Many will have seen the recent articles about the lovely Helen Bone, a particularly young mesothelioma sufferer, talking about her experience of mesothelioma and calling for asbestos to be removed from public buildings – something we would most certainly support.
Anabelle Nielson, Senior Associate RWK Goodman
Sadly, in our experience it feels like we are often seeing people in their 40s and even younger being diagnosed with mesothelioma. These clients are almost always working themselves, and often have young children and other caring commitments. Obviously, no compensation is ever adequate, but in this article, Annabelle Neilson and Helen Childs of RWK Goodman discuss how compensation for an individual’s caring commitments is assessed.
In a growing number of cases mesothelioma patients are also carers themselves, and their untimely death leads to their dependants being without the day-to-day care they have come to rely upon, and having to rely on others (usually the other parent) or even commercial care.
Helen Childs, Partner of RWK Goodman
Children, spouses and elderly dependants may often have effectively had the benefit of having a live in carer. Someone to help them without question. Someone who provided care out of love and affection rather than in a professional capacity. The dependants need for care will not have changed because of their loved one’s death from mesothelioma. The question then arises, how do you replace this care and to what extent can a compensation claim fund the dependants need for care?
Claiming for loss of services
It’s crucial to examine each individual’s personal circumstances so the care they provide to children and other family members can be assessed and – as far as possible – quantified in order to recover it from the defendants in the context of a claim.
With elderly claimants they may have been caring for a disabled spouse. Let’s take Parkinson’s disease as an example. Someone with this condition may initially need help/supervision to mobilise around the home, to get in and out of bed, or a chair, help to dress, wash, and go to the toilet.
Their need for care will not remain static. It is likely that their condition will deteriorate and movement will become increasingly difficult; their care needs will become more significant. They may require a hoist to get in and out of bed, they may need to be fed, and the assistance they require to wash, and dress will become greater.
Realistically, unless the mesothelioma patient was also a trained carer, they are unlikely to have been able to have provided all this care as the dependant’s disease progressed, and they aged themselves.
With parents of young children the care they would have provided will also evolve as time goes on. From the full on care for babies and toddlers, to the school run and help with homework, to teaching a teenager to drive, children’s needs are evolving and different. Sometimes mesothelioma patients are carers for children with additional needs, and their childrens own care needs will need to be assessed and a projection made of how those needs would have been met.
Replacement of services
A mesothelioma claim should compensate for the impact that the disease has had. Whether that is claiming for expenses incurred, or care needed by the mesothelioma patient. The same rule applies when it comes to claiming for dependency on caring services provided by the patient. The measure of loss is the care that the patient would have provided, had they not developed mesothelioma and then died. Therefore, careful assessment must be made of not just the care that the dependant requires, or will require, but what care the patient would have been able to provide had they lived. This will need to take into consideration not only the care that the dependant needs now, but also the care that they will need in the future. The amount claimed will be very case specific.
It is also important to note that it does not matter if the services provided by the deceased have not actually been replaced at the time of the claim. Instead, the dependant should be compensated for the loss that they have suffered, regardless of how they have then chosen to deal with that loss, be it replacement paid for care, reduced care, or care provided by loved ones.
A claim for services for a healthy adult dependant is a claim which can only be made in the context of a fatal case. A mesothelioma patient is therefore faced with the difficult decision to either try to settle their claim in their lifetime, providing peace of mind that their claim is resolved, or delay settlement until after they have died to ensure that their dependant is fully provided for. A less than ideal situation, but one which every mesothelioma patient should be fully advised upon.
Mesothelioma patients who are caring for disabled dependants or children can arguably recover their loss of services in the context of a lifetime claim. However, this principle is as yet to be firmly established in caselaw.
Care and services are only one very small part of a compensation claim, but with mesothelioma clients often being diagnosed at a young age, it is crucial that solicitors paint a full picture of their lives in the witness evidence, so that the care they provide to their loved ones can be assessed as accurately as possible.
