Drake and Starkey (Executrices of the Estate of James Thomas Wilson, Deceased) vs Foster Wheeler (Queens Bench Division 5th August 2010)

The Deceased in this case was employed by the Defendant in the 1950s and was exposed to asbestos as a result of which he developed mesothelioma.

Following the Deceaseds diagnosis of mesothelioma, he was initially cared for at home by his family and later admitted to a hospice. Unfortunately, he died some days after admittance. A claim for compensation was brought against his former employer, Foster Wheeler. The Deceaseds estate claimed that, among other things, damages were payable in respect of the hospice care in the sum of 10,021. This amount was based on an estimate of the percentage of the hospices running costs which was not funded from donations made to it from the NHS. This was despite the fact that the Deceased had not had to pay for the care that he had received due to the charitable nature of the hospice.

Judge Anthony Thornton QC allowed the claim in the sum of 10,021 with interest from the date of the Deceaseds death. The Defendant was ordered to pay that sum directly to the hospice.

This case will likely be of worry to Insurers inasmuch as the Court allowed the claim even though there was no contractual basis for charging between the Deceased and the hospice. There is also the potential for the floodgates to open and for similar claims to be made, especially in light of the ever-increasing number of mesothelioma claims that Insurers are now dealing with. Whilst the Judge was not convinced by the floodgates argument, it is inevitable that Insurers will face a number of these claims following this decision and it may not be possible to distinguish this case on the basis of its facts namely that home care was not possible.