Garnham J's decision in Mosson v Spousal (London) Ltd [2015] EWHC 53 (QB (http://www.bailii.org/ew/cases/EWHC/QB/2016/53.html), handed down today, contains a number of points of interest in relation to the calculation of damages in fatal claims.

The case was brought by the widow of Mr Mosson, who was exposed to asbestos during the course of his employment in the 1960s and 1970s and subsequently contracted mesothelioma from which he died.  Liability was admitted, although an attempt was made to argue that Mr Mosson had been guilty of contributory negligence by allowing himself to be exposed to asbestos during a period of self-employment.  Although the judge was satisfied (at [10]-[25]) that Mr Mosson was self-employed during the relevant period, he rejected the allegation of contributory negligence because there was no evidence as to the extent of his exposure to asbestos during that period (at [26]-[34]).

Following a review of the evidence and previous decisions at High Court level, the judge awarded £85,000 for pain, suffering and loss of amenity (at [36]-[47]).

So far, so unexceptionable.  However, the case is of particular interest in relation to the judge's decision in relation to a number of comparably modest items which were disputed.

First, some items of funeral expenses were in dispute, namely the cost of a wake, clothing purchased for the funeral and a memorial bench.  Those were all disallowed.  In relation to the case of the wake, Kemp and Kemp para 26-061 states that such costs are not recoverable, citing the first instance decision of Benet Hytner QC in Gammell v Wilson [1979] unreported, July 27th (reproduced in Kemp and Kemp para O2-005).  That decision was followed by Bean J in Knauer v Ministry of Justice [2014] EWHC 2553 (QB) at [15] and Garnham J similarly followed it (at [49]).  It seems doubtful whether it is fair that a reception or wake to provide refreshments to those who have attended the deceased's funeral should not be regarded in 2016 as a legitimate funeral expense, subject as always to the question of reasonableness.

Garnham J went on also to reject the claims for clothing and a memorial bench.  Again, the claim for clothing had been rejected in Gammell and Garnham J followed that decision (at [50]).  Gammell draws a supposed distinction between "funeral expenses" and "expenses consequent upon death".  Whereas that may be a legitimate distinction, it is hard to see why garments bought solely for the funeral and which have no other use could not be regarded as funeral expenses.  Thus a widow's black mourning dress ought fairly to be regarded as a funeral expense; a man's suit should not due to its other uses.

In relation to the memorial bench, there is a long-standing distinction derived from Gammell between tombstones or grave markers which are allowed as funeral expenses, even though they will usually be placed a long time after the funeral, and memorials which are not.  It may be said that this distinction is somewhat arbitrary, but again Garnham J (at [50]) followed Gammell and disallowed the claim.

Garnham J (at [51]) also disallowed a claim for the costs of probate.  He was correct to do so.  Claims for expenses incurred by the estate following death are being advanced with increasing regularity and they are misconceived.  Funeral expenses are the sole exception to the general rule that expenses of the estate consequent on death are not recoverable, as should be clear from the wording of s1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934, which requires that the estate's claim "shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included".  Thus the costs of probate or, more ambitiously, the costs of administering the deceased's estate are not recoverable: see also Harding v Scott-Moncrieff [2004] EWHC 1733 (QB), para 42.  In one case in which I am currently involved, the claimant's litigation friend is seeking a six figure sum for administering the home of the deceased on behalf of the minor claimant.  Such claims are outside the limited right of action conferred by the 1934 Act.

Where Garnham J departed from convention is his rejection of the claim under the Fatal Accidents Act 1976, described as "loss of intangible benefits" as part of the widow's dependency.  Such a head of claim was first recognised in the 1970s in relation to claims by children, initially taking the form of an increase to the award for services dependency and later, in Mehmet v Perry [1977] 2 All ER 529, a separate award.  In the same case, an award was made to the husband.  Since then, awards both to children and spouses have become conventional and are sometimes described as claims for "loss of love and affection".  I have from time to time thought that it was highly arguable that this head of claim cannot properly be said to fall within the notion of a dependency, under which the court is supposed to be reflecting the financial value of the money and services provided to the claimant(s) by the deceased.  It is easier to see how a child's loss of the intangible contribution of a natural parent to his/her upbringing has a very real value which cannot be replaced by a nanny, relative or step-parent, especially in light of the law's long-standing recognition of the innate value of bonds of blood.  However, in the case of an adult, what the court is really awarding under this head is general damages for the loss of a spouse, which is more properly the role of the bereavement award.

It is this argument which was accepted by Garnham J in detailed and persuasive reasoning (at [65]-[80]).  He did not hesitate to depart from cases where reasoned awards had been made under this head.  It is worthy of note that counsel for the claimant did not frame his claim as one for "loss of love and affection" but pointed to supposed advantages in the deceased husband providing services to his wife rather than contractors.  As Garnham J pointed out, DIY has both advantages and disadvantages, including relative competence (more of a compelling factor in certain households, including my own, than others).

This decision can properly be described as ground-breaking and it is to be hoped that the Court of Appeal will give authoritative guidance on when, if ever, this head of claim should be allowed.  For now, defendants should not concede any claim of this type, at any rate when made by a spouse.