In the recent English High Court case of Catherine Ellen Drake and Tina Starkey (Executrices of the Estate of James Thomson Mill (Deceased)) v Foster Wheeler Limited, the Court ordered the defendant to pay care costs to a hospice which had provided the deceased with residential palliative care in the 23 days leading up to his death from mesothelioma.

This was a noteworthy decision as the hospice did not seek any payment from the deceased’s estate nor from his surviving family members. The basis for the decision was that as the authorities do not preclude compensation being paid for this head of claim, they ought to be paid in the context of a fatal claim.

We suspect that this decision would not be followed in Scotland. There is no basis in the Administration of Justice Act 1982 for a payment of this kind and there is no clear basis for such an award in the common law of Scotland either. Indeed, we would not be surprised were this decision to be appealed as we would have thought that a significant number of mesothelioma victims will end their days in hospices of the kind where Mr Mill passed away.