Neutral Citation Number: [2009] EWHC 3166 (QB)
Case No: HQ 08X04099
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/12/2009

Before:

THE HONOURABLE MR JUSTICE MACKAY

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Between:

	JUNE FLEET (WIDOW AND EXECUTRIX OF THE ESTATE OF MICHAEL FLEET DECEASED (CLAIMANT)	Claimant	
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	ROY FLEET	Defendant	
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Mr. F Burton Q.C. (instructed by Irwin Mitchell LLP) for the Claimant
Mr. S Snowden (instructed by DWF LLP) for the Defendant

Hearing dates: 8 October 2009
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Judgment

Mr Justice Mackay: 

1.	This is an assessment of damages resulting from the death of Michael Fleet from mesothelioma.  The parties’ assessment of the likely time needed was one day, which struck me as ambitious but achievable. In the event the matter was listed for hearing at 2 pm and only an afternoon was available.  The parties did not want the matter to be adjourned and asked me to decide such issues as time permitted and which might assist resolution of the overall claim.
2.	I therefore heard evidence and argument on the issues I set out below.  If that does not result in agreement the residual issues should be referred back to the Senior Master, from whom this assessment came, for decision by him.
PAIN SUFFERING AND LOSS OF AMENITY
3.	I had three medical reports from Dr Rudd to help me with this issue,   a witness statement made by the deceased in his life time dated 22 January 2007 and one from his wife, as well as her evidence in Court.  	
3.	The deceased was a healthy man born on the 7 March, 1951 who first suffered from symptoms of breathlessness in October 2005.  Although a hard worker he gave up work immediately and never returned to it. He died from the consequences of a malignant mesothelioma on 9 August, 2007 therefore some 22 months or so after the symptoms first showed themselves.
4.	In the early stages the fluid was drained from his lungs and he underwent an attempted pleurodesis.  Malignant mesothelioma was diagnosed by histology and he underwent radiotherapy in January and February of the following year, declining chemotherapy.  He was given medication for anxiety. Bar a little shortness of breath and tiredness he was relatively well in the summer of 2006 and able to go abroad for a holiday.  This persisted until September 2006 when his symptoms became worse.
5.	By April, 2007 he was beginning to lose the use of his right arm, which remained a problem until his death.  This condition worsened and was diagnosed as brachial plexus infiltration by the tumour. He is described as suffering from uncontrolled pain and morphine was prescribed for him which he used more or less throughout the rest of his illness.  His arm was swollen, painful and weak and the evidence of his wife which I accept is that sometimes the pain was so great it made him cry.  Dr Rudd with his great experience of this disease said that the degree of pain and suffering in this case, with increasing swelling pain and weakness in his right arm due to involvement of the nerve supply by the tumour, was greater than average.  He himself as his witness statement showed suffered great anxiety about the future of his wife, she being eight years older than he was and he having commitments to a mortgage and an unpaid tax bill.
6.	 The Judicial Studies Board guidelines suggest that as at June 2008 the bracket for general damages for pain and suffering for this disease is from £52,500 to £81,500.  I use this for general guidance and I have read with benefit the recent decision of Hamblen J in Beesley v New Century Group [2008] EWHC 3033 (QB).
7.	Although there is a tendency to assess general damages in the case of this disease by reference principally to the duration of the fatal symptoms Mr Burton QC for the Claimant rightly argues that it is the quality of life over this time that ought to be the critical factor.  Here there is the severe complication, in addition to the inexorably increasing respiratory disability, of the useless and painful right arm graphically described by Mrs Fleet in her evidence.  The Claimants say the general damages here should be at or near the top of the range namely £80.000.  The defendant suggests £65,000.  I assess them at £77,500.
PRE-TAX EARNINGS OF THE DECEASED FROM OCTOBER 2005 TO TRIAL

8.	From the evidence I have heard and accept the deceased was a hard working and skilled man who travelled daily to Essex to work at his trade as a ceiling fixer, often working seven days a week.  He had every incentive to maximise his earnings for the reasons I have already indicated.  Though he was accepted by the Inland Revenue as a self employed man he had to all intents and purposes one principal employer the EAC Group of Companies Ltd based in Essex and its contract Director Mr Clark gave evidence to me.
9.	He said that Mr Fleet worked regularly for the company for the thirteen and a half years up until his final illness and he had been with them from the beginning.  He was very good at his job and “one of the better guys that we had”.    The company was in a good way of business with a turnover of £4,000,000 or so and it installed suspended ceilings, partitioning and dry lining.  Mr Fleet was a Senior Site Operative who worked on the installation of such materials with an element of overseeing.  He could possibly have had a managerial role in the future as a Project Manager at £42,500 per year.
10.	The basic rate that the company paid, he said, was £750 per week but that could increase to £1000 or £1500 depending on the availability of work.  As he put it “I’d put Mike at the £1250 to £1300 mark”.  However he accepted that rates are harder to get in this day and age, although this year was better than last, and he said that they were never not able to give him work when he wanted it and he worked for them as much as he could.
11.	He thought that the pattern of work had been fairly constant between 2003 and 2005 and the basic rate had been static for the last three years.  All the men are paid a price for the job and what they earn will depend on how much they do.  To increase their pay they must increase their productivity.  His business had stayed level over the last three years but has not gone down even though things are tougher.
12.	So far as what is known about the deceased’s earnings he produced accounts with the help of an accountant and his wife kept the books.  She said and I accept that he declared all his earnings and did not hide any part of them.  The main source of earnings was EAC but he did some additional work at weekends for a company called Concept from which I have no evidence but of which Mr Clark appeared to have heard as being a company still in business in this field.
13.	There are three periods for which there is hard data.  For the years ended 8 May 2003 and 2004 his gross turnover was £34,244 and £35,367 respectively.  After deduction of business expenses which included a notional salary for his wife’s services his net profit before tax for those two years was £25,204 and £28,205 respectively.
14.	The other piece of evidence is a Trading and Profit and Loss Account for the period ending 14 October, 2005 (75 weeks).  The deceased in fact stopped work on the 1 October, 2005.  I accept it would be right to treat this as 73 week period in order to get at the lost earnings to the date the deceased stopped work.  The annualised figure would be gross turnover of £36,200 or a net pre-tax figure of £27,748.
15.	Therefore the approximate average annual pre-tax earnings figure in the three years prior to the deceased ceasing work seems to be to me on that basis some £27-28,000.
16.	The Claimants’ schedule takes the figures for the years to May 2003 and 2004 and assumes a year on increase of 3.279 per cent which was the increase in the gross figure in those two years and applies it to all future years.  The problem with this as it seems to me is the evidence of Mr Clark, and the fact that it gives a pre-tax profit for the year ending May 2005 of nearly £30,000 which seems to me not to be supported by the established figures which I have set out.
17.	Mr Burton QC relies as a cross check on the possibility that given the evidence of Mr Clark he could have earned about £1250 a week.  That is undoubtedly a possibility but cannot to be stated to be more likely than not. I believe a third approach to this case would be to say  that as at the date of retiring from work the deceased’s net pre-tax income would have probably have been £27,750, and that  would have increased by about 2.5 percent per annum due to increased working on his part. Some allowance it seems to me should be made for the value of the benefits a self employed man is allowed. Thus  a fair  estimate – and complete certainty can never be achieved in a case such as this – is that the probable average annual pre-tax profit figure throughout the period between his retirement through ill-health and trial would have been £29,000 less tax and national insurance which I leave to the parties to calculate.
         FUTURE LOST EARNINGS DEPENDENCY MULTIPLICAND
18.	This covers the period from the trial to notional retirement age of the deceased at the age sixty five.  In my judgement this should be based on a current pre-tax profit of £30,000 per annum to which should be added some small amount for these two possibilities.  First future improvement in the daily rates due to recovering prosperity in the building trade; second  increased productivity obtained by the deceased anxious as he was to met his goal of providing a proper pension for himself and importantly his wife.  She is now 66 years old and he would now have been 58.  There was also a chance of a supervisory role or of earning the figure mentioned by Mr Clark which cannot be discounted and if taken would lead to gross earnings as high as £60,000 if he decided to put in the extra effort.
19.	For these reasons the right figure for the multiplicand from trial to notional retirement date is one of £32,000 p.a. before tax.
DISCOUNT FROM THE ACTUARIAL MULTIPLIER
20.	There is a dispute about the extent to which the actuarial multiplier for dependency should be reduced for risks other than death, that is to say loss of employment, sickness and ill health and the like.
21.	This is traditionally measured by reference to Table A in the Ogden Tables and depends on the age and employment status of the life in question.  But  the notes to the tables themselves say:-
“Tables A to D include factors up to age 54 only. For older ages the reduction factors increase towards 1 at retirement age for those who are employed and fall towards 0 for those who are not employed.  However where the claimant is older than 54 it is anticipated that the likely future course of employment status will be particularly dependant on individual circumstances, so that the use of factors based on averages would not be appropriate.  Hence reduction factors are not provided for these older stages.”
22.	This explains why Table A runs out at an age at date of trial of 54 years.  I have already recited the evidence of Mrs Fleet and Mr Clark, to the effect that this deceased had a long history of employment with the same employer which is in a sound way of business and he was highly motivated and well thought of.  I am not attracted to the defendant’s rather mechanistic “straight line” argument to cover the years 54-64 resulting in a discount of some 80 per cent of the multiplier.  Mr Burton concedes there must be some reduction for the chances of life such as injury and illness but I can safely put aside any significant risk of unemployment.  I agree with his argument and that the reduction in this regard from the actuarial figure should be no more than 10 per cent.
 REDUCTION FROM CARE COSTS.
23.	Mr Burton challenges this on the basis that Mrs Fleet gave up work entirely to look after husband and he says aggregate rates have been used.  The 25 per cent deduction is well established in case law and practice and can in my judgement be called conventional, only to be displaced, perhaps,  in a case where the care gratuitously provided by the loved one consists of advanced and skilled levels of care which is in fact worth more than the notional commercial cost.  I think a 25 per cent reduction from this head of damage is appropriate.
         CLAIM FOR “SPECIAL CARE”
24.	This is sometimes called the Regan v Williamson head of damage.  There is no doubt that it is increasingly awarded in the form of modest sums in these cases.  Hamblen J gave £2000 in the Beesley case to which I have referred.  Although in its origin it was an attempt by the courts to value the services of a mother or a father to a child over and above the commercial cost of replacing him or her, it has sometimes been extended to cases involving spouses. That should not be an automatic extension in my view. The feature of this case that I think justifies an award is that Mrs Fleet was considerably older than her husband and would as the years have gone on needed more than usual care which I have no doubt he would have been happy to provide and provided extremely well.  I think £2,500 is appropriate to award under this head.
	   SERVICES DEPENDENCY
25.	This is claimed based on a multiplicand of £1500 p.a.  I do not understand the multiplier to be controversial.  The defendant contends for between £750 and £1000 per annum as a “more conventional sum” than the £1500 sought by the Claimant.  The evidence on this issue is that Mr Fleet did all the DIY in the house and had in the past installed a new bathroom according to his wife.  He was a skilled man albeit he was busy and worked long days and sometimes long weeks.  He also said that he had plans to redecorate the house, and Mrs Fleet said that the living room now needs redecoration; though she could do some of the preparatory work, and did do so when her husband did the work, she could not in my judgement be reasonably expected to fill the gap left by him 
26.	Equally, there is considerable garden at the house which Mrs Fleet tends but she cannot manage the trimming of the trees a screen of which separates the house from its neighbours and which has to be kept in order, or cut the grass.
27.	I believe I am justified in saying that I can take into account the general level of awards under this head of damage from past experience.  It would be dismal if experts had to be called to say how much it costs to mow a lawn or paint a room; after all judges do have some experience of that kind of activity and what it cost  to buy it in the market place.
28.	I see nothing wrong with the figure of £1500 per annum claimed by the plaintiff and I think that is the right sum.
29.	I hope that the findings above lead to a resolution of this claim.  If they do not the matter should be referred back to the Senior Master for his final assessment of any outstanding issues which the parties cannot agree.