Neutral Citation Number:  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 Draft 16 February 2016 07:59 Page 2 Approved Judgment Double-click to enter the short title 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 Double-click to enter the short title 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 Double-click to enter the short title 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  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. Double-click to enter the short title 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  1WLR 968). In Cain v Francis  QB 754, this criterion was described as “the critical factor”. In EB v Haughton  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. Double-click to enter the short title 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  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 Approved Judgment Double-click to enter the short title 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. Double-click to enter the short title 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  EWCH 2945 (QB) - a decision of Mr Approved Judgment Double-click to enter the short title 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. Double-click to enter the short title 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  1 All ER 332 and Evans v Pontypridd Roofing Ltd  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 Approved Judgment Double-click to enter the short title 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.