01 April 2016
On the 31 March 2016 an opinion was issued in the Court of Session on the calculation of final damages in pleural plaques cases.
Asbestos related Pleural plaques litigation in Scotland has resulted in some controversial cases since the Scottish Parliament passed the Damages (Asbestos Related Conditions) (Scotland) Act 2009. The most recent is the opinion issued by Lord Boyd on 31 March in the case of Harris v The Advocate General for Scotland. The pursuer sought an award of final damages.
Summary
Liability was not in dispute and the proof before Lord Boyd proceeded solely on the basis of submissions from counsel.
Evidence had been agreed between the parties. The pursuer had a 5% increased risk of developing mesothelioma and a 0.2% increase in the risk of him developing asbestos related lung cancer. The pursuer’s uncle had died of pulmonary asbestos and this prompted the pursuer to undergo a chest x-ray. This x-ray showed the presence of pleural plaques. They have no effect on the pursuer’s lifestyle. The pursuer is a non-smoker, non-drinker and, apart from hypertension, appears to keep relatively good health.
In addition, it had been agreed that, if the pursuer went on to develop mesothelioma or asbestos related lung cancer, solatium could be valued at £66,000. In this eventuality services would be valued at £13,500. The pursuer is in receipt of £16,369 per year in pension payments. These figures are of importance to the pursuer’s preferred method of calculating quantum.
The pursuer moved for decree to be awarded in the sum of £15,233. The defender submitted that the decree of £8,996 should be awarded.
Pursuer’s argument
Counsel for the pursuer submitted that the Court should approach the calculation of damages in two parts. The first part was to look at what the solatium would have been valued at had the pursuer sought an award of provisional damages. The Court should then in the second part carry out an assessment of the future risk of the pursuer developing an asbestos related condition. They submitted that in this case there was an increased risk of 5.2% (calculated by adding the risk of lung cancer and mesothelioma together). Therefore, in their view, the appropriate calculation was to take 5.2% of the figures for solatium in the event of mesothelioma or lung cancer, services and the pursuer’s pension and add this to the damages calculated in the first part. However, there would be a reduction in the damages for future risk to take account of the pursuer receiving damages early.
Defender’s argument
Counsel for the defender submitted that there was no need to carry out a two part calculation. There were dangers in adopting an arithmetical approach as it could lead to overcompensation. Instead the court should adopt a broader approach and select a figure for full and final damages based on previous cases where such full and final awards have been made. He further submitted that future financial loss and services should be restricted to a minimal level.
Decision
Lord Boyd held that whilst the defender’s preferred mode of calculation may be utilised where the pursuer has a complicated medical history, whose life expectancy may be reduced by unrelated reasons, and where there is no more than a remote possibility that the pursuer would develop all the conditions supported by medical evidence, it was not appropriate in this case. Lord Boyd held that he could therefore apply the approach put forward by the pursuer’s counsel.
Lord Boyd then went on to value the case along the same lines as the pursuer’s valuation and with interest still to be calculated the final award of damages will be in excess of £15,000.
Conclusions
The decision raises a number of difficulties for parties seeking to value a pleural plaques claim which is being dealt with outwith the framework and where final damages are sought. Parties will require to make a judgement on which method of calculation to use. This will require careful scrutiny of the pursuer’s current medical condition and whether these adversely impact on their life expectancy or if there is a relationship between a lifestyle choice, say smoking, and an increased risk of developing an asbestos related condition.
The mode of calculation will lead to a significant difference in valuation and therefore more cases may be run to proof on these limited grounds. The risks associated with proceeding on this basis will also be greater as there is little middle ground between the two approaches.
Medical evidence will also be key here especially with regard to the calculation of the percentage increase in risk of any particular condition.
It remains to be seen if this case will be appealed to the Inner House, and it would be useful to have further clarification on whether the Courts will prefer the detailed arithmetical approach taken by the Court in this case or the simpler method of calculation as proposed by the defender.
The full opinion can be read here:
http://www.scotcourts.gov.uk/search-judgments/judgment?id=63830fa7-8980-69d2-b500-ff0000d74aa7
If you require further information about this update, please do not hesitate to contact:
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Wendy Thomson |
Lewis Richardson |