Action Mesothelioma Day

As this is my very first blog post it is perhaps appropriate that it is on a subject likely to feature prominently in my future postings – mesothelioma.

The annual Action Mesothelioma Day this year took place on July 5th, when around the country events were held both to remember the victims of mesothelioma and to raise awareness of the on-going dangers of asbestos and exposure to it. I attended an event close to the Olympic Park, at Stratford Old Town Hall in London, where doves were released in memory of the thousands of victims of mesothelioma in this country.

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On the same day as we gathered to mark Action Mesothelioma Day yet another mesothelioma legal judgment was being handed down in the High Court – Haxton v Phillips Electronics, in which both a husband and his wife had become victims of mesothelioma. Mr Haxton had worked as an electrician for Phillips Electronics for many years from the early 1960s onwards, and during his employment he was negligently exposed by Phillips to asbestos. He began to develop symptoms attributable to mesothelioma in June 2008, and succumbed to the disease in July 2009. Mrs Haxton like many other wives had regularly washed her husband’s overalls, which of course were full of asbestos dust, and tragically she herself began to develop symptoms in early 2011, being diagnosed with mesothelioma in early 2012.

In June 2012 she began a legal action against Phillips in respect of her husband’s death as executrix of his estate and as his dependant. She subsequently commenced legal proceedings in respect of her own mesothelioma in February of this year. Phillips admitted liability in both cases, and thus all that needed to be decided was the level of compensation payable in each case.

Expert medical evidence put Mrs Haxton’s life expectancy at between 6-12 months only. An agreed undisclosed financial settlement was reached between the parties in respect of Mr Haxton’s death. This settlement included an amount for Mrs Haxton’s dependency on her husband based upon her life expectancy as per the medical evidence. Thus, because of the negligence of the defendant in causing Mrs Haxton’s mesothelioma, this element of the claim relating to her husband’s death was far smaller than it would have been if she had had a normal life expectancy. As a consequence of this fact she included in her personal action against Phillips a claim for her “loss of chance.” What this was in other words was that due to her diminution of life expectancy to below 12 months, she had the lost the benefit of a higher financial settlement in respect of her dependency claim. The amount she was claiming for in this respect was around £200,000. The other elements of her personal claim were agreed between the parties to be worth £310,000.

In her legal action before the judge Mr David Pittaway QC in the High Court, she argued that she had a valuable legal right in her husband’s case, but due to the negligence of the defendant in shortening her life expectancy this was of course drastically reduced, and she argued consequently she should be allowed to recover the ‘lost’ £200,000 in her personal action. She argued that it was a general principle in the law of negligence that the objective of damages was to put a claimant into the position they would have been if the wrong had not occurred – the wrong here being of course the negligence which led to her reduced life expectancy.

The judge rejected Mrs Haxton’s arguments, finding that based on existing legal principles she had recovered financially all she was entitled to in respect of the action relating to her husband’s death, and she could not claim in her personal action what she was not entitled to claim in her husband’s estate’s action. This was the position even though the defendant was the same party in both claims. Therefore the judge found that her personal claim was worth only £310,000, reflecting compensation for the mesothelioma itself and her pain and suffering, loss of earnings and future earnings, and the cost of personal care and support and travel expenses, but that the additional £200,000 could not be claimed for.

Whilst the judge may have been correct in his legal finding based upon the law as it currently stands, it seems somewhat perverse that a negligent party is able to avoid financial liability on the basis that they themselves have shortened the life of a dependent wife such as Mrs Haxton, albeit of course still having to pay her substantial damages.

It might be wondered whether a negligent defendant or their insurer in mesothelioma cases in future may where there is a dependant wife seeking to claim compensation based upon that dependency,  seek to question whether such a dependant wife had been exposed to asbestos dust whilst washing overalls and may try to raise an argument that as such there is a risk of them contracting mesothelioma as well, and consequently their life expectancy should be reduced and any dependency compensation reduced likewise!

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