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Asbestosis: assessing damages on a provisional basis - Jim Hester,Parklane Plowden Chambers

26/01/21. Hamilton v NG Bailey Limited [2020] EWHC 2910 (QB) provides a useful view of how a court might approach quantum in an asbestosis case when considering damages on a provisional basis rather than as a full and final settlement. Those who deal regularly with such cases would be well advised to read the judgement in full.

The Claim and Diagnosis

The Claimant was employed between 1968 and 1981 by the Defendant as an electrician. Liability was admitted and the Claimant’s medical evidence was not challenged. Accordingly, the claim came before the court only on the matter of quantum of damages alone

The Claimant was aged 74 at the time of the trial. He had provided witness statements saying that he was now breathless when gardening, having previously been a very keen gardener. He described getting short of breath and having a tightness in his chest after about 30 minutes or so of gardening. He also said that he became breathless when strenuously exercising.

It appeared that the symptoms began during the second half of 2018, with symptoms getting worse until early 2019 and then stabilising. The medical expert commented that there was a slight reduction in exercise capability and assessed the Claimant as having about a 10% disability from the asbestosis. It was sufficient to cause breathlessness on prolonged or strenuous exertion. It was the cause of a progressive reduction in activities of daily living and recreation. The Claimant remained well and active in general terms though.

The diagnosis was that the Claimant would acquire an additional 5% respiratory disability in the course of his lifetime, possibly as high as 10% more. The expert considered that there was a 5% risk of more a severe and rapidly progressing asbestosis which would be sufficient to cause life-limiting effects.

There was a 3% probability of developing malignant pleural mesothelioma. There was also a 3% risk of lung cancer, of which two-thirds would be asbestos related.

The Level of Disability

The judge’s first role was to assess the precise level of disability. The judge found that the expert’s description of “around 10%” really meant “10%” for the purposes of the guidelines. It was inevitable that such a figure was an approximation and not exact.

The judge accepted what the Claimant has said about his condition in his witness statements and the effects caused.

Judicial College Guidelines:

The judge noted the relevant brackets of the Judicial College guidelines being, Chapter 6 (C) – Asbestos-Related Disease:

(c) Asbestosis and pleural thickening-where the level of disability attributable to asbestos will be in excess of 10% causing progressive symptoms of breathlessness by reducing lung function. Awards at the lower end of the bracket will be applicable where the condition is relatively static. Higher awards will be applicable where the condition has progressed or is likely to progress to cause more severe breathlessness. Awards at the top end of the bracket will be applicable where mobility and quality of life has or is likely to become significantly impaired and/or life expectancy significantly reduced. This is a wide bracket and the extent of respiratory disability will be highly significant with disabilities of 10-30% being at the lower end, 30-50% in the middle, and in excess of 50% at the higher end. £32,780 to £90,300 (£36,060 to £99,330)

(d) Asbestosis and pleural thickening-where the level of respiratory disability/lung function impairment attributable to asbestos is 1-10%. The level of award will be influenced by whether it is to be final or on a provisional basis and also the extent of anxiety. £12,860 to £32,780 (£14,140 to £36,060)

These were referred to as the upper and lower brackets.

It was noted that the level of award would be influenced as to whether it was on a final or a provisional basis and the extent of any anxiety.

The judge noted the difference between a provisional damages and a full and final award, noting that the provisional damages award at this stage would be lower, given that it includes a possibility of return for court for more serious conditions.

Approaching an Award on a Provisional Basis

The Defendant suggested that the judge come to a conclusion for PSLA on a full and final basis and then reduce it by the expected future damages for the more serious return conditions. For example, mesothelioma might attract in a wall of about £95,000 and therefore 3% of that would result in a £2,850 reduction.

The judge noted that there was authorities in support of such an approach. Likewise, the Claimant pointed out that there were cases approaching it the other way.

The judge considered that for the right case, either approach might be appropriate. However, on this case, the arithmetic approach advocated by the Defendant was found to be a sensible one.

The court also considered how the JC brackets dealt with both provisional damages and full and final awards at the same time as considering the percentage disability. The judge found, however, that the guidelines were intended to be a continuum between the two brackets. If each bracket had their separate percentages and each contained both final and provisional awards, there would be, in effect, a jump at around the border (if the top of the lower bracket was for a 10% disability on a full and final basis, and the bottom of the upper bracket was for a 10%+ disability, but on a provisional basis). The Judge did suggest that those drafting the guidelines may find it useful to clarify how to approach the guidelines.

Each of the parties submitted previously decided cases though each suggested caution in relation to older cases – some approaching almost 20 years.

The Correct Guideline

The judge considered that clearly the diagnosis fell around the borderline of the two guidelines. However, since the lower bracket suggested awards from 1 – 10% disability and the upper bracket suggested that it was ‘in excess of 10%’, the lower guideline should apply.

The fact that the Claimant’s condition was likely to progress did not help him because the wording of the upper bracket suggested that it the diagnosis should be in excess of 10% and causing progressive symptoms off breathlessness by reducing lung function. Therefore, it assumes both parts – both in excess of 10% and with progressive symptoms.

The judge considered, therefore, where in the lower bracket the Claimant fell.

Where in the Guideline

First of all, it was considered that the younger that someone gets the condition the greater the award. The range of the cases brought was from individuals between their 60s and up to 80 years old. The claimant being aged 71 or 72 at the time of onset of symptoms, was considered to be in the middle of the range.

There was no evidence of particular anxiety for the Claimant, although that was the case for many other cases cited.

The judge considered the fact that the symptoms were worst when gardening, although this did appear to be the Claimant’s primary hobby. The judge noted that if there were more significant symptoms, then the 10% figure would itself be greater.

The judge, therefore, placed the Claimant towards the top end of the bracket and stated that he would have given a figure of around £35,000 if this was a full and final basis.

Adjustment for a provisional award

However, undertaking an arithmetic approach it was agreed that this would reduce the sum by about £5,000. This would come to a figure of £30,000.

However, the judge considered that this was on the low side in consideration with other cases and, therefore, came to a conclusion that the correct figure in this case was £32,000.

There were also some modest special damages claimed.

Conclusion

This is a useful case for practitioners both to establish where a 10% disability would lie in relation to either upper or lower brackets of the Judicial College guidelines and also how a judge might approach award on a provisional basis. Ultimately, despite a seemingly arithmetical approach to adjusting the award from a final award figure to a provisional award, that itself was adjusted in line with the Judge’s own view of the appropriate amount.

This article was originally published at https://jimhester.me

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