Assessing PSLA damages for mesothelioma victims

The case of Ball v Secretary of State for Energy [2012] EWHC 145 (QB), heard by Mrs Justice Swift, has focused attention on the contentious issue of the appropriate level of damages that should be awarded to mesothelioma victims in respect of their pain, suffering and loss of amenity (PSLA).

The 92-year-old claimant had been negligently exposed to asbestos for 18 years from 1967 onwards while working for the National Coal Board, and was diagnosed with mesothelioma in March 2011. Expert medical evidence estimated his life expectancy as at the end of September 2011 to be about three months, with a likely survival range of between one and five months. If it were not for the mesothelioma, his life expectancy was estimated to be 2.9 years.

The court was taken through the various editions of the JSB guidelines from 2004 onwards, and, while judges are not obliged to follow the guidelines, Mrs Justice Swift pointed to how influential they are, especially for judges with little experience of conditions such as mesothelioma; an important point which is also applicable in respect to claimant's legal representatives when negotiating settlements on behalf of their clients.

Problematic for the compilers of the JSB guidelines has been the small number of reported cases, with most mesothelioma claims being settled by negotiation, and any cases that are reported having an understandable significant influence on future JSB revisions. In the 2004 7th edition guidelines, the mesothelioma PSLA bracket award was set at £45,000-£70,000, and in the accompanying commentary it was stated: 'For periods of up to 18 months, awards in the bottom half of the bracket may be appropriate; for longer periods of four years of more, an award at the top end.'

Narrowing down

The 2006 8th edition contained identical commentary, but with an amended range of £47,850-£74,300. The subsequent 9th edition had an increased range of £52,500-£81,500, but with an additional sentence in the commentary stating: '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.'

In the latest 10th edition this sentence was left out, but the range amended to £35,000-£83,750, with the commentary stating: 'The duration of pain and suffering accounts for variations within this bracket.'

Mrs Justice Swift was concerned at the emphasis placed in the JSB guidelines on the primacy of duration of symptoms, and as such felt this led to the 'pigeon holing' of claims by reference to duration alone. She considered mesothelioma cases to be far more complex, with a far wider range of factors needing to be taken into account, agreeing for example with Master Whittaker (as he then was), who in George Smith v Bolton Copper Ltd (2007) considered that typically the worst symptoms of pain actually occurred in the final few weeks of life.

Of further concern to her was the significant reduction of the lower level bracket for mesothelioma in the 10th edition, pointing out that this effectively reduced the mid-point from previous edition ranges, and consequently would depress the level of damages awarded in so-called 'average' cases that contained no special features.

Influential decision

In respect to Mr Ball's mesothelioma, other than for his age his was considered to be a typical case of the disease, where the duration of symptoms were not particularly short and the extent of pain (to date) not unusually severe. The question was, however, what impact should his age have on the level of PSLA damages awarded? The defendant argued that little loss of amenity had been suffered, and considered an award at the very bottom of the bracket should be made.

Mrs Justice Swift recognised that the claimant would not have the distress of knowing that many years of life had been denied to him, and that he had not had to give up work or active hobbies as a result of the illness. However, Mr Ball had been shown to be a fiercely independent person, living alone, but with the onset of the disease this independence was lost, and he was now forced to live in a nursing home for his remaining life. The judge in recognition of the importance she placed on this loss of independence chose to award £50,000 in respect of PSLA.

This decision while obviously not of precedential value should prove highly influential in how PSLA damage awards are assessed by judges and legal negotiators in future cases. It clearly highlights the importance of taking into account all relevant factors relating to pain, suffering and loss of amenity endured as a result of the defendant's negligence, not merely relying on a time-based assessment of such factors. It should also help facilitate a further re-appraisal of the appropriate range of PSLA damages for mesothelioma in the next JSB guidelines revision.