Damages for Mesothelioma Suffers

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1 April Damages for Mesothelioma Suffers This article considers a recent mesothelioma judgment, identifying key determinants for an award of General Damages and reminds practitioners of good evidence gathering. Introduction Damages, colloquially known as compensation, fall into two broad categories. There are damages for financial losses, identified as Special Damages; and those for pain, suffering and loss of amenity, known as General Damages. The awards for General Damages are decided on the facts of each case, but within a broad range of awards for similar injuries that the court has made over many years. Within the last 20 years, there has been a detailed study of those awards, with the results published by the Judicial Studies College, formerly the Judicial Studies Board. They have produced a slim and handy volume that practitioners can refer to, as a guide, to identify the likely award that a court will make in any particular case. However, the volume is only a guide and practitioners should always refer to more detailed authorities for further guidance as to what a judge may award in any particular case. Some injuries are more common than others and frequently come before the court for determination. As a consequence practitioners have an abundance of cases to consider, to identify a judgment which closely fits their own case. However, there are some injuries and illnesses that come before the court less frequently and therefore they deserve particular attention, to establish the court s current thinking. Ball v Secretary of State for Energy and Climate Change

2 One particular illness that does not frequently come before the court for a judgment, is mesothelioma. Therefore, the decision in Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB) is worthy of attention by all industrial disease practitioners and others who have a particular interest in this areas of the law. To put the award in Ball v Secretary of State for Energy and Climate Change in context, it is necessary to understand the factual background to the case. Proceedings were commenced on 21 September 2011 and judgment was entered in the claimant s favour on 8 December 2011, with damages to be assessed. The assessment hearing took place on 26 January The Claimant s symptoms were that chest symptoms began in late On 26 January 2011, his GP visited him at home and noted that he had had a chesty cough with green sputum for several days. He was subsequently admitted to hospital. On admission to hospital, the claimant was described as confused and agitated. He was very short of breath and was coughing constantly. A chest x-ray showed a left pleural effusion. He was nursed on oxygen to help with his breathing. A pleural aspiration was performed on 28 March The resultant cytology appearances suggested that he was suffering from a malignant mesothelioma. On 31 March 2011, the claimant was told of the probable diagnosis. It was explained that the condition was incurable but that it should be possible to get his symptoms under control. He was listed for a thoracoscopy with a view to removing the pleural effusion (to relieve his breathlessness) and confirming the diagnosis of mesothelioma. Following the thoracoscopy, the claimant was reported to have some pain but was otherwise reasonably well. He was anxious to go back to his flat. He did not want to go into a Nursing Home. In the next few days, his temperature was raised. An infection of the pleural space was suspected and he was treated with antibiotics administered intravenously. He developed acute urinary retention and underwent a bladder scan followed by catheterisation. He also developed a pressure sore. On 19 April 2011, he was reviewed by a member of the hospital palliative care team who noted that he complained of feeling uncomfortable all over and became breathless after talking for a while. He was now using a walking frame, rather than a stick as previously. He felt depressed. He wanted to go home but was concerned about how he would manage. In the event, the Claimant s stepson managed to find a Nursing Home

3 which was able to meet the claimant s needs and he was discharged there on 23 April At the time of trial that was where he remained. JSB Guidelines Having heard evidence about the Claimant s symptoms the court considered the appropriate award for general damages. This seminal judgment is an excellent read for any practitioner as it considers many relevant cases, but also, importantly, reviewed various decision based on the Guidelines for the assessment of general damages in personal injury cases (the JSB Guidelines), published by the Judicial Studies Board (now known as the Judicial College). The JSB Guidelines are not intended to prescribe the levels of damages that judges should award. They are intended to assist judges by setting out what the authors consider to be the current levels of awards that have been and are being made by judges up and down the country. Judges are not obliged to follow the Guidelines. Inevitably, however, they are extremely influential, in particular with conditions such as mesothelioma about which few judges have any specialist knowledge. The Guidelines are also routinely used by practitioners when valuing and settling personal injury claims. The brackets of awards contained in the JSB Guidelines are up-dated in each new edition to take account of inflation. In the seventh (2004) edition of the JSB Guidelines, the bracket of awards for mesothelioma was stated to be 45,000-70,000. That bracket was accompanied by the following commentary Mesothelioma causing severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. The duration of pain and suffering accounts for variations within this bracket. For periods of up to 18 months, awards in the bottom half of the bracket may be appropriate; for longer periods of four years or more, an award at the top end. The eighth edition of the JSB Guidelines, published in 2006, contained a commentary in identical terms. In order to take account of inflation the bracket had been raised to 47,850-74,300.

4 The ninth edition of the JSB Guidelines was published in June The bracket of awards for cases of mesothelioma had been updated for inflation and was now 52,500-81,500. The commentary was in identical terms to that which had appeared in the two previous editions save that an additional sentence had been added: 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 tenth edition of the JSB Guidelines was published in September The bracket for awards in mesothelioma cases had changed significantly from that contained in previous editions. In the ninth (2008) edition of the JSB Guidelines, the lower end of the bracket had been identified as 52,500 (current value about 58,000). In the tenth (2010) edition of the JSB Guidelines, it had been reduced to 35,000. By contrast, the upper end of 83,750 remained at the same level as in 2008, with some updating for inflation. The accompanying commentary had also been amended. The section referring to awards for longer, shorter and unusually short periods of pain and suffering had been deleted. The commentary stopped at the sentence: The duration of pain and suffering accounts for variations within the bracket. The consequence of these changes was that the bracket for mesothelioma awards was now very wide, with over 50,000 between the higher and lower levels of the bracket. Key Factors Swift HHJ shared the view expressed by Senior Master Whitaker in George Smith (administrator of the estate of Graham Smith, deceased) v Bolton Copper Ltd (10 July 2007) that one of the factors to be taken into account is the extent and effects of the invasive investigations that a claimant/deceased has had to undergo. Senior Master Whitaker also mentioned radical surgery, which can be unpleasant and painful. To that Swift HHJ added chemotherapy and radiotherapy, that may be administered in an attempt to prolong life, which can often produce distressing and debilitating side effects. Another factor is the type (or, in some cases, such as Smith, the types) of mesothelioma from which the claimant/deceased suffered i.e. whether it was peritoneal or pleural. There are also cases, as described by Dr Rudd (expert in the case of Ball) where the tumour spreads to encase the

5 lungs and where other organs become involved as a result of the spreading of the tumour or metastasis, causing additional pain and/or breathlessness. The level of symptoms must be a key factor. If the symptoms (in particular pain) are not or cannot be effectively controlled, that is an important consideration. As Senior Master Whitaker observed in Smith, it must be borne in mind that, typically, the worst symptoms of pain occur in the last weeks and days before death and that the symptoms immediately preceding death can be particularly severe. Swift HHJ considered that it is relevant to bear in mind also that, even if a deceased s death has in the event been relatively peaceful, he or she will have been fearful since being told of the diagnosis of mesothelioma that a painful and distressing end lies in store. Obviously, the duration of the symptomatology is also a factor, although not of itself determinative of the level of award. The level of award will also be affected by matters such as the domestic circumstances and previous state of health and level of activity of the claimant/deceased. A young fit man, with a wife and dependent children, an active life and what would (but for his mesothelioma) have been a long life expectancy, will suffer a very considerable loss of amenity as a result of his illness and the knowledge that he will die prematurely. He is also likely to suffer heightened distress and anxiety at the prospect of leaving his family to cope. By contrast, an older claimant/deceased may not have had those particular anxieties and may, because of his/her age, health and situation, experience less of a restriction of his/her activities as a result of the onset of illness. These considerations should also be taken into account. It is important to remember, however, that a person of any age who is informed that his or her life will be cut short by the effect of a harmful substance to which he or she has been wrongfully exposed, is likely to suffer a good deal of distress. Conclusions The list of factors is not of course intended to be exhaustive. The factors are far more complex than the emphasis in the JSB Guidelines on duration of symptoms would suggest. The evidence placed before the court, from the claimant and family, should include information as to the treatment and consequences of such treatment, together with a full understanding of the client s circumstances before and after the illness took hold.

6 A further conclusion is that the case of Ball is a timely reminder (as observed by Swift HHJ), that the JSB Guidelines are no more that what is said in the title. Practitioners undertaking this work must refer to the primary sources, frequently found in Kemp and Kemp, but elsewhere too, to ensure that they are seeking the correct level of General Damages for pain, suffering and loss of amenity, but not just in disease cases. Although the Guidelines are to be regarded with the respect which we should accord to the writings of any specialist legal author (Reed v Sunderland Health Authority (1998)), perhaps Woolf LJ was correct when he said the JSB Guidelines are a starting off point, rather than the last word (Arafa v Potter [1994] P.I.Q.R. Q73). If you would like to talk to us about the issues raised by this note, please contact: Malcolm Underhill Telephone IBB Solicitors Capital Court 30 Windsor Street Uxbridge Middlesex UB8 1AB Tel: Fax: This briefing note is only intended to provide general guidance and is not intended to constitute legal advice. IBB Solicitors 2011

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