Firm must pay for asbestos victim's hospice care

Engineering firm Foster Wheeler must pay for the hospice care of a worker who died of mesothelioma which he contracted as a result of exposure to asbestos, the High Court has ruled.

In the first case of its kind, the company was ordered to pay more than £10,000 directly to St Joseph's Hospice in East London and provide the victim's estate with a receipt.

Giving judgment in Drake and Starkey v Foster Wheeler [2010] EWHC 2004 (QB), Judge Anthony Thornton QC, sitting as a deputy judge of the High Court, said the claimants were James Willson's two daughters and the executrices of his estate.

Wilson died of mesothelioma or lung cancer contracted as a result of exposure to asbestos when working for Foster Wheeler in the early 1950s at Deptford power station, the court heard.

Judge Thornton said Willson was 'continuously exposed to the danger of inhaling asbestos dust while working at this power station' and 'neither warned by his employer of the dangers of this exposure nor was he provided with respiratory protection'.

It was noted in medical records that Willson had pleural plaques in 1982 but he was not informed, and it was not until 2006, when he was 75, that he started having chest pains and was diagnosed with mesothelioma.

He was later given radiotherapy and looked after for 24 hours a day by his two daughters.

Before he died, when he was weak and struggling to breathe, Willson spent just over three weeks at St Joseph's Hospice, where he was referred by the PCT, and received free palliative care.

Judge Thornton said the Willson family wanted to make a donation to the hospice but had 'very limited resources' themselves.

'The basis of this claim is that Mr Willson was provided with essential palliative care which it was both reasonable and necessary for him to receive given his terminal decline in health as a direct result of the malignant mesothelioma for which the defendant is wholly and directly responsible in law.

'This care involved essential home visits by a range of specialist medical and non-medical trained staff and, once his health had deteriorated, 23 days of in-patient care so as to enable his last days to be as comfortable, supported and pain-reduced as possible.

'This home care and support is similar to the care and support for which a claim is usually made on behalf of family members.

'The in-patient care and support, being entirely palliative, is of a similar kind albeit that it is provided in an institutional setting and at an intensity and skill that home carers would be incapable of providing.

'The principle governing the recovery from tortfeasors for this head of recovery is that the injured claimant may recover the reasonable value of gratuitous services rendered to him by way of voluntary care as compensation to the carer for providing such care.'

Judge Thornton went on: 'Claims for hospice care are inevitably infrequent. They can only arise where a lingering and painful dying period has occurred as a result of illness or injury caused by the actionable acts or omissions of a tortfeasor.

'Such claims have always been rare. However, they may now become more frequent because it has 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 does not give rise to a fear that the so-called floodgates will open or that a new head of recovery has suddenly been opened up. Rather, recovery is consistent with established principles and it is unlikely that there will be a significant number of claims in the future.'