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Prospective funeral expenses are not recoverable by a living claimant: Watson v Cakebread Robey [2009] EWHC 1695 (QB)

Steven Snowden (instructed by Berrymans Lace Mawer, Cardiff) appeared for the Defendant in this High Court assessment of damages in a living mesothelioma claim before Satinder Hunjan QC, sitting as a Deputy High Court Judge. The case was heard on 25.6.09 and 26.6.09. Judgment was reserved and was handed down on Friday 10.7.09.

The Claimant was diagnosed with mesothelioma in late 2007 and he stopped work at that stage. He had run his own building / development business for two years but had never registered for tax, NI, VAT or under the CIS scheme. He did not hold a bank account and dealt only in cash. The Judge rejected the Claimant’s evidence that he was just about to register himself for tax, etc. when the mesothelioma symptoms appeared.

A number of heads of loss had been agreed before the trial but amongst the disputed heads of loss the Judge had to assess the likely future profitability of the business if the Claimant had registered himself properly. He rejected as too speculative a separate head of loss that the Claimant would have earned income after 65 by investing in properties.

Although it formed a relatively small part of the claim in financial terms, the Judge had to rule on the recoverability of prospective funeral expenses. Two previous unreported decisions of Deputy High Court Judges were in conflict on this: Bateman v Hydro Agri (UK) Ltd (a decision of Mr Anthony Temple QC in 1995) and Smith v Cape Plc (a decision of Mr Barry Chedlow QC in 1991). The uncertain and unsatisfactory nature of the law on this point is mentioned in Kemp & Kemp at paragraph 29-063, in BPILS at I [1463] and in McGregor on Damages at 36-130. The parties argued the point from first principles and the Judge held that funeral expenses are not recoverable by a living claimant whose life expectancy is reduced because of the defendant’s tort.

The total award was £246,000-odd as against the Defendant’s Part 36 offer of £250,000. Costs arguments were adjourned.

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