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
--------------------Between :
Patricia Melanie Nicholas (Executrix of the estate
of Doris Timbrell, deceased)
- and Ministry of Defence
Claimant
Defendant
----------------------------------------Mr Simon Kilvington (instructed by John Pickering and Partners LLP) for the Claimant
Mr Adam Farrer (instructed by Treasurer Solicitor) for the Defendant
Hearing dates: 10th July 2013
---------------------
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
.............................
Nicholas v Ministry of Defence
High Court Unapproved Judgment:
No permission is granted to copy or use in court
His Honour Judge Burrell QC sitting as a High Court Judge:
Introduction
1.
The claimant is the daughter and executrix of the estate of Doris Timbrell, the
deceased. The deceased died on 23.11.08. She was then aged 86 years old. During the
war years between 1941 and 1943, she had worked for Baxters of Blackburn in
assembling gas masks and fitting filters into the masks. As a result, she was exposed
to asbestos. On 3rd June 2004, she saw her GP with a chest infection. On 9th June
2004, she was noted to be breathless. She was referred to the Royal Preston hospital
for admission. An X-ray revealed multiple calcified pleural plaques due to asbestos
exposure. A CT scan subsequently confirmed this. She was discharged on 14th June
2004 on Prednisolone, a corticosteroid. In August 2004, lung function tests showed
severe impairment of the gas transfer factor. On 11th November 2004 she was
reviewed and noted to be struggling on stairs through breathlessness. In March 2005
she made a claim for industrial disablement benefit and was examined by the Medical
Board on 10.6.05. In April 2005, a chest X-ray showed bilateral calcified pleural
plaques and pulmonary fibrosis over her lungs. Her symptoms remained relatively
stable for a while but by 2006, her breathlessness was deteriorating and eventually at
times, she had to use an oxygen cylinder. During the last few years of her life, the
claimant, her daughter, shopped, cooked and cleaned for her. In September 2008, she
was showing symptoms of a cancer and losing weight. By October, she had lost 2
stone in weight. Oesophageal cancer was eventually diagnosed. This was unrelated to
the asbestosis and she died from the cancer (not the asbestosis) as referred to on
23.11.08.
2.
It is agreed that she was advised by a doctor that she could make a claim in relation to
the asbestosis on or about 26.8.04 ( see comment from Dr Fairburn, as referred to in
the report from Dr Rudd, consultant chest physician at Tab 2 TB) and that is the
agreed date of knowledge for limitation purposes. Thus the claim was statute barred 3
years later on 26.8.07. This is 1 year and 3 months before her death. On 26.8.04, her
daughter, the claimant was with her when she received this advice. After her death,
the claimant took legal advice (in February 2009) and after the inquest in March 2009
which held that death was due to industrial disease (in fact, it is agreed that in
accordance with Dr Rudd’s opinion, death was due to the oesophageal cancer), the
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Approved Judgment
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claim was first notified to the defendant on 4.6.09. Solicitors for the claimant began
collecting evidence and instructing an expert. Proceedings began (claim form issued)
on 14.5.12. The claim is thus statute barred and the claimant seeks relief pursuant to
S33 of the Limitation Act 1980 to override the limitation period. Although the
defendant can point to no prejudice as a result of the delay, it is argued that it would
inequitable to apply the dispensations provisions of the Act, bearing in mind all the
circumstances of the case.
Delay
3.
As the deceased died after expiry of the limitation period the special time limit for
actions in respect of personal injury (accruing for the benefit of the estate under Law
Reform (Miscellaneous Provisions) Act 1934) referred to in S11 of the Limitation Act
1980 does not apply. This would have been 3 years from the date of death. There is
delay therefore from date of expiry of limitation period on 26.8.07 (3 years from
agreed date of deceased’s knowledge) and 14.5.12 when proceedings were issued. A
moratorium period was agreed between solicitors for both sides from 23.11.11 to
23.5.12. Accordingly the delay from expiry of limitation period to first day of
moratorium is a period of 4 years 3 months approximately i.e. 26.8.07 to 23.11.11.
Part of the overall delay is due to the deceased taking no action from her date of
knowledge on 27.8.04 and part is due to the claimant failing to commence
proceedings after date of death on 23.11.09. The overall period of delay from date of
knowledge to date proceedings commenced less moratorium period is 7 years 3
months approximately (moratorium period being approximately 6 mths to
commencement of proceedings).
Prejudice
4.
As referred to, the defendant can point to no prejudice as a result of the delay or any
part of the delay whatsoever, save to have lost the benefit of the limitation defence if
the application for dispensation is successful. Subject to the limitation defence,
liability and causation are admitted.
Section 33 of the 1980 Act
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Approved Judgment
5.
S33(1) of the Act gives the court a discretion to override the normal time limits in
circumstances where it appears to the court that it would be equitable to allow the
action to proceed, having regard to the degree to which (a) the provisions of S11 or
11A or 12 of the Act prejudice the claimant or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or
any person whom he represents; S33(3) requires the court to take into account all the
circumstances of the case when exercising the general discretion in deciding whether
it would be equitable to allow the action to proceed including in particular:
i)
the length and reasons for the delay on the part of the
deceased and claimant;
ii)
the effect of the delay on the cogency of the evidence;
iii)
the conduct of the defendant after the cause of action arose;
iv)
the duration of any disability of the claimant arising after
the accrual of the cause of action;
v)
the extent to which the claimant acted promptly and
reasonably once he knew the breach of the defendant causing
the injury might be capable at that time of giving rise to an
action for damages;
vi)
the diligence on the part of the claimant in obtaining expert
advice;
6.
In addition to S33(1)(a) and (b) the three relevant criteria in S33(3) (in addition to the
overall discretion) relate to (a), (b) and (e). In relation to (e) as referred to, the
defendant can point to no prejudice caused by the delay affecting the cogency of the
evidence. Liability and causation are agreed, subject to the limitation defence. In
Approved Judgment
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relation to (a) Mrs Nicholas, the claimant states in her witness statement that her
mother did not feel up to bringing a claim. The claimant’s son persuaded her to put in
a claim for industrial injuries disablement benefit. The son worked for the DHSS and
knew about the procedure. He put the claim in on her behalf. The deceased did not
have to do much (save no doubt to sign forms) and no lawyers were involved. As to
the prospect of suing the defendant, Mrs Nicholls said in cross examination that her
mother (who was a reserved timid lady) wanted to pursue a case as she felt hard done
by the defendant in causing her to contract the illness but felt she was too ill to
actually instruct solicitors, provide statements and see medical experts. Mrs Nicholas
said the deceased was becoming increasingly breathless and would become distressed
(and her face would change colour) if the possibility of pursuing a claim was
mentioned. She felt it was unfair to push her given the extent of her symptoms and
was obliged to leave it at that. Her main concern was the quality of her mother’s life.
She said she did not take legal advice at that stage as she was too involved in the care
of her mother, which was “all consuming”. She referred to her mother effectively
feeling bitter that she had done her bit for the war effort and this (i.e. the onset of
asbestos) was how she was rewarded. Despite taking the view that the defendant
should be pursued in a court action, she said her mother was simply not up to it (her
mother said so herself) and this was entirely due to the asbestos symptoms themselves
which left her weak through increasing breathlessness and significant physical
restriction. She said her mother became upset when it (a possible claim) was
mentioned and was distressed at the thought of what it would entail. It is agreed this
part of the criteria involves a subjective test. (Coad v Cornwall [1997] 1WLR 189).
This is why the deceased did not act promptly or seek expert advice. (S33 (3) (e) and
S33 (3) (f)).
Approved Judgment
7.
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As to the claimant’s own delay, as referred to, after the death of her mother, she took
legal advice and the claim was pursued with the letter of claim going out on 4.6.09.
The claim commenced on 14.5.12. Over that period solicitors for the claimant were
dealing with the matter. They were no doubt collecting the evidence upon which this
type of claim depends.
Findings
8.
It is the effect of the delay on the defendant’s ability to resist the claim on the merits
which is of paramount importance. (Hartley v Birmingham City District Council
[1992] 1WLR 968). In Cain v Francis [2009] QB 754, this criterion was described as
“the critical factor”. In EB v Haughton [2011] EWHC 279 (QB) it was said that
although lack of prejudice does not “trump” all other considerations, it is a factor to
be given considerable weight.
9.
Although the defendant agrees it has suffered no prejudice, it is argued that it is
simply not fair (not equitable) to disapply the limitation period given the deceased’s
clear decision not to issue proceedings when she had all relevant knowledge. Mr
Farrer, for the defendant, refers to the claimant as benefiting from a “windfall” if the
application is successful. He has argued that if the injured person has decided not to
pursue the claim, then that should be an end of it. In my judgment that is simply
wrong. The legislation obviously envisages a myriad of situations where it could and
would be equitable to allow proceedings to be pursued outside the limitation period. It
is fact specific. If the law allows the estate to benefit from damages awarded to a
deceased person as a result of a defendant’s tort, (as it does) then the “windfall”
argument has no merit.
Approved Judgment
10.
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It is important to remember that the decision not to issue proceedings was directly
related to the effects of the asbestos exposure which is admitted to have been the
defendant’s fault. They caused the very condition which the deceased said made her
too ill and disabled to contemplate proceedings. I do not think it would be right to
allow the defendant to take advantage of its tortious acts, bearing in mind that the
delay has caused no prejudice to the cogency of the evidence - liability and causation
being admitted. The reality was that the deceased wanted to sue but was of the view
that she was too ill to do so. Given her age and the nature of her symptoms, that is
understandable. It is to be noted from the medical report prepared by Dr Rudd (TB
2/7) that her respiratory disability due to asbestosis in 2004/5 was 40% (using the
Coal Miners’ Respiratory Disease Litigation Disability Rating Scale 1999) increasing
to 50% by the end of 2005/beginning of 2006. That is very significant disability.
11.
Although there was further delay from death to issue of proceedings, for a large part
of that time, solicitors for the claimant were pursuing the matter and the defendant
had known of the claim from 4.6.09. There is no suggestion on the part of the
defendant that the claimant’s solicitors have been negligent. In any event, I bear in
mind the dicta in Roberts v The Commissioner of Police of the Metropolis [2012]
EWCA Civ 799, where Patten LJ said at para 11, “..Where no such prejudice exists
then the fact that the claimant may have an alternative right to recovery in the form of
a claim against his solicitors for negligence is unlikely, in my view to be
determinative..”
12.
The discretion is a general one which has to be exercised to achieve a result which is
fair and just between the parties having regard to the circumstances set out in S33 and
all other relevant circumstances. There being no prejudice to the defendant in the
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overriding of the limitation period, a fair trial on quantum is possible. The
requirement to show prejudice is of course by no means an overriding one but it is
obviously very important. As to the loss of the limitation defence being prejudice in
itself, it has been held in previous cases that this is balanced by the prejudice to the
claimant were the dispensation provisions not to be applied.
13.
In all the circumstances therefore, for the reasons set out above, I take the view that it
would be equitable to allow this action to proceed and I am prepared to direct that the
limitation provisions of the 1980 Act should not apply to the action, pursuant to S33
(1).
Quantum
Pain, Suffering and Loss of Amenity
14.
Unusually, the parties have failed to reach agreement on this loss. Mr Kilvington, for
the claimant puts the bracket for this award at between £50,000 and £60,000. He
argues that the appropriate Judicial College (formerly JSB) Guidelines for the
Assessment of General Damages in Personal Injury Cases are at Chapter 6 (C) (c) of
the 11th edition- Asbestos-Related Disease, namely between £34,300 and £75,600. Mr
Farrer argues for a bracket between £15,000 and £20,000. He submits that the fact
that the deceased did not actually die as a result of the asbestos is an important factor
to bear in mind and that the Guidelines for Asbestosis-Related Disease where awards
exceed £50,000 necessarily assumes death was caused by the disease. I do not think
that can be right. Obviously any loss of expectation of life will be a feature to take
into account (perhaps to a significant degree) in any asbestosis case but the mere fact
that death does not occur as a result does not of itself take the bracket to the lower
awards at Chapter 6 (C) (d) of between £27,450-£56,000. It all depends on the extent
of the pain, suffering and loss of amenity.
Approved Judgment
15.
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I have referred to the deceased’s respiratory disability being 40% progressing to 50%
by the latter part of 2005. It was in early June 2004 that her symptoms began. By
November 2004, she was struggling on stairs. By June 2005, her walking distance was
400 yards at a slow pace due to breathlessness. There were florid basal crackles over
her lungs. By August 2005, she could walk about 100 yards and manage stairs only
slowly. From about the spring of 2008, the symptoms from the oesophageal cancer
were starting to impact. She had been requiring increasing help from her family. Over
those last 4 years or so, her quality of life was significantly compromised and she was
very limited in what she could do. She had infections and coughing bouts lasting
some days. She used an oxygen cylinder. She had her shopping, cleaning and cooking
done for her. She required help with bathing during the last few years before her
death. She was on various medications including steroids. She had various tests and
investigations and pain in the back. She could not walk uphill. She lost her
independence.
16.
In my judgment the appropriate JC bracket is (C) (c) namely:
“Asbestosis, causing impairment of the extremities of the lungs so that oxygen uptake
to the blood stream is reduced. In the early stages the disease may be symptomless but
progresses to cause severe breathlessness. Mobility is likely to become seriously
impaired and quality of life reduced. Respiratory disability of between 10 and 20%
will probably attract an award in the region of £50,000.” (bracket) £34,300 to
£75,000.
17.
I have been referred to a number of cases. Some have been referred to in Mr Farrer’s
skeleton. While all were helpful to some extent, I mean no disrespect to this attempt
to help me when I say many were not reasonably comparable. I have however taken
account of those cases in so far as I can. I have also considered the case of Trevor
Martin Horsley v Cascade insulation Services Limited, C & D (Insulation Operations)
Limited, Pinnacle Services Limited [2009] EWCH 2945 (QB) - a decision of Mr
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Justice Eady. Again, although this case was more helpful, it too can only provide
limited direct comparison.
18.
It is right however to take into account the fact that there was no shortening of life
caused by the disease as the deceased ultimately died of cancer. In my judgment, an
appropriate award for pain, suffering and loss of amenity is £40,000.
Care and Assistance
19.
Mr Kilvington refers to Dr Rudd identifying the need for increased help during the
deceased’s last few years as being due to the asbestosis. It is accepted that increased
care from the spring of 2008 is attributable to the unrelated oesophageal cancer.
Counsel therefore argues for a figure of £12,810 after applying a 25% discount to
reflect the gratuitous nature of the care. This would be £17,080 gross. Mr Farrer
argues for a net figure of £1,934.
20.
Mr Kilvington submits a gross hourly rate of £10 is appropriate. He contends for 2
hours pw between 2003 and the end of 2005; 3 hours pw for 2006; 5 hours pw for
2007 then 3 hours pw from January to September 2008 and 5 hours pw for October
and November 2008. This is further elucidated at TB 6/3 - the claimant’s schedule.
21.
Mr Farrer says a reasonable hourly rate would be £5.50 gross – net after 25%
deduction is £4.13. He also contends that as the deceased was an elderly lady, she
would have been likely to have required some care and assistance in any event
between the ages of 83 and 86. He submits that for a period of 3 years, the first year
should reflect 2 hours of care per week, the second year, 3 hrs of care per week and
the third year, 4 hours of care per week.
Approved Judgment
22.
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I deal with hours first. Mrs Nicholls said she (with family help) would clean for the
deceased, cook for her, shop for her, deal with her personal hygiene, transport her to
various places and “that she tried to do everything she could” for her. The deceased
would also spend large amounts of time either at Mrs Nicholas’s home or the home of
Mrs Nicholas’s daughter. When she was not there, Mrs Nicholas said the deceased
would be looked after in her own home. In her words it was “quite all consuming.”
Mrs Nicholas also said she changed her work hours so as to provide this level of care.
She refers to her care at TB 4/4 and paras 13-18 of her witness statement. I accept all
that evidence. It was not really in dispute.
23.
The two leading cases in relation to the quantification of gratuitous care are
Housecroft v Burnett [1986] 1 All ER 332 and Evans v Pontypridd Roofing Ltd [2001]
EWCA Civ 1657. The law does not lay down any dogmatic rules regarding this
assessment of loss. Judges are given a wide discretion to select the method of
calculation most appropriate to the facts of the case. I bear in mind that the care of the
deceased was provided during anti social hours, evenings, weekends and bank
holidays and that should be reflected in the rate selected. An aggregate hourly rate is
therefore appropriate. It is common for care experts to use Spine Point 8 of the NJC
rates as being appropriate i.e. rates applicable to home helps or companions. These
were £8.43 to £8.98 per hour throughout the relevant period. Actual commercial rates
are likely to be in excess of those rates, and perhaps nearer to £10 per hour for
gardening/housekeeping/DIY type work.
24.
In my judgment, the Spine Point 8 rates are appropriate to use. After the 25%
discount, and taking an average between the two rates, this works out at £8.70 per
hour which is £6.50 approximately after 25% deduction. As to number of hours
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bearing in mind the extent of the deceased’s disability and the evidence of Mrs
Nicholas but giving some credit for the fact that the deceased would no doubt have
had some help from her daughter and family in any event, for the period from 2003/4
to end 2005, I assess reasonable care provision at approximately two years at 2 hours
pw; 208 hours. For the year 2006, I would assess as reasonable, one year at 3 hours
pw; 156 hours. For the year 2007, I would assess 4 hours pw as reasonable; 208
hours. Between January and end of September 2008 but bearing in mind the cancer
symptoms had started from about the spring of 2008, I would allow for 2 hours per
day/14 hours pw; 10 mths @ 14 hrs pw which is 606 hours. That is a total of 1,178
hours @ £6.50 per hour. The total sum is £7,657. By the end of September, it is clear
that her cancer symptoms had subsumed her asbestosis symptoms and I do think any
further care relative to the asbestos can be justifiably claimed.
25.
As to miscellaneous expenses, although there no doubt were some, there has been no
evidence to help me on this and so I am not in a position to award any sum- although
it would have been very modest in any event. Counsel will no doubt be able to agree
interest on these sums.