
JAMES FITZPATRICKCLAIMANTLegal RepresentationMr Rachit Buch (Counsel) appeared for ClaimantThe Defendants were not present nor representedJudgmentJudgment date: 28 November 2024(start and end times cannot be noted due to audio format)Reporting Restrictions Applied: No“WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.”“This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.”Number of folios in transcript 85 Number of words in transcript 6,086His Honour Judge Glen:Introduction.Date 2024-11-28
[1]In this matter my task is to assess damages following the entry of a default judgment against the Second Defendants in this case on 25 June of this year by Master Davison. Those damages arise out of a claim for personal injury arising out of the contraction, if that is the right word, by the Claimant, Mr Fitzpatrick, of peritoneal mesothelioma.[2]The Claimant has been represented today by Mr Buch of Counsel. The Second Defendant does not appear and is not represented. For the purposes of resolving this matter I have heard oral evidence from the Claimant and read his witness statement. I have considered expert evidence in the form of two reports from Dr Davies dated 25 June of last year and 18 July of this year, and a report from Dr Shah, a consultant oncologist, dated 30 July of this year. I take all of that material and various other documents within the bundle into account. I have also been greatly assisted by a well-fleshed skeleton argument prepared by Mr Buch. Nothing I say could possibly do justice to the comprehensive nature of his submissions but I have the law well in mind in reaching the decisions that I do.[3]I give this judgement ex tempore. If there are dates or times or places, things of that kind which I get wrong in the course of this judgment I am happy to correct those at the end. Likewise, if there are issues which I omit and they are important and need to be dealt with I will deal with it at the end.[4]Liability is not in dispute and therefore it is unnecessary to say very much about the circumstances that led the Claimant to his present predicament. It suffices to say that there have been two periods of his life when he might well have been exposed to asbestos fibres, fibres which now carry a well-known risk of developing the very condition that he has developed.[5]The Claimant was born on 27 March 1955 and as a child he lived in a property provided to his father as part of his employment at the Gaynes Hall Borstal as it used to be known. In 1965 some outbuildings on the site were demolished. They were, at least in part, constructed using sheets of asbestos. In their innocence the Claimant and other children played on and with those sheets. Later the Claimant had a long career as an officer of Her Majesty’s Customs and Excise based, for at least some of the time in the 1970s, at Customs House. During that time it is said that he was exposed to asbestos dust when entering the basement of the property due to the lagging on the pipes and/or in the course of various works of maintenance and renovation of that building.[6]He retired from that employment and come 2020 at the age of 65 he was a fit and active man, running two or three times a week, extremely good at working around the house, particularly with DIY both for himself and his children. He has four children and as I understand it now 13 grandchildren and it is clear to me on the evidence that I have heard that he has clearly been closely involved in their lives and provided considerable assistance to them all in setting up and maintaining their homes and in caring for his grandchildren.[7]In the early part of that year the Claimant began to develop acute abdominal pain. He made a number of presentations to local healthcare establishments but was not in the end diagnosed until the end of that year when he was informed that he had his present condition. He was referred to the National Centre for Excellence for that condition based at Basingstoke, some distance from his home in Watford. Fortunately, in something of a thin silver lining on a very dark cloud, he was assessed to be potentially suitable for surgery and the specialist treatment offered at that establishment. He underwent six courses of palliative chemotherapy to see whether he was likely to respond, and the results of that were sufficiently encouraging to confirm him as suitable for what is known at cytoreductive surgery. This involves the removal of the peritoneum and appendix and a rather unpleasant sounding hot chemotherapy wash of the internal parts of his stomach.[8]That surgery took place in January 2022. He was in hospital for some 13 days, returning home to be cared for by his wife. He has made a recovery, if that is the right word, to a ‘new normal’. He is not as fit as he was and in particular he is unable to engage in heavy DIY or similar work. He has however otherwise recovered otherwise much of his previous function.[9]There is no pretending that there is not the ever present fear of recurrence, although mercifully at the moment there is no evidence that the disease is progressing. He has had a number of scares. Indeed very recently he spent a number of days of hospital in the Republic of Ireland and these inevitably will tell on his state of his mind. There is also no pretending that his prospects of long term survival are not particular high. The expert evidence suggests that the probability of him living for three years post-surgery is 60%. He looks as though he will fulfil that, but at five years the probability falls to 43% and thereafter it reduces still further.[10]This claim was issued on 16 October of last year, naming the Ministry of Justice as First Defendant in relation to what happened in his childhood and the Home Office as the Second Defendant in relation to his time at Customs House. The Ministry of Justice filed a defence and when the matter was before Master Davison he made some agreed directions which set out a timetable for resolving the assessment of quantum in relation to the claim against the Second Defendant. In one of those curiosities that I cannot explore, the First Defendant is represented by the Government Legal Department. Having filed a defence, it was agreed that the claim against the First Defendant would be stayed until 6 January of next year to allow these proceedings to run their course. One finds it extraordinary that out of two government departments one is represented and the other has never filed an acknowledgement of service or indeed has made any form of appearance in these proceedings in any way.[11]The rather one-sided nature of the hearing today creates some obvious difficulties. Mr Buch has been, I am quite satisfied, careful to observe his duty as Counsel. He must however ultimately argue his client’s case and it is always very difficult to deal with matters when they are imbalanced in that way. There we are. The function of the Court in this unusual situation is on the one hand not to rubber stamp the claim offered by the Claimant but equally it is not to argue every or any possible case on behalf of the absent Defendant. I must accept the Claimant’s evidence as it is unchallenged except where it is apparently inconsistent with any other evidence that might be before the Court.[12]I do not propose to rehearse the evidence that I have read and heard in general terms but I will deal with it when I come onto the individual items of claim. Likewise in relation to the law that applies I will address specific aspects of it in relation to specific elements of this claim. I do however make the important general observation that the Claimant brings this claim and he must prove it. That means that he must provide the evidence to prove the individual components of his loss to the usual civil standard. If there is no evidence there can be no award.[13]The Court has a duty to scrutinise the claim and ensure that each element is justified in law, properly reflects evidence of loss, and is a realistic assessment of that loss. Nothing that I say in the course of this judgment is intended to diminish the actuality and reality of the situation that the Claimant finds himself in or the suffering that he has undoubtedly undergone and may well have to undergoin the future. I can only apologise if the raw and cold act of analysing facts and figures causes any offence.[14]I turn first to the question of general damages for pain, suffering, and loss of amenity, an exercise of assessment sometimes referred to as an art rather than a science. I must start with the guidelines published by the Judicial College Guidelines for the Assessment of General Damages for Personal Injury. I do not think anyone would dispute that this case falls within category 6C(a), the mesothelioma category. That category suggests, and it is of course a suggestion based on analysis of an extensive and comprehensive analysis of past cases, that there is an appropriate bracket of £77,680 to £139,680.[15]I accept Mr Buch’s submission, supported as it is by the narrative at the start of the guidelines, that that this bracket needs to be upgraded for inflation and the top end is probably now at about £145,000. The guidelines remind me that of course the assessment within that bracket involves considering a number of factors including but not limited to the duration of the pain and suffering, the extent and effects of invasive investigations, radical surgery, chemotherapy and radiotherapy. I have to take into account the fact that the mesothelioma is peritoneal rather than pleural, it beingrecognised that the latter is typically more painful. I have to consider the extent to which the tumour has spread to encase the lungs and other organs causing additional pain and breathlessness. I must have regard to the level of symptoms, domestic circumstances, age, level of activity, previous state of health, extent of life loss and concern for spouse and/or children following death. The authors say that most reported decisions other than those involving extremely short periods of symptoms or very elderly claimants fall within the middle and upper parts of the bracket.[16]Mr Buch has offered me a number of previous quantum decisions to inform my deliberations but like all such decisions, particularly those that are approaching ten years old, the uprating for inflation sometimes distorts the underlying award. As the guidelines recognise all such cases are serious and this one is no exception.[17]I take fully into account the degree to which this Claimant has suffered, particularly in the early to mid-part of 2020 and following surgery. I take into account the extensive chemotherapy, the ‘brutal’ surgery in January 2022, his age, and the period over which this suffering has and will take place. As I have said, the mental suffering involved in waiting and wondering is an extended one. I acknowledge that being hospitalised during the covid pandemic must have been a particularly unpleasant and frightening affair, something which added to the suffering that is inevitably consequent on any trip to hospital. It also meant that isolation following and preceding surgery was no doubt particularly unpleasant. Those are matters which I accept are weighed in the balance when coming to a figure.[18]As I say there is no doubt that this case lies at the top end of the relevant bracket. I do however have to recognise that that bracket is a wide one and includes cases which are worse as well as many that are less bad than that of the Claimant. Mr Buch, despite his eloquent submissions to me, fails to persuade me even with the covid factor that this matter falls outside the four corners of that bracket. I have to recognise, and it is greatly to the Claimant’s credit, that he appears to have ridden and recovered from the various treatments that he has had relatively well and has been blessed with relative health for some time in the intervening period. In the round in my judgment the right figure to represent general damages for pain, suffering and loss of amenity in this case is a sum of £130,000. There will of course be interest added to all these sums.[19]I turn then next to the question of past care and assistance. There is no doubt in principle that the Claimant is entitled to recover for the value of gratuitous care rendered to him by his wife. Of course it is an award which he holds on trust for her. I propose to read, because it is important that I do, some passages from his evidence which bear on the question of care which is a significant component of this claim.[20]Paragraph 8 is really the principal one. He says that when his chemotherapy commenced in February 2021 they had to put their whole lives on hold:
“It really affects your immune system, so I would feel pretty ropey for around two out of three of the weeks following chemotherapy, and I needed a lot of help and assistance from Margret. As well as not being able to do my normal household tasks Margret had to help me with pretty much every aspect of my day to day life. Having previously been so fit and well and independent it was difficult to accept that I needed help and assistance.”
[21]It goes on: “I estimate that in the months leading up to my diagnosis, when I was having a flare-up she would typically spend five or six hours a day looking after me or doing jobs around the house that I was no longer able to undertake. Between flare-ups, when I was a little better, I was still very restricted in what I could do and Margaret probably spent around two to three 3 hours a day at that stage looking after me to some extent but pitching in and doing more jobs around that house than she would previously have done. It was a similar pattern during the chemotherapy, except that even when I was well I still could do very little so Margaret would still spend an extra four hours or so looking after me or doing jobs/housework I would have done before.“

doing jobs/housework I would have done before.“

[22]At paragraphs 14 and 15 he says this:
“Between each cycle of chemotherapy I was floored by it from about three days after the chemotherapy until shortly before the next one. I felt sick and nauseous and had to take tablets to control the sickness. I coped well but I was still wiped out by it and each cycle was worse than the last. Before I became unwell I would do all of the hoovering, clear after dinner, clean the windows and cut the grass etc. Margaret took over all sole responsibility for all the driving. She also had to take over many of these jobs and neglect others as well as look after me. We muddled on through but got some help for “outside” jobs – so for examplewe employed a window cleaner, something we would never have considered previously. A lot of things just got left, so this month for the first time since my illness we have managed to clean all of the interior windows.”
[23]At paragraphs 20 and 21 he says this:
“After the operation there was virtually nothing I could do for myself. Margaret had to do everything for me. I was in hospital for 13 days after the operation, which I have been told is an incredibly short time before discharge. When I came home I felt desperately unwell. The journey home was quite an ordeal. Once I got home I used to have to try to rest as much as possible and Margaret had to look after me. She even had to give me antithrombotic injections into my abdomen. …As soon as I was able to climb steps they discharged me home. This was within 13 days, which was I was told was very good. When I was discharged home I could do literally nothing for myself and I needed help with bathing and dressing.”
[24]When the Claimant gave evidence I invited him to comment on some passages in the first report of Dr Davies where he reviews the medical records. At page 41 of the bundle, internal page 18 of the report, he refers to a detailed letter from Samantha Westbrook, peritoneal mesothelioma clinical nurse specialist dated 10 February 2022 talking about discharge. She has recorded that he was pottering around the house using the stairs and was independent with personal care needs, getting outside and completing his exercises. I asked the Claimant whether that was a fair summary and he agreed that it was. There is a further note, a review by her on 19 May where she noted no significant concerns and that the Claimant was, to use her words “Back to all his usual activities”. The Claimant was not entirely clear what ‘usual activities’ she was referring to but he drew a distinction between his ability to look after himself and his ability to look after others.[25]It is right that I should observe that the Claimant has chosen not to obtain expert evidence on the question of care. That is not to say that one cannot recover for care without such evidence but it is merely an observation. It is also an observation that I do not have any evidence from Mrs Fitzpatrick. Again, that would be considered to be slightly unusual in a case of this kind.[26]Insofar as the rate to be allowed for gratuitous care is concerned, Mr Buch argues that this is a case where what one might regard as an unusual course should be taken so far as rates of care are concerned. It is a convention if no more than that, or perhaps just common experience, that gratuitous care is allowed at NJC rates with a deduction of 25% to reflect the cost of tax and national insurance and also of course the costs of providing that care. Mr Buch argues that in this case I should take what he describes as the actual cost of providing professional care in the Watford area. He describes that as ‘localising’ this particular claim.[27]The evidence which I have been offered on the subject of what it costs to provide for care in the Watford area appears at page 152 of the bundle and consists of a screenshot from someone’s phone of a visit to a website called Jooble. This tells me that a carer in Watford Hertfordshire could expect to earn £29,918 a year and a domiciliary carer £36,415. Mr Buch tells me from the bar that those screenshots were taken in 2024 but there is no evidence about it, nor is there any evidence to support what the rates might or might not have been for any other period. Mr Buch argues that the extent and nature of the care offered by Mrs Fitzpatrick takes this case outside of the norm. She is beyond the so called ‘unskilled home carer’ contemplated by the NJC rates.[28]I agree with Mr Buch as a matter of law that the Court should award a rate which most closely represents the loss in each individual case provided of course that is evidenced. However there are two, as it seems to me, insuperable problems with the submission that he makes. First, however valuable at a personal level Mrs Fitzpatrick’s care may have been, there is no feature of it other than perhaps the injections which she had to perform immediately following discharge from hospital which takes this case outside the general run of the kind of domestic care that is offered in cases of this kind. There is also I may say no evidence other than in a very broad and inferential way of care being offered out of normal waking hours. Secondly, in my judgment the evidence that has been offered goes nowhere near enabling me to be satisfied that the so-called Watford rates can be safely extrapolated over the period that we are talking about.[29]In these circumstances I propose to award care at a rate which represents the usual NJC spinal 2 rate. That rate should be the basic rate for periods A to C and E to (although it is not labelled as such) H, and the aggregated rate for the period immediately following discharge from hospital; period D.[30]That leaves on the question of rate the question of the deduction. Mr Buch argues that it is time to revisit the convention that a 25% deduction is made. He points out in his skeleton argument that when that deduction started to be used it properly reflected an appropriate deduction 25% at the higher rates used. However, at lower rates the marginal tax rate is significantly lower. I accept that submission. It seems to me that it is time for an adjustment to be made in cases where the NJC, particularly at the basic rate, is being awarded. I propose to make a deduction of 20% in this case rather than 25%.[31]We come then to the question of time. I make this general observation. Mr Buch conceded (see paragraph 46 and 47 of his skeleton argument) that a claim for loss of services in relation to household tasks could not safely be pursued. He invites me however to recognise that this is an enhancement to be built into the time that I allow in relation to the main care claim. I agree that it is appropriate to take that approach.[32]I have no difficulty with period A. So far as period B is concerned, the narrative in the schedule is not actually supported by the extracts from the witness statement that I have read into this judgment. I will allow an average rate of five hours per day over that period which includes a half an hour (taken from the narrative) to reflect the matters referred to above.[33]In my judgment the hours per day in Period C, which I will call the post-chemotherapy period, are again overstated, albeit not by very much. Essentially what seems to have happened according to the witness statement is that the care being offered to the Claimant reverted to the level that it was at before he started it. Accordingly I allow three hours a day during that period.[34]There are two difficulties with period D. The first is that the Claimant spent 13 days of that period in hospital which has not been allowed for, at least not explicitly, in the narrative. Whilst I accept care is provided when people are in hospital I do not think that was necessarily the case here given both the covid pandemic and of course the geography. The second problem is the Claimant’s oral evidence, accepting the narrative in the medical notes, that by February 2022 he was largely independent of personal care. Putting all that together and trying to come up with an average is not very easy. I acknowledge that it might well have been 12 hours of care right at the beginning when he first came out of hospital but it had fallen significantly by the end. What I will allow there is 84 days (which includes the time driving him to and from the hospital) at an average of seven hours a day.[35]Thereafter it seems to me the hours per day are significantly overstated on the evidence. As I have said, by now the Claimant was independent of personal care although I do not doubt that he needed some assistance with some things. Suggestions of ten hours or six hours are very wide of the mark. In my judgment for periods E and F the evidence establishes a claim of two hours per day over those periods, and for periods G and what I have taken as H, one hour.[36]I turn next to the question of gardening and DIY. In this respect it seems to me a careful distinction needs to be drawn between three different things, all of which are unfortunately blended in the way that this schedule has been drawn: - There is the question of DIY which the Claimant would like to have done but which had to be foregone. That is a loss which is reflected in my assessment of general damages for loss of amenity and does not attract a separate award. - There is DIY which the Claimant would like to have done but in the end had to get other people to do. That is a loss which properly sounds in special damages. - There is DIY etc which the Claimant would have done for other people. That is undoubtedly something for which there can be recovery, whether that was gratuitous or otherwise The difficulty is separating out those elements from this blended schedule.[37]There is no pleaded claim for specific losses arising out of the Claimant’s inability to do DIY or similar work but Mr Buch did take me to a series of invoices in the bundle. I propose to make an award based on those notwithstanding the delinquencies in the statements of case. Doing the very best I can, taking a round view and of course bearing in mind that not all of those invoices are for labour only, I have come to the conclusion that I can award £3,500 as a discrete sum as part of this category.[38]That leaves the question of the Claimant’s services for others. Here it is important to recognise that the Claimant has given extensive assistance to all of his children in setting up and maintaining their homes. I do not propose to read the evidence which relates to that but it is thorough and convincing. The type of work that he has done is both unusual in quantity and unusual in type and amounts in many respects to skilled general building, gardening and landscaping. The Claimant says he is now reduced to operating in a supervisory capacity and can only offer some minor physical assistance, although I note from the medical evidence that relatively recently he was found unwisely trying to lift a shed.[39]In respect period A, it is suggested that one third of that time would have been time given to his children and two thirds of that would have been his own DIY. Accordingly it seems to me that only one third is really capable of reflection in an award and that has to be reduced because of the impact of the covid pandemic. I will allow the rate but I am going to award a quarter of that for that period. For 2022 I accept the claim as put. For 2023 and 2024 I agree that the figure of half as pleaded is also a realistic one.[40]I come then to a yet further difficult category which is childcare. This again requires definition. Childcare, in my judgment, involves looking after children in place of their parent or parents by way of a service to them. That is in distinction to simply being with children and looking after them during that time. The relevant evidence from the Claimant is as follows:
“I have been able to do a lot of practical work for our children to help them out. Tomas is a Police Inspector and his wife, Siobhain, is a Mental Health Nurse, so they are both very busy working shifts. At the time when I first became unwell they had a small baby but they now have three children aged four, two and one. My wife and I like to help out a lot with childcare and this is a real help for Tomas and Siobhan. In the school holidays we look after them pretty much every day, and when the eldest is in school, we look after the other two at least three times a week. We often take the oldest to school first. Our second son is called Michael is married with two young children. He lives in Ireland… I assist with the children where I can. During the Summer holidays, Katharine’s [their third child] children come to stay at our house, along with some of their other cousins. They basically “invade” us for a few weeks. This allows Katherine and Steve to work. Steve…travels a lot... He is away for at least six weeks a year. Although he is trying to limit the travel, when he is away Katherine cannot really manage the children on her own. They are aged nine, seven, four and two. …She is employed for three days a week. As a result we are often in Exeter helping out, or the children are visiting us during the holidays. …Margaret cannot manage to look after the four children on her own, it is just too tiring. The children are a delight but they are also a handful. We look after them together. I would estimate that we are down in Exeter approximately 30 to 35 days days a year, and that Katherine’s children come to stay with us for approximately 2 or 3 weeks of the year. Luke and Ciara [their youngest child] are both teachers so the Summer is not quite so fraught for them with childcare as it is for our other children. When we care for their two young children, we might look after them for the weekend every now and again so that they can get away. The childcare that we give to Ciara and Luke is minimal because Ciara is not working so much whilst the children are so young. She does a few hours per week online teaching for Watford Further Education College.”
[41]Looking at the schedule I am content to accept that on the first page of this element of the claim (page 11 of the schedule), 940 hours is a reasonable calculation. On the next page I am content with the 50 hours and the 60 hours for Katherine.Given that the witness statement refers to the care in respect of Ciara’s children being minimal, I would not allow for that. In the round I accept that an annual figure of 1,000 hours is appropriate before making appropriate adjustments. For 2020 I allow 500 hours as that was of course a year when covid had a significant impact on the ability of families to spend time together. I allow the full 1,000 hours for 2021 and then, bearing in mind the Claimant’s increasing ability to offer childcare, 500 hours in 2022. The evidence of an inability to offer childcare is very thin for 2023 and 2024. Given that I calculate even using NJC rates that the total to 2022 is not going to be much less than the figure which is put in the schedule of £25,000, I propose to allow that sum as a global award for childcare.[42]I have already indicated that I have no difficulty with the claim in respect of driving or the claim in respect of aids to date. The evidence on past travel is not as full as perhaps one might like but I can understand that it was not easy to be shuttling to and from Basingstoke. I will award the sum claimed at section 5.[43]At section 8, future care, I will award that at the NJC rates and in my judgment the allowance for time to be spent in hospital and/or in hospices is a little understated so there will be a 15% reduction to reflect that. The claim for future loss of services will need to be recalculated in the light of my decisions on rates earlier in this judgment but in principle and in relation to the periods I accept that claim. I have no difficulty with the claim for future Aids and equipment (section 8) nor with the claim for future travel.[44]That brings me to the question of lost years. There is no doubt that in principle a claimant in this Claimant’s position is entitled to recover the income that he would probably otherwise have received from the Defendant but for his untimely death. I accept Mr Buch’s submission that as I have expert evidence on both his anticipated and expected life expectancy I can accept that as a known period and accordingly the multiplier that Mr Buch has used is appropriate. A proper allowance has been made for 50% for living expenses.[45]The question arose in the course of the hearing as to the impact, if any, of the fact that Mrs Fitzpatrick will in all probability (although of course not inevitably) receive a widow’s pension as an aspect of the Claimant’s civil service pension. Mr Buch made some additional submissions over the short adjournment and in particular referred me to the decision in Pickett v British Rail Engineering Limited[1980] AC 136. It seems to me that there is some useful dicta in the judgment at page 170.[46]At page 169 of the report the Court reviews various objections to an award of damages on the basis of lost years. One of those objections, the sixth objection, was that there is a risk of double recovery in some cases; that both the estate and the dependents would recover damages. Lord Scarman in the lead judgment, having considered all the other objections, came to this view:
"The sixth objection appears to me unavoidable, though further argument and analysis in a case in which the point arose for decision might lead to a judicial solution which was satisfactory. But I suspect that the point will need legislation. However, if one must choose between a law which in some cases will deprive dependants of their dependency through the chances of life and litigation and a law which, in avoiding such a deprival, will entail in some cases both the estate and the dependants recovering damages in respect of the lost years, I find the latter to be the lesser evil."
[47]I have subsequently identified another decision of the Court of Appeal in West v. Versil Ltd. (1996) Unrep. A full judgment is not available but the summary appears to support the submission made by Mr Buch that there is no basis for making a reduction from the lost years calculations in respect of a widow’s pension. Accordingly I accept his submissions and that amount will be awarded in full.[48]I come finally to the claim for future loss of services after death. Mr Buch in his skeleton argument acknowledges I am constrained by the decision Court of Appeal in Phipps v Brooks Dry Cleaning Limited[1996] P.I.Q.R. 100 not to award such damages ina living mesothelioma case. In Andreou v S Booth Horrocks & Sons Limited [2017] EWHC 174 (QB) HHJ Walden-Smith sitting as a judge of the High Court had to wrestle with this issue. The defendant in that case argued that as the Claimant had sought to claim the money now, and no award was permissible, the claim should be dismissed. She did not accept that submission, holding that:
“This is a proper claim that will be made in due course. In the circumstances, while it is clear from the authorities that this is not something that this court can order, given that it has not been agreed between the parties, I will adjourn this part of the claim in order that it can be dealt with post mortem. It would not be right in my judgment for the claimant or the claimant's estate or his widow in due course not to be able to make a claim for something to which he is entitled simply by reason of it having been brought into these proceedings.”
[49]I agree with this reasoning. I will therefore adjourn both this claim and the claim for future medical expenses generally with permission to restore. I recognise there is an interest in achieving finality in litigation but ultimately that has to give way to the primary objective of achieving justice. This Transcript has been approved by the Judge. The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof. The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: court@thetranscriptionagency.com