Recovering cost of hospice care in asbestos compensation case

In personal injury cases it is possible to recover for the care provided to an injured person. This care is usually provided by family members, and is care above and beyond what would normally be provided. The law gives it the name “gratuitous care.”

The calculation of gratuitous care is based on the hours of care provided multiplied by a non-commercial care rate. The rate is intended to represent the actual cost of paying someone to provide the care less the profit margin. In very rough terms, if the commercial rate in your area is £9 per hour, you could claim £6 per hour for the gratuitous care.

Any compensation recovered under the heading of gratuitous care is held in trust for the person who provided the care.

A clever extension of this principle was argued in a recent case where the care had been provided by a charitable hospice. The Judge saw the care from the hospice as similar to the voluntary care provided by a family member, and took the view any compensation recovered would be held in trust for the hospice.

The case involved an asbestos injury which led to death. It is a good example of how the law of personal injury compensation develops. Unusually for this website I will include the brief report as it is easy to follow. The “tortfeasor” is the party which has caused harm carelessly. “Tort” is the legal word which means causing harm through carelessness.

Drake and another v Foster Wheeler Ltd, reported at [2010] EWHC 2004 (QB); [2010] WLR (D) 232

QBD: Judge Anthony Thornton QC: 5 August 2010

Claims for hospice care were rare and were directly analogous to recoverable claims made by claimants from tortfeasor defendants for the recovery of compensation on behalf of relatives who had provided gratuitous care to the claimant in order to alleviate the consequences of tortiously inflicted injuries.

Judge Anthony Thornton QC sitting as a High Court Judge in the Queen’s Bench Division so stated when assessing damages for, inter alia, hospice care, following successful claims by the claimants, Catherine Drake and Tina Starkey (executrices of the estate of James Thomas Wilson, deceased) against the defendant, Foster Wheeler Ltd, under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

Judge Anthony Thornton QC said that the type of claim made for hospice care was novel and not covered by any reported authority. The estate advanced the head of claim as being one which fell within the head of recoverable loss usually referred to as medical, nursing and other care costs. The estate contended that the claim was directly analogous to claims, now accepted as being recoverable, which were made by claimants from tortfeasor defendants for the recovery of compensation on behalf of relatives who had provided gratuitous care to the claimant in order to alleviate the consequences of tortiously inflicted injuries. This head of claim was also closely related to claims for hospital and other institutional costs and expenses and to claimants’ claims that a defendant should not be permitted to deduct from recoverable damages the savings otherwise arising from the gratuitous third party charitable provision of services to the claimant. The estate argued that the services provided by the hospice were both gratuitous and charitable in nature and were provided without any obligation imposed on Mr Wilson or his estate to reimburse the hospice. Furthermore, the donors of donations or legacies to the hospice could be considered as having provided gratuitous help to the deceased in the form of their monetary gifts. Such care was the same as or very similar to the care provided by the family members for which recovery was now permitted. The cost, or notional cost of the palliative care provided should be recoverable from the defendant. If the compensation were recoverable at all, it was to be held on trust for, or paid directly to, the hospice as the carer. Claims for hospice care were inevitably infrequent and could only arise where a lingering and painful dying period had occurred as a result of illness or injury caused by the actionable acts or omissions of a tortfeasor. Although such claims had always been rare, they might now become more frequent because it had only relatively recently been possible to recover damages on behalf of a deceased whose lingering and painful death has been caused many years previously by unwarranted exposure to asbestos dust or similarly noxious substances. Recovery of the costs of hospice care in such cases did not give rise to a fear that the so-called floodgates would open or that a new head of recovery had suddenly been opened up. Rather, recovery was consistent with established principles and it was unlikely that there would be a significant number of claims in the future.

Reported in Weekly Law Reports by Alison Sylvester, Barrister.

Call for help without obligation on 01392 314086

About Mark Thompson

Personal injury and accident specialist solicitor
This entry was posted in Asbestos, Fatal accident. Bookmark the permalink.

One Response to Recovering cost of hospice care in asbestos compensation case

  1. Pingback: Mesothelioma - environmental risk of asbestos | Mark Thompson Law

Leave a Reply

Your email address will not be published. Required fields are marked *

*