Stephen Glynn recovers nursing home fees in fatal mesothelioma claim

Stephen Glynn acted for an 86 year old widow whose husband died of mesothelioma as a result of his exposure to asbestos when he worked for the MoD at its Chatham Dockyard in the 1970s. The widow sadly suffered from Alzheimer’s disease and was reliant on her husband’s care and constant companionship. After he died she could no longer live in her home which she jointly owned with her husband. She had to be admitted to a nursing home by the local authority. She was forced to sell her home to pay the fees.

Stephen advised and argued that the widow had been dependent on her husband’s continued survival and joint ownership of the matrimonial home and that but for his death (a) she would have been able to continue living at home until her death with her husband’s help and care and (b) the local authority would not have been entitled to take the value of the house into account in assessing the widow’s means to pay when she did have to move into a care home after and because of her husband’s death. Stephen relied on the test in Cape Distribution v O’Loughlin [2001] EWCA Civ 178 that as long as some damage capable of being quantified in money terms is established the Court’s task according to the judgment of Latham LJ is to:

“Examine the particular facts of the case to determine whether or not any loss in money or in money’s worth has been occasioned to the dependents and if it determines that it has, it must then use whatever material appears best to fit the facts in particular case in order to determine the extent of that loss”.

Evidence from the local authority as to what the position would have been in terms of the widow’s liability to pay had her husband not died was obtained on Stephen’s advice and eventually in February 2018 the MoD offered the full amount of the widow’s liability to pay the care home fees. This a novel case but a highly topical one given the increasing pressure on local services to look after the elderly in a time of austerity. Where, as here, that need arises as a result of a breach of duty by the defendant it is crucial that practitioners use the law so that the right amount of damages is recovered and the burden of paying for replacement services is borne by the wrongdoer and not the state or the family.

Stephen was instructed by Mark Gore of Brachers LLP.