McIntyre v Harland & Wolff plc and another: [2006] EWCA Civ 287

CA: Buxton, Lloyd and Richards LJJ: 28 March 2006

Shortly before his death from mesothelioma the claimant's husband was dismissed by the defendants, when, following diagnosis, he chose not to return to working for them in Libya but to spend time with his wife in England. After his death payments were made to his estate in respect of sums to which he was entitled on termination of his employment under the defendants' provident fund scheme and under Libyan labour law. Had he not become ill the expectation was that he would have continued to work and would have received on retirement enhanced payments from the provident fund. In a claim against the defendants for damages under, inter alia, the Fatal Accidents Act 1976 for the tortious exposure of her husband to asbestos, the claimant, who was the sole beneficiary of the estate, contended that the expectation of the enhanced benefits was part of her dependency. The judge rejected the defendants' submission that the claimant could not recover in respect of such payments because that would amount to double recovery and held that, by virtue of section 4 of the 1976 Act, the claimant did not have to give credit for the sums already paid to the estate.

The defendants appealed.

The Court of Appeal held:
The award of damages had to place the claimant in the position in which she would have been had the tort not been committed, and, since, on the evidence, had the tort not been committed, her husband would have lived to retire and receive the enhanced benefits under the provident scheme, that was what the claimant had lost by his premature death. In relation to double recovery, the payment made from the provident fund was not a payment to the claimant and only benefited her because it formed part of her husband's estate which was the very thing section 4 of the Fatal Accidents Act 1976 said should not be brought into account and for which credit did not have to be given.

The appeal was dismissed.

Appearances: Jeremy Stuart-Smith QC (Capital Law, Fareham) for the defendants; Nicholas Braslavsky QC and Mark Lomas (Moore & Blatch, Southampton) for the claimant.