In February of this year we wrote about the decision of Wolstenholme v Leach’s of Shudehill Limitedarticle here: setting out that the ruling in Mosson v Spousal, that intangible benefits were irrecoverable, had been cast in doubt given the decision in Wolstenholme.  His Honour Judge McKenna in Wolstenholme set out that he was not prepared to follow Mosson as there was a “weight of authority” against doing so.  The conclusion of that article was that the position is now unclear and further guidance was needed.

On 30 June 2017, before Deputy High Court Judge Chamberlain QC, the case of Grant v Secretary of State for Transport [2017] EWHC 1663 (QB) was heard, in which the claimant, widow to Douglas Michael Grant, sought to recover for general damages, the cost of a head stone and the costs of a funeral reception and for future income dependency as well as loss of intangible benefits for the fact her husband would have been the one to carry out the works. 

Mr Justice Chamberlain QC awarded £92,500 in respect of general damages for pain suffering and loss of amenity; this appears to be the highest award for general damages in a mesothelioma case ever.  Mr Grant experienced symptoms for 40 months, an unusually long period for someone suffering mesothelioma.  Mr Grant underwent chemotherapy, sadly with a number of unpleasant side effects including harrowing hallucinations. 

After careful consideration of the weight of the authorities, the judge ruled that it was appropriate to make an award for loss of intangible benefits.  At paragraph 108 of the judgment Mr Justice Chamberlain QC stated:

“… there is a separate reason why an award for services dependency, calculated by reference to the cost of replacement services, may be inadequate to value the loss of the deceased’s services.  A wife whose husband used to do all the minor repair work around the house now has to find and choose the painter, plumber, decorator et al.  And make the arrangements for them to come and do what needs to be done.  These are things she did not have to do before.  The time spent by the claimant in doing them has a pecuniary value.  That was the basis for the awards made by Hamblen J in Beesley and by HHJ McKenna in Wolstenholme.  The difficulty of assessing that value precisely accounts for the modesty of the awards generally made under this head.  It does not, however, transform the award from (permissible) compensation for pecuniary loss to a form of (impermissible) solatium. 

With respect of Judge Garnham, I do not see why the ordinary activities of family members other than the deceased would be less affected if DIY is done by outside contractors than if done by the deceased himself.  Garnham J was no doubt correct to point out that work done by a commercial contractor might be of a better quality than that done by the deceased, but that would not necessarily  be so.  In any event, a services dependency award is, or should be, valued by reference to the cost of replacing the lost services on a like-for-like basis.  There is no reason to assume that such awards generally confer a pecuniary advantage on claimants such as to justify a refusal to compensate for losses, real, albeit difficult to assess – of the kind identified by Hamblen J in Beesley and HHJ McKenna in Beesley and HHJ McKenna in Wolstenholme.“

In this case it was clear that the deceased had carried out decorating, gardening and DIY work around the house.  The judge assessed the loss of those intangible benefits at £2,500. 

The judge also made an award allowing for the recovery of the deceased’s head stone following the decision in Gammell v Wilson but recovery for the cost of a reception was not allowed, stating that:

“It was difficult to suppose that parliament intended to include them within funeral expenses under the Law Reform (Miscellaneous Provisions) Act 1934.” 

20 years prior to his death the deceased had purchased land, with a long term intention of turning it into a business and retail park.  However, the claimant had never acquired planning permission.  Nevertheless, the judge determined that the deceased had “energy, drive and propensity for hard work”, and so came to the conclusion that the deceased would have made a success of the development albeit with the assistance of professional advice. As such it was deemed that he would have added value and compensation was due for that head of loss in principal.  However, the exact figure has yet to be determined as the calculation for head of loss has been adjourned to allow for further submissions. 

What this means for you

With three High Court cases (Beesley, Wolstenholme and Grant) allowing for the recovery of intangible benefits, it appears the tide may be turning on the recoverability of intangible benefits. It’s likely that the loss will be included in future fatal mesothelioma claims.  That is not to say that the sum is automatically due: despite his expertise in admiralty and public law, HHJ Chamberlain (the judge in Grant) is not a specialist in disease, whereas the decision of Mosson remains a reasoned judgment by an expert in disease against the award. Further, even in the event the court deems the head a recoverable one, claimants must still prove that the ‘intangible benefits’ would be properly recoverable on the basis that the deceased would have carried out the works alleged. With this in mind it is still proper to resist claims for intangible benefits while relying on the authority in Mosson.