UK: Novel Extension To Loss Of Dependency

Last Updated: 13 April 2015
Article by Clyde & Co LLP

Haxton v Philips Electronics (2014) EWCA Civ 4

Background

The Claimant was the widow of an electrician who had been employed by the Defendant. The Claimant's husband had died from Mesothelioma, contracted as a result of negligent exposure to asbestos in the course of his work with the Defendant.

Following his death, the Claimant brought a claim for dependency but, prior to her case coming to trial, the Claimant herself was diagnosed with Mesothelioma. Her condition was caused by exposure to asbestos dust through washing her husband's work clothes.

The Claimant's life expectancy was reduced to 0.7 years, and the value of her dependency claim was, accordingly, reduced by about GBP 200,000.

The Claimant bought separate proceedings, in her own right, for negligence and breach of statutory duty against the Defendant. She included a claim for GBP 200,000 diminution in value of her first dependency claim, on the grounds that, but for the Defendants negligence, her life would not have been cut short and the assessment of her dependency claim in the first action would have been significantly greater.

At first instance, the Judge disallowed the claim on the basis that it was against principle and policy to allow the Claimant to recover this sum in her own right.

Findings

The Court of Appeal thought differently.

The Court considered that there was no reason in principle why the Claimant should not recover damages for the loss she had suffered as a result of the reduction in her life expectancy by reason of the Defendant's negligence.

The Court did not consider that allowing such a claim, would improperly interfere with the statutory scheme established under the Fatal Accidents Act, and considered that there was nothing to suggest Parliament intended to deny a Claimant in this situation a right to recover. This was a common law claim for loss of dependency.

Furthermore, the Court rejected the argument that the loss was too remote. It was reasonably foreseeable that a reduction in life expectancy might lead to a diminution of value of an existing claim and, if the Claimant had such a claim, then the wrongdoer must take their victim as they find them.

Indeed the Judge indicated that this would be the case even if the Claimant's tortfeasor had not been the same as her husband's.

Key points for defendants

  • This case has far reaching implications. It could apply to other cases where the value of a Claimant's claim is reduced due to wrong doing of a tortfeasor that occurs after the original cause of action arose
  • For example it could apply to multi-casualty RTA claims where the tortfeasor causes the death of two members of the same family; when the dependent dies following the death of the main income provider. Indeed the Court of Appeal also opined it could also apply when the family members are injured by different people in two unconnected accidents
  • The claim has specific implications for calculations of damages where there are two successive torts, although it is unlikely there will be many claims where such circumstances arise. When they do, the Court of Appeal has unequivocally stated that it would not be in the interests of justice to allow the negligent employer to benefit from a potential saving.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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