IN THE HIGH COURT OF JUSTICE

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Neutral Citation Number [2013] EWHC 2351 (QB)
Case No. HQ12X01853
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Wednesday, 31st July 2013
Before:
HIS HONOUR JUDGE BURRELL QC, SITTING AS A
HIGH COURT JUDGE
B E T W E E N:Patricia Melanie Nicholas
(Executrix of the estate of Doris Timbrell, Deceased)
Claimant
- and -
Ministry OF Defence
Defendant
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NOTE OF JUDGMENT
Handed down on 31st July 2013
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1.
This is a useful (and rare) contested High Court asbestosis quantum authority
where the Claimant beat her own Part 36 offer made under the new regime. It is
also an interesting exercise of the Section 33 discretion, disapplying the
primary limitation period.
Quantum
2.
An award of £40,000 was made for pain, suffering and loss of amenity.
3.
This was a claim made after death. There was no Fatal Accident Act claim
because the death was not caused by asbestosis.
4.
Symptoms of asbestosis developed over only 4 years before death and in the
last year of life, the Deceased developed unrelated oesophageal cancer, the
symptoms of which were dreadful and resulted in her death.
5.
Over the relatively brief period of suffering with asbestosis, disability increased
from 40% to 50%. The significantly worsening disability in the last year of life was
not due to asbestos-related disease.
6.
The Deceased was aged 86 at death.
7.
The Defendant had submitted that the award should be only £15,000 to £20,000.
8.
This authority is likely to be useful when considering the more typical case of
asbestosis causing significant disability over a longer period and resulting in
early death. The Judge in this case specifically took into account the short period
of suffering (overtaken by the unrelated cancer) and the fact that there was no
shortening of life.
9.
The Claimant was also awarded a care claim of more than £7,500.
New Regime Part 36 Offer
10.
The Claimant beat her own Part 36 offer (in the sum of £45,000) made after 1st
April 2013 and so resulting in the application of the new costs provision at Part
36.14(3)(d) CPR and a (welcome) extra 10% on damages.
11.
The new provision is much more generous than just the additional interest over
the period after the offer. It makes a well-pitched Claimant Part 36 offer a much
more attractive proposition.
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Limitation
12.
The claim related to exposure when assembling gas masks during the War in a
factory that was said to be under the control of the MOD.
13.
The Deceased had not brought the claim during her lifetime. She knew she had
asbestosis and had been advised to bring a claim some 4 years before her
death. Her daughter (the Claimant) became aware of this at the same time.
14.
The Deceased made a (successful) claim for IIDB but when she was asked by
her family about a personal injury claim, had not felt able to cope and it was not
discussed with her again.
15.
The family then brought the claim after her death. The children were the
beneficiaries of the estate (there was no widower). By the time proceedings were
issued, the claim was more than 7 years out of time.
16.
The Defendant (belatedly) admitted breach and the judgment is a useful
exposition of the principle in recent authorities of ‘the critical factor’ that is the
effect of the delay on the Defendant’s ability to defend on liability and quantum.
17.
The primary limitation period was disapplied, in large part because the Defendant
was not able to show any prejudice. The particular circumstances of the
Deceased, her age, illness and timidity, were also taken into account, pursuant to
Coad v Cornwall [1997] 1 WLR 189.
31st July 2013
Simon Kilvington
Byrom Street Chambers
[email protected]
0161 829 2100
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