Devoy v William Doxford & Sons Ltd & Ors

Factual and Procedural Background

The Claimant brought a claim on behalf of the estate of her late husband under the Law Reform (Miscellaneous Provisions) Act 1934 and on her own behalf as a dependant under the Fatal Accidents Act 1976, seeking damages for his death caused by malignant mesothelioma. The deceased had worked as an apprentice marine fitter and turner and later as an engineer, during which he was exposed to asbestos leading to his disease and death in 2007. Liability was not contested, and judgment on liability and causation was entered prior to the Claimant’s substitution in the claim. The current issue concerns the assessment of damages. The Claimant suffers from Parkinson's disease and other disabling conditions and asserts dependency on the deceased for care, which is a significant element of the damages claim. The parties agreed on many heads of claim but disputed the valuation of past and future loss of the deceased’s services. Extensive medical and care expert evidence was heard, along with witness statements from the Claimant and deceased.

Legal Issues Presented

1. What is the appropriate valuation of damages for the Claimant’s loss of the deceased’s care and services under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934?
2. How should the court assess and quantify the past and future loss of services and care the deceased would have provided, considering the Claimant’s medical conditions and care needs?
3. What is the appropriate approach to compensating for the loss of love and affection and general damages for pain and suffering?

Arguments of the Parties

Claimant's Arguments

• The Claimant argued for damages based on the replacement cost of the services the deceased would have provided, relying on expert nursing care reports and medical evidence.
• She contended that the deceased was her primary carer and provided extensive domestic and personal support prior to his death.
• The Claimant submitted that a live-in carer or equivalent care packages should be valued to reflect the loss.
• She relied on authorities supporting awards for loss of dependency based on actual replacement costs of care services.

Defendants' Arguments

• The Defendants accepted liability but disputed the extent and valuation of care and services the deceased would have provided.
• The Defendants’ care expert assessed a significantly lower number of care hours the deceased could have provided, citing the deceased’s back condition and limitations.
• They argued that some care would have been provided by local authority services regardless and that the deceased would not have provided night care or personal hygiene assistance.
• The Defendants suggested that, as the Claimant’s condition deteriorated, specialist care would be required beyond the deceased’s capacity to provide.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully evaluated extensive medical and care expert evidence regarding the deceased's illness and the Claimant's disabilities and care needs. It accepted that the deceased was an attentive and devoted husband who would have provided substantial care and assistance, including domestic tasks and companionship, up until the Claimant’s condition deteriorated significantly. The court rejected the Defendants’ suggestion that the deceased’s back condition limited his ability to care, finding no serious medical evidence supporting this limitation. The court accepted the Claimant’s evidence and the Claimant’s expert’s valuation of the replacement cost of care up to 2013 with some adjustments to reflect the Claimant’s independence and gradual increase in care needs.

For the period from 2013 onwards, the court found that the Claimant’s condition would have worsened to the extent that specialist 24-hour care would be required, beyond the deceased’s capacity to provide. The deceased would have supplemented this care but could not have met the full needs. The court adopted a hybrid approach that combined the expert evidence, recognizing the deceased’s devotion but acknowledging practical limitations imposed by age and the Claimant’s progressive disability.

The court applied established legal principles regarding dependency claims under the Fatal Accidents Act 1976, including the assessment of damages by reference to the reasonable cost of replacing lost services, and the need to consider hypothetical scenarios with appropriate judicial discretion to reflect uncertainty. It also considered awards for pain and suffering, loss of amenity, bereavement, and loss of love and affection, referencing relevant case law and guidelines for malignant mesothelioma.

Holding and Implications

The court awarded damages to the Claimant as follows:

• General damages for pain, suffering, and loss of amenity (including the deceased’s reduced ability to care): £59,000.
• Past care of the deceased: £1,000.
• Miscellaneous and travel expenses: £400.
• Funeral expenses: £3,044.49.
• Bereavement award: £10,000.
• Past financial dependency: £10,588.50.
• Future financial dependency: £33,739.61.
• Past non-financial dependency (replacement care and related costs): £18,700.61.
• Future services dependency (adjusted care costs with multipliers applied): substantial sums totaling several hundreds of thousands of pounds.
• Other future losses including carer’s food, driving allowance, carer’s allowance, chiropody, holiday costs, gardening and DIY services, and equipment: £32,251.80.
• Loss of love and affection: £2,000.

After deducting a prior pneumoconiosis award of £13,997 and adding agreed interest of £1,296.96, the total judgment for the Claimant was £488,026.76 inclusive of interest.

The decision directly compensates the Claimant for the loss of her husband’s care, services, and companionship, reflecting the progressive nature of her disabilities and the deceased’s devoted role. No new legal precedent was established; the court applied well-established principles and case law to the facts of this case.