The last few months have been a flurry of activity for those lawyers dealing with Fatal Accident Act claims and the question of whether intangible benefits are a properly recoverable head of loss.

In the last edition of the Disease Review we wrote about the decision of Grant v Secretary of State for Transport [2017] EWHC 1663 in “Permission Granted: Grant v Secretary of State for Transport: Intangible Benefits Once Again”, in which we set out that the High Court had again ruled on a claim for intangible benefits, in a claimant’s favour.

In July of this year Magill v Panel Systems (DB Ltd) [2017] EWHC 1517 came before His Honour Judge Gosnell sitting in the High Court. The claimant sought awards for loss of love and affection and dependency on the deceased's services. The claim was expressed thusly:

"It is claimed that compensation should be awarded for loss of partner's care and attention and an appropriate award under this heading is £4500 see Bath v Highgate [2004] EWHC 707 (Ch)“.

The claimant later sought to increase this to £5000.

HHJ Gosnell ruled that the decision in Mosson should stand and that the deceased’s widow was not entitled to damages for loss of his care and attention because that loss was covered by the bereavement award. HHJ Gosnell went on to say:

I recognise that these claims have become commonplace but I find myself in agreement with Mr Justice Garnham for the same reasons he gives.

My personal view on the jurisprudential basis of this type of claim is however irrelevant in this case. This is a case where the deceased was unwell at the time he was diagnosed with mesothelioma. He was receiving personal care from the claimant for at least 35 hours per week as he was too unwell to manage without that care. I have already found that his medical condition was such that he was unable to provide services such as DIY, gardening and decorating by 2014 and made no award for the loss of those services. As a consequence of this finding, even if a claim pursuant to Regan v Williamson could be validly made it could not be justified on the facts of this case as the deceased would not have been fit enough to do the various "jobs round the house" which formed the factual foundation for the successful claim made by the claimant in Beesley v New Century Group Ltd.

I have no doubt that the claimant has lost the care and attention of the deceased in the emotional sense and the loss of that cannot be minimised but it does not sound in additional damages because this is exactly the loss that the bereavement award (modest though it is) is intended to compensate for.”

Assessing life expectancy

Somewhat unusually for a disease claim the case also dealt with the proper method for assessing life expectancy. It was argued by the claimant that ‘but for’ the mesothelioma, Mr Magill would have undergone scheduled heart surgery (coronary artery) and he would not have suffered the heart attack and died when he did. There was conflicting evidence on the issue, but the court ultimately accepted the claimant’s argument that the mesothelioma had prevented the surgery and had therefore caused the claimant’s premature death.

The claimant submitted that the deceased having been born on 8 July 1956, his life expectancy would be 25.06 years according to Table 1 of the Ogden Tables, using 0% discount rate. Whereas using 2014 Office of National Statistics data, the resulting life expectancy was 25.5 years. The claimant alleged this was the most accurate current statistical information. HHJ Gosnell notes in his judgment that had some assistance in the form of an expert report from Mr Chinu Patel, who is a consulting actuary and a member of the Ogden Working Party and from Professor Channer a Consultant Cardiologist.

The experts disagreed on whether a “prospective” or “retrospective” approach was preferable. The retrospective approach looks at whether ‘when there are co-morbidities which might mean that it would be appropriate to deviate from the life expectancy of the population’ the result of which would have been to reduce the deceased’s expectation of life by two years because of his coronary artery disease, a further two years because of his diabetes and a further two years to reflect the mild left ventricular failure.

The prospective assessment is one ‘in which the risk per year of a fatal event is calculated and the time taken to reach a 51% chance of the event taking place is taken as the average survival. Many epidemiological studies have calculated the risk of death in association with individual risk factors and when they are combined.’ So that it is possible to estimate the annual risk of a fatal and non-fatal event by multiplying the individualised risk against the background risk in the population. It is also possible to estimate survival from long-term follow up of large cohorts of patients with a particular disease process.

HHJ Gosnell stated at paragraph 51

Whilst I accept from what the experts have told me that both the prospective and retrospective methods of assessment are scientifically legitimate I reach the view that the prospective method is very much dependant on finding data or studies which accurately match the patient concerned. Where this is difficult, the retrospective method would appear to be more appropriate method, accepting as I do that it is very rough and ready method depending mainly on the clinical judgment of the physician making the assessment. The issue in this case then is whether the data relied on by Professor Channer are a close enough match to the deceased to mean that the prospective method of assessment is likely to be more accurate than the retrospective method…

In my judgment, the prospective method of life expectancy can only be preferable to the retrospective method where the data or studies used to make the assessment are as near a fit as possible to the actual medical condition of the Claimant or deceased being assessed. In this case the constellation of the deceased’s symptoms and co-morbidities mean that it is impossible to approach the prospective method of assessment with any real confidence given the material I have considered in the preceding paragraphs of this judgment. The retrospective method of assessment is a rough and ready approach based not upon scientific study but on clinical judgment of experienced and qualified practitioners. I doubt it is a method they use in their clinical practice but it is a genuine attempt to answer a question which lawyers put to them to assist the court in a way it can understand. In this case I prefer the retrospective method of assessment as put forward by Dr Witte for the reasons I have expressed.”

In obiter comments HHJ Gosnell expressed the view that when using the Ogden tables to assess life expectancy he preferred the use of Table 1 “adjusted for the reasons expressed by Mr Justice Cranston in paragraphs 40-43 of his judgment in Smith v LC Windows Fashions Ltd [2009] EWHC 1532 (QB).”.

What this means for you

On intangible benefits the authorities are all High Court decisions, they sit at three for (Beesley, Wolstenholme and Grant) and two against (Mosson and Magill). The His Honour Judge Garnham’s reasoning in Mosson remains sounds and is reflected in the judgment of HHJ Gosnell however the point will remain in dispute until the Court of Appeal hands down a binding decision on the issue.

As for the assessment of life expectancy, this isn’t a point which will arise too often but the decision in Magill lays a useful foundation to calculate the likely life expectancy. The court did not discount the prospective method but did acknowledge that it would only be useful if the data and studies relied upon were ‘as near a fit as possible to the actual medical condition of the deceased’. In this case the studies relied upon were not. The method the court adopted was to take the actuarial figure of the claimant’s death and deduct a period for each co-morbidity, using what was acknowledged to be a ‘rough and ready’ method. This highlights the need for a diligent and forensic approach to calculating the life expectancy of claimants in order to persuade the court to use the more technical prospect approach.