Update: personal injury

Hospice care costs

In Drake & Others v Foster Wheeler Ltd [2010] EWHC 2004 (QB), the family of a boiler worker (W) diagnosed with a terminal illness were able to claim a large proportion of a hospice's treatment costs for providing him with care in the last days of his life.

W sustained asbestos exposure during his employment with the defendant (F). In 2006, he was diagnosed with mesothelioma (a terminal cancer of the lining of the lungs). Following his discharge, his two daughters and one of his granddaughters looked after him. His condition deteriorated rapidly.

One of his daughters effectively moved in with him to provide constant care. All of W's carers found looking after him arduous and their own health began to suffer. Consequently, he was admitted to a hospice (H) where he received palliative care for 23 days until he died.

W's daughters (D) brought proceedings on behalf of his estate under the Fatal Accidents Act 1976 and judgment was entered with damages to be assessed.

The main issue centred on whether H's costs in caring for W could be recovered. It was noted H operated under a registered charity and its funding came from nine PCTs, with the remaining coming from voluntary payments. D sought to recover 62 per cent of H's treatment cost (which equated to the percentage not funded by the PCTs) on grounds that this constituted gratuitous care because it was similar to care provided by family members, for which damages are recoverable.

To determine this issue, the court sought to examine the basis upon which gratuitous care is claimed. No clear principal could be identified; but, equally, the authorities did not appear to rule out such claims.

In holding H's costs recoverable, the court found the palliative care provided to W was both 'reasonable and necessary' because of his terminal illness. Second, in concluding the services were gratuitous, it noted: (1) the palliative care was essentially non-medical; (2) charitable in nature; (3) the family felt morally obligated to H; (4) it was similar to care provided by volunteer carers, family members and friends; (5) F would have had to recompense H had it charged for these services; and (6) such care could only be provided by a hospice. Therefore, F was ordered to pay H's costs. While normally this would be paid to C on trust, it noted this was not necessary under the CPR and so ordered F to make a direct payment to H.

Unfortunately, families of those diagnosed with terminal illness often heavily criticise the care received in hospital. Many families report a much better experience when the sufferer is transferred to a hospice. Not only do hospices provide basic care, but also make efforts to keep the person engaged. Families are therefore very grateful to the care provided by these institutions in the last months or days of the sufferer's life.

Before any transfer to a hospice, not only do families have to deal with the shock of a terminal diagnosis, but also the truly horrific symptoms caused by diseases such as mesothelioma. The physical and psychological burden on anyone caring for a relative can be immense. It is not surprising therefore that the family in this case sought to give something back to those who looked after their relative so well. Many claimants will welcome this decision.

The court considered this would not open the floodgates because such claims were rare, arising only when there was a 'lingering and painful dying period'. While this may be true overall, defendants in future are likely to be presented with a number of similar claims.

Discharging the burden of proof

In Keefe v Isle of Man Steam Packet Co. Ltd [2010] EWCA Civ 683 the court held that where a claimant is prevented from obtaining important evidence to argue its case because of the defendant's breach of duty, it would regard the claimant's case and their other evidence 'benevolently'.

Mr Keefe worked on ships for various companies including the defendant (S) between around 1973 and 1978. Long after completion of his employment, an audiogram showed he suffered a 22 per cent hearing loss of which half was found to be caused by his employment with S.

Keefe and subsequently his widow (K) brought proceedings. K was unable to adduce evidence that the noise was higher than the level considered harmful at that time (i.e. above 85 decibels) because S had failed to take noise readings in his workplace. K therefore relied on witness evidence showing these levels were such that staff had to communicate by hand signals and that they worked in these noisy environments for 16 hours a day. S's own witness '“ a captain who stated he visited every area of the ship regularly '“ denied these environments were excessively noisy.

K was unsuccessful at first instance. Although the trial judge held S was in breach for failing to take measurements (following a 1972 publication by the Department of Employment's Code of Practice, employers would have been expected to measure noise levels in work premises and provide ear protection if excessive) he dismissed K's claim because S's witness evidence was preferred.

The Court of Appeal, while disagreeing with the judge's conclusions on the evidence, (they considered K's evidence showed the levels were about 90 decibels which were likely maintained for at least eight hours a day) was more concerned by the judge's apparent failure to attach sufficient weight to S's breach in not taking readings.

British Railway Board v Herrington [1972] AC 877 was followed, where adverse findings were made against a defendant who failed to procure relevant witness evidence, and Harris v BRB (Residuary) Ltd [2006] EWCA Civ 900 was cited, in which Neuberger LJ acknowledged the difficulties in noise and vibration cases and said unless the claimant failed to obtain evidence that would have been easy to acquire, the court should not simply dismiss the claim and 'shelter behind the burden of proof'. The appeal was therefore allowed.

While K succeeded on appeal, this decision confirms the difficulties claimants face in surmounting the burden of proof '“ particularly in cases involving industrial deafness.

Solicitors' hourly rates

In William Higgins v MOD [2010] EWHC 654 (QB), the MOD (M) appealed a ruling which held it was reasonable for Mr Higgins (H), who lived in Kent, to instruct a Central London solicitor.

H was diagnosed with lung cancer alleged to have been caused by asbestos exposure while employed by M. His treating consultant advised him his condition was advanced and is understood to have provided the name of a firm of solicitors in London to contact about making a claim. He instructed these solicitors who progressed his claim. He was very ill at the time and his daughter moved in with him to provide full-time care. H died a few months later, but his case settled when he was alive.

The principle costs officer, Master Campbell, noted: (1) the case was urgent because of H's terminal diagnosis; (2) was of high importance to H; (3) there were no factors connecting the case to a particular location; and (4) H was accessible by the London solicitors. He concluded it was not reasonable for someone with a terminal disease to search for solicitors where an experienced consultant had already suggested a specialist. As such, the instruction of these solicitors was considered reasonable.

On appeal, the court confirmed that a reasonable litigant is under a duty to minimise litigation costs. Consequently, he would be expected to investigate hourly rates and consider other factors, such as time and costs related to location, before deciding on who to instruct. The factors which Master Campbell and Kennedy LJ in Wraith v Sheffield Forgemasters Ltd; Truscott v Truscott [1998] 1 WLR 132 took into account were noted, but it considered these lists were not exhaustive.

However, its role was to review Master Campbell's decision and not re-hear the facts.

Therefore, in the absence of finding any error in principle, it would not interfere with Master Campbell's considerations as to the weight to be attached to the factors he considered. As such, the appeal was dismissed.

This is a point frequently raised in points of dispute. While this case appears to support recovery where the claimant is terminally ill, this question will depend ultimately on the individual facts of a claim.

Occupiers' liability

In the last PI update we discussed the case of Jonathan Harvey v Plymouth City Council [2009] QBD (Solicitors Journal 154/10, 16 March 2010).

The claimant (H) sustained serious head injury when he ran into land while drunk and fell a distance of about 5½ metres into an adjacent car park. The defendant (P) was the occupier of this land.

The court considered the application of the Occupiers' Liability Act 1957, particularly the duty owed to visitors under 'implied licenses'. H claimed he was an implied licensee because the land wasregularly used by people of all ages including those drinking alcohol. It was reasonably foreseeable therefore that youths might be fooling around on the land and that such visitors were not trespassers but 'implied licensees'. H was successful, but a discount of 75 per cent was applied because of his drunkenness.

However, P recently appealed this ruling in Jonathan Harvey v Plymouth City Council [2010] EWCA Civ 860. While the Court of Appeal accepted P owed a duty to its licensees in relation to risks arising from the large drop and that there was a license in relation to general recreational activity, the main issue was whether P was a licensor of the particular uses which led to H's accident.

Scrutton J's statement in Calgarth [1972] was cited: 'When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters.'

The statement confirmed that there could be implied restrictions to the extent of a license. The trial judge considered the license could extend to those acts which were reasonably foreseeable, but the Court of Appeal held this was not the correct test. The main question was whether P had impliedly assented to H's activities; there was no evidence of such assent. When a council such as P allows the public to use land for recreational purposes, it is only consenting to 'normal recreational activities' and not those undertaken by H. As such, the appeal was allowed.

This decision has potentially far-reaching consequences, not just for council-owned land (because there are many such unfenced areas) but also other land areas where the uses/activities are undefined. The extent of any license now depends on whether an activity is 'normal' as opposed to 'foreseeable'. Whether this brings more or less certainty to the law remains to be seen, but, given the implications of this decision, there is a chance this case may go to the House of Lords.