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Ball v SOS for Energy and Climate Change, High Court, 10 February 2012

2 March 2012
The issues

Mesothelioma – appropriate award for general damages – relevant factors – judicial studies board guidelines

The facts

Mr Ball, a living claimant, bought a mesothelioma claim in respect of his exposure to asbestos dust in the course of his employment with the National Coal Board and/or the British Coal Cooperation, between about 1967 and 1985.

The court was concerned at the emphasis which successive editions of the JSB Guidelines placed on the primacy of duration of symptoms

Judgment was entered in his favour on 8 December 2011. By the time of the assessment all issues had been agreed save for the level of general damages. It was agreed that he should receive £3,929.16 for care, £250.00 for miscellaneous expenses, and £19,376.00 for damages for lost years. He was born in 1919 and was 92 at the time of assessment. He lived alone in a flat receiving assistance with shopping and meal on wheels – he was reasonable good physical health with some limited mobility. He led an isolated life save as for regular visits from his step son and his step sons children. His chest symptoms began in January 2011. His condition deteriorated and by March 2011 he became very unwell with a worsened cough and shortness of breath. He was admitted following a visit from his step son to hospital as an emergency. On the 31 March he was told of the probable diagnosis of a malignant mesothelioma. Evidence from Dr Rudd was that the claimant would become completely incapacitated and in need of constant nursing towards the end of his life. As of the date of Dr Rudd’s report (September 2011) He was predicated a likely life expectancy of between 1-5 months. Had it not been for his mesothelioma his life expectancy would have been 2.9 years. The parties were unable to agree an appropriate level of damages for pain, suffering and loss of amenity.

The decision

The court had been referred to successive editions of ‘Guidelines for the assessment of general damages in PI cases’ (JSB Guidelines).

The 7th edition (2004) suggested an appropriate bracket for mesothelioma between £45,000-£70,000. The 8th edition (2006) raised the bracket to £47,850 to £74,300.00 and the 9th edition (2008) updated the bracket to £52,500.00 to £85,00.00. The commentary was in identical terms to that appearing in the two previous editions, with the addition of the following: “In cases of unusually short periods of pain and suffering lasting three months or so, an award in the region of £25,000 may be appropriate.”

The 10th edition of the JSB Guidelines (2010) changed the brackets significantly. It reduced the lower end of £35,000.00 leaving the upper end at the 2008 level with some adjustments in relation to inflation.

The court was concerned at the emphasis which successive editions of the JSB Guidelines placed on the primacy of duration of symptoms.

There were a large number of factors other than that, that could affect the level of award. These were:

  • the extend and effect of the invasive investigations that the claimant had to undergo, including radical surgeory, chemotherapy, radiotherapy
  • whether the mesothelioma was peritoneal or pleural. Dr Rudd had also described cases where the tumour had spread to encase the lung and other organs became involved causing additional pain and/or breathlessness
  • the level of symptoms and whether or not they were effectively controlled
  • this would include a consideration of the fearfulness of the claimant following diagnosis even if their death was relatively peaceful
  • the duration of the symptomatology
  • the domestic circumstances and previous state of health and level of activity of the claimant. A young fit man with wife and dependant children would suffer a very considerable loss of amenity and is likely to suffer heightens stress and anxiety and the prospect of leaving his family to cope. By contrast, an older claimant might not have those anxieties and a less of a restriction of activity. However, any person of any age told that their live will be cut short because of a wrongful exposure to a harmful substance would be likely to suffer a good deal of distress.

This list was not exhaustive.

However, it illustrated the point that the assessment of damages in such cases was more complex than the emphasis in the JSB Guidelines, on the duration of symptoms as previously suggested.

The court was also concerned at the significant reduction of the lower level of the bracket, which was well below all but two of the cases to which the court had been referred. The effect was to reduce the mid point of the bracket to £67,000.00 in the 9th edition to £59,735.00 in the 10th edition, or using current values from £74,200.00 to £63,000.00. It was difficult to understand the basis of these figures.

In this case, the claimant’s age meant he did not have the distress of knowing that many years of life had been denied to him. Nor had he had to give up work or active hobbies and he had been restricted before his illness. His illness had however, increased those restrictions to a small but significant extent. It had forced him to leave his home and lose his independence. The importance of this to him was justified by the fact that even though he no longer lived at the flat he continued to pay rent on it, clinging to the hope that he might return there. The disease had had a devastating effect. The appropriate reward was £50,000.

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