Mosson v Spousal (London) Ltd

Factual and Procedural Background

This claim arises from the death of the deceased on 19 January 2014 from malignant mesothelioma, contracted due to asbestos exposure while working for the Defendant, formerly known as Company A, between 1963 and 1964. Primary liability has been admitted by the Defendant, and judgment for damages has been obtained, but the Defendant alleges contributory negligence and seeks a reduction in damages. Negotiations have resolved some heads of claim, leaving several issues for determination, including contributory negligence and various heads of damages such as pain, suffering, funeral expenses, probate costs, loss of earnings, bereavement, and dependency losses. The court heard limited oral evidence from the Plaintiff and considered witness statements and a deposition from the deceased. Submissions were made by counsel for both parties.

Legal Issues Presented

1. Whether the deceased was contributorily negligent in relation to asbestos exposure during his self-employment.
2. The appropriate award for damages for pain, suffering, and loss of amenity.
3. The recoverability and extent of funeral expenses.
4. The recoverability of probate costs.
5. The entitlement to past loss of earnings and the basis for calculation of future loss of earnings.
6. The appropriate bereavement award under the Fatal Accidents Act 1976.
7. The valuation of loss of services dependency.
8. The validity and amount of any award for loss of intangible benefits.

Arguments of the Parties

Appellant's Arguments (Defendant)

• Alleged contributory negligence by the deceased during his self-employment period, contending that he breached a duty of care owed to himself in relation to asbestos exposure.
• Argued that damages for pain, suffering, and loss of amenity should be lower, suggesting an upper limit of £75,000.
• Disputed certain funeral expenses, specifically costs associated with the wake, funeral attire, and a memorial bench.
• Denied the recoverability of probate costs.
• Agreed to the bereavement award figure previously agreed by the parties (£11,800), resisting an increase to the statutory figure.
• Challenged the claim for loss of intangible benefits as not a valid head of claim.

Appellee's Arguments (Plaintiff)

• Denied contributory negligence, emphasizing the lack of evidence on the circumstances of asbestos exposure during self-employment.
• Asserted that damages for pain, suffering, and loss of amenity should be at the higher end of the Judicial College Guidelines, proposing £95,000.
• Claimed that funeral expenses should include costs of the wake, funeral attire, and a memorial bench on the basis of social obligations.
• Claimed probate costs of £1,010 as properly recoverable expenses.
• Sought the statutory bereavement award of £12,980 rather than the lesser figure previously agreed.
• Claimed loss of services valued at £5,000 per annum with an appropriate multiplier, and an award of £2,000 for loss of intangible benefits, relying on case law supporting such claims.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Williams v University of Birmingham [2011] EWCA Civ 1242	Test for breach of duty in asbestos exposure cases; reasonable foreseeability of risk and state of knowledge at the relevant time.	Applied to determine that without evidence of degree of exposure, contributory negligence could not be established against the deceased.
Berol Badger v MOD [2005] EWHC 2941	Approach to assessing contributory negligence; consideration of extent of claimant’s responsibility and blameworthiness.	Referenced to explain difficulty of applying contributory negligence absent evidence of exposure circumstances.
Knauer v Ministry of Justice [2014] EWHC 2553	Recovery of funeral expenses and related costs.	Followed to disallow costs of wake, mourning clothes, and memorial bench as unreasonable funeral expenses.
Dennis v London Passenger Transport Board [1948] 1 All ER 779	Subrogated claims and recovery of sick pay as damages.	Applied to allow recovery of sick pay paid by former employers, held on trust for them by the claimant.
Beesley v New Century Group Ltd [2008] EWHC 3033	Recognition of awards for loss of intangible benefits in fatal accident claims.	Discussed but ultimately the court declined to make such an award in this case.
Fleet v Fleet [2009] EWHC 3166	Consideration of claims for "special care" or intangible benefits in fatal accident claims.	Referenced in discussion of intangible benefits but the court rejected additional award here.
Gammell v Wilson [1982] AC 27	Limits on recoverable funeral expenses, specifically disallowing costs of wakes and mourning clothes.	Followed to disallow such funeral expenses in this case.
Regan v Williamson [1976] 1 WLR 305	Basis for awards for loss of intangible benefits for services provided out of love and affection.	Referenced in argument but court declined to award damages under this head.
Mehmet v Perry [1977] 2 All ER 529	Recognition of separate awards for intangible benefits in fatal accident claims.	Referenced but the court declined to follow this approach in this case.

Court's Reasoning and Analysis

The court first considered the allegation of contributory negligence. It applied the modern "multiple factor" test to determine the deceased's employment status during his self-employment periods and found that the deceased was genuinely self-employed. The court examined conflicting evidence about asbestos exposure during self-employment, preferring contemporaneous claim forms over a later witness statement, concluding that the deceased was exposed to asbestos while self-employed with one company. However, there was insufficient evidence about the circumstances and degree of exposure to establish contributory negligence against the deceased. The court relied on the principles established in Williams v University of Birmingham regarding foreseeability and breach of duty, requiring evidence of exposure degree, which was lacking.

On damages for pain, suffering, and loss of amenity, the court reviewed medical reports, witness evidence, and relevant case law and guidelines. It found the deceased suffered severe pain and impairment over an unusually long period but noted the disease did not involve the peritoneum, and the deceased retained some quality of life until late in his illness. Accordingly, the court fixed general damages at £85,000, within the upper half of the relevant bracket.

Regarding funeral expenses, the court disallowed costs for the wake, mourning clothes, and memorial bench, following binding authority that such expenses are not recoverable as reasonable funeral expenses.

The court rejected the claim for probate costs, finding no statutory or other basis for their recovery under the 1934 Act.

The past loss of earnings claim was allowed in full, with the court adopting established authority that such amounts paid by third parties should be recovered and held on trust for those parties.

For bereavement damages, the court held that the statutory amount of £12,980 applied, rejecting the lesser figure agreed earlier as an error.

The court determined the deceased would have worked until age 70 but for the mesothelioma, based on his intention, ability, and medical evidence, and thus future loss of earnings should be calculated accordingly.

In assessing loss of services, the court found the claimant's estimate excessive and lacking commercial valuation evidence. It allowed a reduced annual sum with a lower multiplier to reflect the value of services the deceased would have provided.

The court rejected the claim for loss of intangible benefits, reasoning that the award for loss of services already accounts for the value of those services and that intangible losses are more appropriately compensated through bereavement damages. It found no proper legal basis or exceptional circumstances to justify a separate award.

Holding and Implications

The court's final rulings are as follows:

• Contributory negligence allegation rejected: The Defendant failed to prove the deceased breached a duty of care to himself during self-employment exposure to asbestos.
• General damages for pain, suffering and loss of amenity awarded at £85,000.
• Funeral expenses excluding costs of wake, mourning clothes, and memorial bench are recoverable; disputed items disallowed.
• Probate costs are not recoverable under the 1934 Act and are disallowed.
• Past loss of earnings claim of £15,914.61 allowed, to be held on trust for former employers.
• Bereavement award fixed at the statutory amount of £12,980.
• Future loss of earnings calculated on the basis that the deceased would have worked until age 70.
• Loss of services awarded at £7,500 (annual sum with multiplier).
• No award made for loss of intangible benefits.

The decision directly affects the parties by defining the scope and quantum of damages payable but does not establish new legal precedent beyond applying existing authority. It clarifies the court's approach to contributory negligence in asbestos exposure cases and limits on recoverable funeral and probate expenses, as well as the treatment of intangible benefits claims in fatal accident contexts.