14 August 2015
W W v THE ADVOCATE GENERAL FOR SCOTLAND. Lord Pentland’s opinion in this case was issued yesterday. It is the first Scottish opinion in which provisional damages have been awarded for pleural plaques.
Please click here to view the full opinion.
Lord Pentland made an award of £8,500 in respect of provisional damages for pleural plaques. The Pursuer is 69. Clearly, therefore, Lord Pentland’s award is significantly higher than the provisional award currently allowed for in terms of the Framework Agreement and indeed is almost as high as a Framework “full and final” award.
The Pursuer’s Counsel had been seeking an award of £15,000 and the Defenders had submitted that an award of £5,500 was appropriate.
His Lordship provides some useful guidance as to how he came to the figure of £8,500. He has, not surprisingly, had regard to cases where provisional damages were awarded in England for pleural plaques before the decision of the Supreme Court in Rothwell. His comments on quantification can be found at paragraphs 25 through to 43. It is of some significance to note that the Pursuer in this case has a greater than average level of anxiety and Dr Dorward spoke to that. Dr Dorward is an expert who had seen many patients with pleural plaques.
Lord Pentland also took into account the Pursuer’s age and the fact that he had a normal life expectancy so he may have to live with the knowledge of his condition and the associated worry for a good number of years. He considered this to be a case in which the Pursuer does have a significant anxiety problem caused by the plaques, one which is likely to persist to some level in the future. It was his view, however, that the anxiety did not amount to a serious psychiatric illness or psychological disability. He judged that his award of £8,500 was probably in line with the level of awards in England before the Rothwell decision. He also referred to the recent Northern Irish case of McCauley v Harland & Wolffe PLC. Whilst acknowledging that it did not involve a claim for provisional damages, it was noted that it did have some similarities to the present case. He also considered that the award he made would not be regarded as inappropriate according to the current Northern Irish practice.
An interesting addendum is that, at paragraph 49, Lord Pentland comments on the specified return conditions. Counsel for the Pursuer had submitted that the Pursuer should be entitled to apply for a further award of damages in the event that he develops any asbestos linked condition in the future. In this instance, the medical evidence presented was that the pursuer was at a 5% risk of developing mesothelioma. The other “usual” return conditions of diffuse pleural thickening or asbestosis causing a 25% or more respiratory disability or asbestos related lung cancer are not noted as a risk. Therefore, Lord Pentland held that the Pursuer is entitled to seek further damages only in the event that he develops that particular condition.
Whilst it is of course possible that this opinion will be reclaimed, we would have thought that would be unlikely in light of the level of the award made.
In relation to provisional damages awards, it is also worth noting the recent opinion of Lord Uist in the case of David Boyd v Gates UK Ltd & Others. Please click here to view the full opinion. We act for the First Defenders in that case, but were not party to the debate as our position was that which Lord Uist reached: provisional damages can only be awarded where liability is admitted. His brief opinion helpfully sets out the law on provisional damages generally.
If you require further information about this update, please do not hesitate to contact:
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Wendy Thomson |
Suzanne Rosenshine |