Sarah Witham (as Executive of the estate of Neil Witham, deceased) vs Steve Hill Ltd.
Following a two-day trial late last year, Dushal Mehta successfully recovered just under £930,000 for Sarah Witham after her late husband's diagnosis and death due to mesothelioma.
At the heart of the dispute between the parties in this case was the width and breadth of the Fatal Accidents Act 1976 and the proper method to quantify the dependency if it fell within the scope of the Act.
The case involved a brother and sister, A and B, now aged thirteen and nine years old, both diagnosed as on the autistic spectrum and with additional behavioural difficulties.
The siblings went to live with foster parents Sarah and Neil Witham on a temporary basis in 2015 and the arrangement became long-term in January 2018. The Withams were considering adopting the children and Sarah still plans to do so.
A condition of the fostering agreement with the local council was for one parent to be at home at all times to look after the children as their sole occupation. The Withams decided that Neil, who previously worked in the building trade, would give up work to be the main carer, and Sarah, a specialist paediatric nurse, would return to work once the children were settled in.
However, in January 2019, Neil tragically died from mesothelioma, a cancer caused by exposure to asbestos, which he contracted while working as a labourer for Steve Hill Ltd. Liability was established at the first CMC/show cause hearing.
As a result of Neil’s untimely death, caused by the Defendant’s negligence, Sarah gave up work so as to look after her foster children and, as a result, lost her career.
The key issue in the case was whether Sarah could claim a dependency by valuing the lost care and support her late husband was providing to their two foster children.
Under the Fatal Accidents Act 1976, the children had no claim since they did not enjoy the same rights as natural children. Under the Act, children and step-children are considered dependants, but not foster children.
Sarah had however lost not only the ability to go back to work but also the childcare that Neil would have provided at home whilst she was at work.
The principle question for the court was whether this loss was a dependency within the meaning of the Fatal Accident’s Act with it being argued for the Claimant that there was a recoverable dependency (albeit with unusual factual circumstances) whereas that Defendant argued that the claim advanced beyond the scope of the Act.
The Defendant had argued that the claim for Neil's lost services or Sarah's pecuniary loss (Sarah's loss of earnings) were in fact a loss for the children and since the children as foster children are not dependents, there was no claim and the dependency should be nil. They argued that we were relabelling the loss as Sarah's when it was in fact the children's loss.
In his judgement, handed down on 13th February, deputy high court judge Anthony Metzer QC found in favour of the claimant. He awarded Sarah, just under £930,000 in total, including repaying the costs of the hospice that cared for Neil and the family, damages for pain loss and suffering of £97,500 and importantly, £666,181 for the lost child care and domestic services that Neil would have provided (the dependency).
The judge did not accept the defendant's argument and rejected their claim that Sarah was 'dressing up' a claim for the children as a claim for herself. He instead accepted our argument that Sarah and her family had suffered a loss.
He accepted the family matrix and the 'but for' position i.e. that Neil would have remained at home and cared for the children while Sarah returned to work and that Sarah had suffered a loss as had the family.
Specifically, Mr Metzer QC accepted that section 3(1) of the Act, which defines recoverable dependency, was “a wide gateway and if the dependant can establish that pecuniary loss resulted from the death then that would meet the requirements…” He further found that the dependency was the Claimant’s and was not an illegitimate ‘relabelling’ of A and B’s irrecoverable dependency. In this regard he accepted that even though A and B were involved in the dependency (as the care Neil would have provided was to them) it was nevertheless the Claimant’s loss and not A and B’s: the children in fact suffered no loss as their foster mother (the Clamant) replaced the care provided by their deceased foster father, and that when looking at the reality of the situation the court was entitled to consider a pecuniary loss suffered by all members of the family even though some of the members of the family might not be recognised as dependants.
Finally the judge rejected the submission that the Claimant’s loss was a loss ‘incidental’ to the relationship of husband and wife as he found Sarah and Neil did not foster A and B for business reasons, but rather as a family decision, as a husband and wife.
He said, 'Although they received payment from Oxfordshire County Council, I find that the decision to foster A and B was not a business decision or a choice to maximise their finances but one of the decisions they made as a loving couple as to how they would like their family to be constituted.'
When valuing the dependency, the judge decided to use the cost of replacement care of the services Neil would have provided, rather than the Claimant’s lost earnings, as the measure of the loss. It was in issue whether the dependency should be valued by adopting the commercial rate for replacement care or whether there should be a 25% discount to the commercial rate.
The judge accepted that the situation under the Fatal Accidents Act is different to that where an injured Claimant receives care on a gratuitous basis from family or friends. The former involves a valuation of the services provided by the deceased, which is to be done by reference to the commercial rate and does not require the valuation of the services now provided (which is what is done in a PI claim where there is a discount typically of 25% where the care is provided gratuitously). The judge found support for this approach in the authorities, particularly Knauer v MOJ  EWHC 2552 and Daly v General Steamship Navigation  1 WLR 120. Houscroft v Burnett  1 All ER 332 CA was distinguished as a) Daly (supra) was not cited and b) it was a PI case to which different principles applied.
He said: 'Having heard the evidence from the claimant who impressed me as a witness, I accept her evidence that as a couple, they had decided that she would return to full-time work and that Neil would be the parent at home responsible for most, if not all, aspects of domestic life…
'In reality, the claimant has lost her full-time career as a result of Neil's death… She was dependent upon him as the principal carer for A and B to allow her to pursue a career for the benefit of the whole family in the knowledge that their children would be properly cared for.'
This case highlights the importance (particularly in fatal cases) of the individual facts of a case. The family matrix in this case was unusual but importantly Sarah and her family had clearly suffered a loss which had to be properly compensated. The fact that the children of the family were foster children should have no bearing on the loss that the family and importantly Sarah has suffered.
At conclusion of the case, Sarah was keen to focus attention of how debilitating mesothelioma is and how it is often not seen as a disease that affects younger people.
'Neil was 55 when he died. The ongoing dangers of asbestos are being swept under the carpet in the belief that the disease only affected people now in their 70s and 80s who had been working during the 1950s and 1960s.
People think this is a disease that is petering out, but Neil worked unprotected around asbestos in the 1990s. Had he refused to do so, he would have lost his job.
She added, 'Watching a previously fit and healthy man in his 50s deteriorate so quickly and live in so much pain was indescribable,' she said.
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