Lost years services - Phipps or Lowe?
Recently there have been increases in claims for future services during the lost years period in mesothelioma claims.
As the profile of claimants bringing claims for mesothelioma becomes younger and life expectancy post-diagnosis increases, it is expected that more claims for future services will be brought in an attempt to bring the value of living claims into line with fatal claims.
The most typical claims see the future costs of DIY, gardening and general maintenance claimed on an annualised basis for the period of lost years. Whilst these types of claim may result in a small multiplicand, longer periods of lost life can result in large claims.
The legal position
As a basic proposition, the purpose of a personal injury claim is to compensate the victim for their loss during their life time. Generally, losses of third parties cannot be compensated save where permitted by statue. The most relevant example being the Fatal Accidents Act 1976. Secondly, any loss sought after death has to be viewed as a pecuniary loss i.e. a loss that can be measured in monetary terms to the claimant.
The conventional lost years claim is seeking to compensate for the money (available after appropriate deductions for living expenses) that a claimant would have had available to spend in their lifetime but for their early demise. Such an award does not fall foul of either of those propositions set out above. By contrast, the future services element are claims in respect of a claimant’s inability to confer a benefit by the use of their own time on a third party which is then established as a pecuniary loss to that claimant.
This type of claim was rejected in principle in Phipps v Brooks Dry Cleaning Service Ltd  where the Court of Appeal found a lost year’s claim involving a claim for gardening and DIY was irrecoverable in principle and emphasised the difference between the quantification of a living and a Fatal Accidents Act 1976 claim:
While the plaintiff has lost something of value because he has lost the opportunity to earn his wages, he has not lost anything of value in performing work which would save him expense which he will never incur.
However, claimants tend to rely upon the decision of Lowe v Guise . Here, the claimant was severely injured and was unable to remain as the main carer for his disabled brother. There was no loss of life expectancy as a result of the accident and accordingly this was not a lost year’s claim. The Court of Appeal found that the resulting shortfall in care provided by the claimant to his brother had a pecuniary value and as such, Mr Lowe recovered compensation.
Lowe appears to be in direct conflict with Phipps given that services offered to a third party were seen as the claimant’s loss. Claimants often apply this logic to mesothelioma claims, seeking to gratuitously recover for an inability to carry out DIY, gardening or other domestic activities.
The Court of Appeal in Lowe appear to have been influenced by Section 9 of the Administration of Justice Act 1982 (in force in Scotland but not England and Wales) that would have allowed the claimant to recover these heads of loss. Furthermore, there were powerful policy decisions in play given the claim concerned care to a vulnerable individual.
However, there are important distinctions between Phipps and Lowe as follows:
- Lowe did not involve a claim for lost years and the Court did not expressly consider
- The assessment of a lost years claim is different to that of an injured claimant with unaffected life expectancy. For instance, compensation for the loss of amenity during the lost years period is not included in the PLSA award and the assessment of lost earnings varies.
- There is an inconsistency given that the services are claimed at 100% of the national market value. This is contrary to the principle within a lost years claim that only the surplus after living expenses can be recovered.
Ultimately, Lowe can be read as an exceptional, and difficult, case. This is exemplified by the various control mechanisms imposed by later cases such as Morgan v Ministry of Defence  where a claim for gratuitous domestic services failed.
The tension between Phipps and Lowe is a real one but ultimately reflects that the rules for the assessment of living and fatal claims have developed differently. Lowe does not neatly provide a claimant with a route to recover for services in the lost years.
Whilst these claims are increasingly brought by claimants, they are wrong in principle and we have commonly defeated them. We believe that the logic in Phipps is correct and a robust position should be taken in defence of such claims.