The claimant was the widow of an electrician employed by the defendant. Her husband had contracted mesothelioma as a result of tortious exposure to asbestos in the course of his work. Upon his death, she brought an action on behalf of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and as his dependant under the Fatal Accidents Act 1976 (FAA). The value of her dependency was necessarily calculated in accordance with her own life expectancy. However, before that case came to trial, the claimant herself was diagnosed with mesothelioma brought about by secondary exposure to asbestos through washing her husband’s work clothes, and her life expectancy was dramatically reduced. The parties agreed that this reduced the value of the dependency claim by £200,000.
The claimant then brought a second action at common law seeking damages for her own injuries, including a claim for £200,000 diminution in value of her first chose-in -action.
At first instance, the judge disallowed the claim on the basis that, while the loss had been suffered, it was contrary to principle to allow her to recover it in her own right.
It was agreed that, as a matter of factual (‘but-for’) causation, this loss arose due to the defendant’s negligent exposure of Mrs Haxton to asbestos.
The only issue in the case was whether this was a recoverable head of damage in law (judgment, paragraph ).
In addition to the factual (but-for) inquiry, there must be a second inquiry as to the extent of loss for which the defendant ought to be liable.
Elias LJ gave the leading judgment, with which Beatson LJ and Dame Janet Smith concurred.
Firstly, the respondent had argued that the appellant was seeking wrongly to import the dependency loss into the common law claim, thus interfering with the statutory scheme under the FAA. However, the Court held that the principles governing compensation under the Act were unaffected, and there was nothing to suggest Parliament intended to deny a claimant in this situation the right to recovery.
Secondly, the respondent submitted that the claimant ought not to be able to recover dependency for a period when she would not, in fact, be dependent. However, not only is it possible at law to recover losses during a period when the claimant is no longer living (see e.g. Pickett v British Rail Engineering  AC 136 and Fox v British Airways  EWCA Civ 972;  ICR 1257), but Mrs Haxton had actually suffered the loss at the point of settling the first action.
Thirdly, Elias LJ rejected the notion that the loss might be too remote. The wrongdoer must take the victim as he finds him. It was reasonably foreseeable that a curtailment of life may lead to diminution in value of a litigation claim. While the claimant did not rely on the commonality of the defendant tortfeasor, the court commented that this would have made the remoteness argument even harder to sustain on these facts.
This is a new head of damage, and potentially has far-reaching implications beyond the schemes under the FAA and Law Reform (Miscellaneous Provisions) Act 1934. It will apply to other cases where the claimant has a cause of action that is reduced in value due to a tortious act that occurred after the cause of action had accrued. The Court of Appeal noted that “there is nothing… which suggests… any special attribute distinguishing this particular chose in action from any other.” (judgment, paragraph ; see also ) It is notable that the case did not turn on the common identity of the tortfeasor in the first and second claims.
While this is a novel head of damage, Court of Appeal was persuaded that this was the application of established legal principle. Although there had been no direct English authority on the point hitherto (judgment, paragraph ), the decision was partly based on the reasoning of the Court of Appeal in Baker v Willoughby  AC 467. Baker was not direct authority on the point because the House of Lords analysed the facts in a different way, and considered the second tort to be a concurrent cause of the claimant’s ongoing disability. This factual scenario can be contrasted with that in Jobling v Associated Dairies  AC 794, where the supervening injury had a natural origin.