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.


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.


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.


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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.