This post by Ivan Bowley comments on the recent decision of the High Court in Hamilton v N G Bailey, which concerned the Court’s approach to the assessment of general damages for pain and suffering in a low-disability asbestosis claim and the Court’s analysis of the JC Guidelines for the Assessment of Damages in Personal Injury Cases (15th Edn).
The claimant, who was aged 74 at the date of assessment, developed asbestosis as a result of exposure to asbestos during a period of employment with the defendant as an electrician between 1968 and 1981. Judgment was entered at the first CMC and the case was listed for an assessment of damages. The defendant chose not to put questions to the claimant’s medical expert and called no expert evidence of its own. The only factual evidence was from the claimant who was not required to give oral evidence at trial.
The claimant had a 10% respiratory disability due to asbestosis. His medical expert predicted that the respiratory disability would probably increase by a further 5% during the claimant’s remaining life expectancy of about 14 years. The claimant had minimal symptoms and only became aware of breathlessness, some chest tightness and fatigue when gardening. He had no other complaint. He also had small risks of more severe progression of asbestosis, lung cancer and mesothelioma. He sought a provisional damages award.
Both parties invited the court to use the JC Guidelines figures for non-malignant asbestos disease as a starting point, but disagreed about the appropriate bracket:
“£36,060-£99,330 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.
£14,140-£36,060 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.”
The claimant invited the Court to value the claim along conventional lines, having regard to the JC Guidelines and a number of previously decided cases. The defendant sought a more arithmetic approach, arguing that the Court should identify a full and final figure within the lower bracket but then discount that figure for the risks of more serious conditions to reflect the fact that the claimant was seeking a provisional damages award.
When considering the appropriate bracket, the Judge identified what he considered to be an anomaly in the JC Guidelines; specifically that if both brackets in the Guidelines reflected both provisional and full and final awards from previously decided cases there appeared, to the Judge, to be a discontinuity between the brackets (paragraph 33). His concern was that for similar men with 10% respiratory disability on either side of the threshold between the brackets, one would receive provisional damages and the other full and final damages of about the same amount (about £36,000).
The Judge adopted the defendant’s “arithmetic” approach, having decided that the starting point for damages should be a figure in the lower bracket, which he then adjusted down for the value of the risks of a more serious condition. He then stood back and adjusted that figure back up again to take account of the cases to which he had been referred, resulting in an immediate award of provisional damages of £32,000.
The defendant’s arithmetic approach to the assessment of damages for pain and suffering in non-malignant asbestos claims has its genesis in the judgment of Smith LJ in Rothwell v Chemical & Insulating Co  Civ 25, at paragraphs 174-179. The case concerned the actionability of asymptomatic pleural plaques. The Court of Appeal was invited to consider how to increase a provisional damages award in an asymptomatic pleural plaques claim to compensate for the risks of more serious conditions developing in the future. The “principled approach” set out in the judgment of Smith LJ (with whom the majority agreed on this point) is to apply the percentage risk of the more serious condition (i.e. malignancy) to an assumed valuation of damages for pain and suffering for that condition, and then add that to the immediate award for the existing injury.
On a number of occasions since the decision in Rothwell, judges have been invited to adopt this approach when valuing damages in non-malignant asbestos disease claims. Frequently, however, they have not done so and have instead adopted the more traditional method of valuing the claim having regard to previously decided cases and the JC Guidelines.
In Hamilton, the claimant submitted that while it might be appropriate to increase the valuation of an immediate provisional damages award to compensate for future risks by applying Smith LJ’s methodology in order to reach a full and final valuation, it was not appropriate to carry out the same exercise in reverse to derive the current value of a provisional damages award from a full and final figure. The Judge did not entirely accept the claimant’s submission on this point, stating that provided it was clear how the starting figure was reached and what it contained, it could then be increased or decreased as appropriate (see paragraph 26).
With respect to the Judge, reducing a full and final figure on an arithmetic basis could lead to anomalous results. The following example illustrates the problem: assume two otherwise identical men of the same age and life expectancy etc. both of whom have asbestosis giving rise to a 10% respiratory disability causing identical symptoms. The only distinguishing feature is that the first man has much higher risks of malignancy (say 6%) because he had a far greater exposure to asbestos than the second man (whose risk of malignancy is say 3%). If the same judge in both cases started with a full and final valuation for a 10% disability of £36,000, and then discounted from that figure a sum to reflect the risks of malignancy to arrive at the value of the provisional damages award, each man would receive a different immediate award, despite the fact that both had the same injury and symptoms. The sum to be deducted from the award to the man with the higher risks would be say £90,000 x 6% = £5,400 and from the award to the second man £90,000 x 3% = £2,700. The first man would receive an immediate provisional damages award of £30,600 and the second man would receive £33,300 without any justification for the difference.
The answer to this problem might be that the situation described above would never in reality arise, because in each case the full and final award used as a starting point would reflect the difference in the risks of malignancy. However, there is a paucity of recent quantum reports for non-malignant asbestos disease, particularly for lower levels of disability, and many of the decisions do not provide sufficient information to enable direct comparison to be undertaken.
Practitioners should also bear in mind that Smith LJ recognised that her approach would not necessarily apply to every case: “I do not suggest that the calculation should be followed precisely in every case. There may be special circumstances in which it is not appropriate. For example, if the claimant has another morbid condition, unrelated to asbestos, which is likely to reduce his expectation of life substantially, it may well be appropriate to reflect that in the assessment of the damages for the risks of malignant asbestos disease.” (at paragraph 179). An example of this is Ibbs v Michelin Tyres  EWHC 1389.
A further issue concerned the question of which of the JC Guidelines brackets the claim in question fell into. The claimant’s disability at the date of trial was 10%, which is not an uncommon finding in non-malignant asbestos disease claims. That level of disability could arguably have fallen within the top of the lower bracket (1 – 10%) or the bottom of the higher bracket (10% or above). What distinguished this case was that there was a probability of progression by a further 5% disability, but that was not sufficient to persuade the judge to place the case in the higher bracket. He focused instead on the current level of disability, finding that the lower bracket was for a respiratory disability of 10% and below and the higher bracket for disability in excess of 10% (paragraphs 43 – 44). The judge observed that for a man with an 8% disability which was predicted to increase by 5% damages would still fall within the lower bracket because the current disability was less than 10%.
If this analysis is correct, however, it follows that any current disability of 10% or less should be valued in the lower bracket, regardless of how rapid, severe or debilitating the future progression of that existing condition might be. A man with a current disability of 10%, but who was predicted to progress to a future disability of say 30%, would still fall within the lower bracket. In the writer’s opinion, while the judge’s 8% example would inevitably attract a lower award, his analysis cannot be correct for every case involving a current disability of 10%.
What is required in any given case is for the court to look at the evidence and then stand back and consider what is an appropriate immediate award for the injury in question having regard to the JC Guidelines and previously decided cases. The process becomes more difficult and prone to error when the judge is invited to compare the case before the court with previously decided awards made on a different basis (full and final rather than provisional) and then somehow adjust the award to make it comparable to the extant claim. The brackets are, as the judge noted, guidelines not tramlines, and the language used to define each bracket should not necessarily be applied too precisely.
The Judge probably got it about right when he said that the cases he had been referred to indicated that for a current 10% disability the range for a provisional award was about £28,000 – £34,000 and for a final award about £31,000 – £37,000 (paragraph 39), but there will still be cases which fall outside those ranges.