Damages for pleural plaques
Grieves & Ors v FT Everard & Sons and Others: QBD (Mr Justice Holland) 15 February 2005
Ten claimants pursued cases to the High Court arising out of their contraction of pleural plaques - benign scarring of the lung which creates no physical disability. The defendants argued that no 'damage' had been caused by the plaques and in the alternative that, in any event, damages for pleural plaques, both on a provisional and full and final basis were too high.
The judge found that plaques in themselves do not create an 'injury'. However, the combination of penetration of the chest by asbestos fibres, evidenced by pleural plaques, and the risk of the future onset of symptomatic diseases, plus present and future suffering or loss of amenity created by the anxiety engendered by the contraction of the plaques, merits an award of damages. Therefore, the claimants were successful on this argument.
In terms of quantum, the judge appears to have wanted to impose mandatory provisional damages in these cases. There is mention within the judgment that he asked the parties whether he could impose a provisional award on each of the claimants and was told that, pursuant to CPR 41.2(1), he could not do so. The court can reject an application for provisional damages but it cannot impose an award. It is now open to discussion whether the judge has, via the back door, effectively created mandatory provisional awards.
In assessing general damages, the judge awarded a sum of up to £4,000 on a provisional damages basis rather than the current £5,000 to £6,000 outlined in the Judicial Studies Board guidelines. In respect of full and final awards that fall within the bracket of £12,500 to £15,000 (in the main), he awarded a sum of £6,000 to £7,000. One claimant achieved £10,000 on a full and final basis. Psychiatric evidence was adduced on his behalf to show that he was suffering from a depressive illness as a result of being informed of his asbestos-related condition.
It is instructive to look at some of the comments made by the claimants in evidence and the awards that they received. 'Nobody can convince me that it will not go further'; award £4,000. 'I recognise there is only a small percentage of people who are exposed to asbestos who go on to develop a more serious condition, but realising that I could be one of the small percentage, of course, makes me anxious.' He continued to say: 'Whenever I get a cough or a particular bout of breathlessness I think to myself is this the start of it?'; award £4,000.
The judge appears to have failed properly to compensate individuals for a mental condition for the understandable anxiety that results from knowledge of an asbestos-related illness. Many of the claimants will potentially have between 20 and 30 years of life remaining, during which they will have this shadow hanging over them. Does such an anxiety - that one may ultimately suffer from a life-threatening cancer - merit an award higher than £4,000? Looking at the Judicial Studies Board guidelines, one notes:
Surely 20 years of anxiety wondering whether one is going to contract a serious illness, particularly when many of one's friends do so, merits an equal award to a fracture of an index finger.
The judge, in making the assessment, looked to the way the Court of Appeal had considered damages in the loss of employability on the labour market claims - Smith v Manchester Corporation [1974] KIR 1 awards. He suggested that the current approach had departed from the guidance given by the Court of Appeal in such cases. He took the view that a 5% risk was 'a near minimal risk' and would leave a 95% chance that there would be no contraction of any further condition which was a chance that 'did not fall far short of a certainty'.
One could properly question whether assessing the risk of a claimant finding himself on the labour market can morally be compared with assessing the risk of the claimant suffering from a life-threatening condition. Beyond that, however, to suggest that the Court of Appeal has given guidance in relation to Smith v Manchester damages is unsustainable.
The Court of Appeal has provided no clarity whatsoever in relation to how to quantify the risks that arise in such cases. No definition of the qualifying terms 'substantial', 'real', 'speculative' or 'fanciful' have ever been provided. While the judge makes reference to the two-stage test adopted in Moeliker v A Reyrolle and Company Ltd [1976] 1 WLR 132, he fails to make reference to the judgment of Lord Justice Stevenson in the same case. He identified that, even if the risk of the claimant finding himself on the open labour market is fanciful, if the risk, should it happen, is real (in financial terms) then a higher award is appropriate. If one has to compare asbestos sufferers with those with the potential of losing their employment, then sufferers of pleural plaques may have only a 'slight risk' of contracting one of the more sinister asbestos-related illnesses, but should that risk occur then it is 'very serious' and certainly more so than finding other employment. To compare the two is unfortunate, but it is simply wrong to suggest that any guidance can be achieved when Lord Justice Taylor in Forrey v London Buses stated, 'the exercise of finding the appropriate figure ... must involve weighing up all the circumstances as best one can and taking a stab at what is an appropriate figure'.
It must be correct that the claimant should achieve damages when he has a combination of physical scarring of the lining of the lung and mental distress created by knowledge of the conditions from which he may ultimately suffer. To reduce damages from the current levels ignores the reality of both the anxiety that the condition causes and the consequences should the risk eventuate.
One suspects the defendants' insurers will claim that this decision saves them a considerable sum of money. However, as the difference between a provisional and full and final award is now only £2,000 to £3,000 more, claimants will be attracted to the former. The consequence is that the claims will live on the insurers' books for years and the risk of substantial awards remains live. Surely that was not what they sought to achieve.
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