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White v ESAB Group (UK) Ltd, Queen's Bench Division, 11 January 2002

22 January 2002
The issues

The Fatal Accidents Act

The facts

On the 4th May 1997 David White died from Mesothelioma due to exposure to asbestos when employed by the Defendant as a plumber and machine fitter. He ceased working for the Defendant in 1996. The widow claimed damages under the Law of Formac 1934 and the Fatal Accidents Act 1976. Liability was admitted.

The decision

The Judge was persuaded that the Claimant’s contentions were correct. He was led to this view by the fact that Cookson was decided before common use of the more sophisticated actuarial area of tables now available and freely used by Judges (and indeed recommended as “the starting point” from which Judges should rarely depart in Wells -v- Wells (Lord Lloyd)) and also by the fact that delay which was a major concern of the House of Lords in Cookson could now be dealt with using the considerable powers provided by the Civil Procedure Rules in other ways, i.e. by disallowing interest or by deciding on a “notional” date on which the case would ordinarily have gone to Trial if there had not been delay.

However, this left open the question as to whether the Judge sitting as a first instance Court had any power to give effect to his conclusions; i.e. whether the effect of Wells -v- Wells was to over-rule the decision in Cookson. The essence of this question lay in the distinction between rules of law and guidelines. In the Judge’s view, the decision in Cookson amounted to a matter of law and not as to a mere guideline such as Lord Lloyd considered guidelines as to interest were in Wells -v- Wells. In the Judge’s view the decision in Cookson amounted to a Rule of principle or law rather than a guideline. Accordingly, the Judge found himself bound by the Rule. In any event, even if it were a guideline, he would have had no alternative but to have followed Cookson, since in his view, guidelines could only be altered by an Appellate Court and not by a First Instance Court. The Judge had a duty in order to ensure certainty in litigation and to follow authority.

Judgment for Claimant in the sum of £280,000.00.

Comments

Despite, from an Insurers point of view, the fact that this case counts as a “win” it should be noted that the whole tenor of the Judgment is against the decision in Cookson and that the Judgment concludes with what amounts to a personal statement from the Judge that the Law Commission recommendations are correct and that a multiplier in respect of post-trial losses in a fatal claim should be calculated as at the date of Trial rather than as the date of death. In so doing, he endorsed the view expressed by Sir Michael Ogden in the introduction to the Fourth Edition of the Ogden Tables.

It may be therefore a short-lived victory.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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