Mesothelioma and Loss of Services – An Injustice and How to Challenge It
We all know how devastating a mesothelioma diagnosis is for families both financially and emotionally. One of the little focused on consequences is – how does the family cope with the loss of services of a loved one who is ill and how as lawyers do we make the negligent employer pay for this?
Often the sufferer has been the main driver for the family enabling them to go shopping, on holidays or to family events. They may be the person who does all the DIY, decorating, house maintenance, shopping or housework. In other cases they may even be the carer themselves for a loved one with a different chronic illness.
One would think the law would be able to cope and compensate for such a huge loss but, alas, no. The law can compensate for loss of services where a Widow or Widower is claiming for their spouse who has died but not for someone who is currently suffering from the disease. In a case now universally seen as harsh and wrong Phipps v. Brookes Dry Cleaning Services Limited [1996] the Court of Appeal said that loss of services to a loved one in mesothelioma claims could not be recovered the claimant had an “election and he/she can choose to take damages now or wait for events to run its course and his wife can claim the loss of services”. That was in context of a claim for loss of DIY services of £750 per annum. Indeed, claims for loss of services have always been historically low.
It is up to us as Claimants solicitors to fight back. Detailed statements can show the extent of the care and services provided by a loved one and even a report from a care expert can meticulously document it. By breaking down the services between driving, shopping, DIY all the elements can be enhanced.
What is most important is being robust at challenging bad law. It is to give clients advice that they cannot recover a large part of their claim and cannot settle now but have to wait for their wife or husband to complete the claim after they have died to recover it. No one should have to do that.
As a result, loss of services should be routinely claimed in mesothelioma cases and the Defendants arguments that it is not claimable should be resisted despite the favourable case law.
A robust approach from Claimant’s solicitor and the client – being brave enough to run the argument and resist attempts to settle at undervalues – can result in a good recovery. Often settlements are made at the “doors of the Court” when we are waiting to go in to challenge it in front of a judge.
By continuing to challenge, we obtain large awards despite the fact that that law says we cannot. One day I hope that the Courts will get the chance to overturn an unfair and out of date ruling which is to the detriment of all mesothelioma sufferers.
Peter Williams
Peter has acted for clients suffering from mesothelioma for 30 years. Fieldfisher are proud to be part of HASAG’s legal panel and to support their work for sufferers of asbestos disease
