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Steven Snowden - Watson note

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									Steven Snowden of Crown Office Chambers (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.

                                                                           STEVEN SNOWDEN

Crown Office Chambers
2 Crown Office Row
Temple
London EC4Y 7HJ

								
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