UK: Harris v. MOD [2016] CSOH 49

Last Updated: 8 April 2016
Article by Toni Ashby and David Tait

The pursuer, Roger Harris, was employed by the MOD as a boilermaker between 1961 and 1977. He was exposed to asbestos dust and fibres whilst working in and around friable lagging. He developed pleural plaques and raised a court action against the MOD seeking full and final damages.

Liability was admitted and all the evidence was agreed. There was no evidence of exposure during any other period of employment. The case focused purely on the appropriate award for a full and final settlement in a pleural plaques claim.

Mr Harris was 70 years of age at the date of proof, never smoked, and was in good health, subject to well controlled hypertension and dyspepsia. His uncle, whom he had worked alongside at the MOD, had died of pulmonary asbestosis, precipitating Mr Harris' attendance for a chest X-ray in January 2013.

Dr Doward prepared a report on Mr Harris' condition. His opinion was that Mr Harris had a 5% risk of developing mesothelioma, and in addition a 0.2% risk of developing asbestos related lung cancer.

The parties were in agreement that should Mr Harris develop mesothelioma or lung cancer, the value of solatium would be £66,000.

It was also agreed that Mr Harris receives various pensions totalling £16,369 per annum.

TWO DIFFERENT APPROACHES

Counsel for Mr Harris referred to the case of William Wales v. The Advocate General for Scotland [2015] CSOH 111. In that case the Court considered the appropriate level of provisional award for a 69 year old man who had developed pleural plaques. Mr Wales was extremely anxious that he would develop a more serious asbestos related condition.

Lord Pentland in Wales identified a range of potential provisional awards, between £5,500 and £9,000, depending on the level of anxiety of the pursuer. Lord Pentland assessed an appropriate award for Mr Wales in the sum of £8,500.

Counsel for Mr Harris argued that the level of anxiety suffered by him was less than Mr Wales, and in the mid-range of anxiety levels. He argued that the provisional element of the award should be £7,500 plus interest (at 4%).

The key issue in the case was how to deal with the uplift in respect of a full and final award.

The argument on behalf of Mr Harris was that the approach adopted by Smith LJ in Rothwell v. Chemical and Insulating Co Ltd & Anr [2006] EWCA Civ.27 should be applied. This approach assesses the percentage risk of developing a more serious asbestos condition and applies that to the value of any future claim for mesothelioma.

Counsel for Mr Harris argued that he should be awarded 5.2% of his potential awards for solatium, lost years and services. The total was calculated as £7,316, using the Ogden tables and making an appropriate deduction for accelerated receipt of damages. That was to be added to the provisional award totalling £7,917 inclusive of interest. Counsel sought decree totalling £15,233.

Counsel for the Advocate General argued that this approach was not necessary. One could simply look at the pursuer's age and level of anxiety, and previous court awards. A strict arithmetical approach could result in over-compensation. It was argued that the appropriate way to proceed would be to award a global sum to reflect all of the injuries actual or potential.

He placed particular reliance on Hooper v. Prescott [2005] 2 QR 22, an analogous case with a current value of £7,150. He argued for solatium of £7,500 plus interest, future financial loss of £600 and nursing services of £500, making total damages of £8,996.

THE DECISION

Lord Boyd of Duncansby favoured the approach put forward for Mr Harris. He had no difficulty in assessing the risks that flow from the injury claimed for and aggregating these, provided care is taken not to double count.

Lord Boyd also agreed with the solatium figure submitted by Mr Harris' counsel. He accepted that 5.2% of the appropriate awards for the other heads of claim was correct. His only difficulty was with potential over-compensation as a result of accelerated receipt. However, like Smith LJ in Rothwell he concluded that there was no obviously satisfactory way of dealing with this and agreed with her that:

"The only practicable way seems to me to assume that the onset of disease and/or death will occur about half way through the remaining span of expected life and to make approximate adjustment." (paragraph 179, page 1508).

Interest on the provisional damages award will now be recalculated before decree is granted, but the total full and final award will approach £15,500.

THE IMPACT

Going forward, in cases where a full and final award is sought, for whatever reason, medical evidence will be required to assess the likelihood of the individual developing a more serious asbestos related condition. Over and above that, vouching in terms of potential financial losses arising as a consequence of early death will be required in order to calculate the potential value of any future claim for mesothelioma.

This has the result that each pleural plaques claim will have to be assessed on its own facts and circumstances. This will require additional investigation and create potential delay in progressing claims to settlement.

This is against the background of historic standard figures for settling provisional and full and final claims. Since the introduction of the Damages (Asbestos Related Conditions) (Scotland) Act 2009 there has been in place a framework for assessing the level of damages, both in respect of provisional and full and final, which was adopted in the vast majority of cases. The formulation of any future framework will be complicated by the fact that all claims will potentially require detailed investigation in relation to risk as well as the quantum of future claims.

Following the civil court reforms in Scotland in September 2015, pleural plaques claims require to be raised in the All Scotland Personal Injury Court (ASPIC). Under the old regime, when claims were raised in the Court of Session, there was a Practice Direction in place which sisted/stayed all plaques claims until full information was available to allow the case to progress. Given that additional information is now going to be required following Lord Boyd's decision, it is anticipated that pleural plaques claims in ASPIC will be sisted pending receipt of full information. Clyde & Co will argue this point in the coming weeks.

Harris v. MOD [2016] CSOH 49

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