Occupational Disease Brief: latest decisions April 2021
A roundup of recent court decisions raising issues relating to the JC Guidelines, ‘lost years’ claims and the latest CPR updates.
High Court provides guidance on the Judicial College Guidelines
Hamilton v NG Bailey Limited 
The High Court has clarified the correct application of the Judicial College Guidelines (JC Guidelines) with regard to provisional damages for asbestos cases.
The claimant developed asbestosis as a result of exposure to asbestos during his employment by the defendant between 1968 and 1981. Liability was admitted and the claim came before the court on the matter of quantum. The issue in dispute was the correct valuation of general damages.
The judge accepted the claimant’s expert evidence that the claimant will likely acquire an additional 5% respiratory disability in the course of his lifetime (though the figure could rise to 10%); and that he has a 5% risk of more severe and rapidly progressive asbestosis, a 3% risk of mesothelioma and a 3% risk of lung cancer (two thirds of which is asbestos related).
The judge held that there were two relevant brackets of the JC Guidelines which could apply to the claimant, namely:
- “£36,060 to £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 to £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 judge started by placing the claimant in the top end of the lower bracket giving a figure of £35,000 on the basis of a full and final award. He then reduced this sum to £30,000 but having considered this to be too low in light of the cases he had been referred to, he proceeded to conclude that the correct award for provisional damages was £32,000, stating that the “JC Guidelines are intended to be guidelines not tramlines”.
This judgment provides a helpful illustration as to how a judge may approach an award of damages on a provisional basis and reminds practitioners that the JC Guidelines are intended to “assist with, rather than dictate, an assessment.”
Contact: Philippa Craven
Court of Appeal overturns mesothelioma ‘lost years’ claim
Head v The Culver Heating Co Limited [18.01.21]
The Court of Appeal has offered useful guidance on the valuation of a ‘lost years’ claim.
The claimant, aged 60, had contracted mesothelioma due to asbestos exposure while working for the defendant in the 1970s. He was the managing director of a successful business. The claimant and his wife each held 45% of the businesses shares and the sons each held 5%. The claimant claimed general damages in the sum of £95,000 and damages under the lost years head came to just under £4.5million.
The defendant argued there should be no award at all, as the claimant’s earnings were capital rather than income and could be given away in his will. The High Court agreed, ruling that the claimant had suffered no loss of earnings since the business was so successful and as such, the income stream to the claimant’s family would continue after his death.
The Court of Appeal disagreed. The court held that the claimant could make a claim for loss of earnings as his income was considered the product of his own hard work and not the result of passive investment.
This decision illustrates the importance of not simply treating dividends as income from an investment but rather considering the reality and context of the claim. The decision also offers consistency as the same analysis is applied to both financial dependency and lost years claims.
Contact: David Bywater
Rule changes: latest CPR updates
The latest update to the Civil Procedure Rules (CPR) which came into force on 6 April 2021, includes a new rule change on Part 36 offers. The judiciary says that following inconsistency in case law, the rule change provides clarity: going forwards, a Part 36 offer can include accruals of interest but where it is silent on this point, the presumption will be that the offer is inclusive of all interest.
The new rules also contain changes in respect of vulnerable witnesses following a recommendation by the Civil Justice Council last February. The amendment makes clear that dealing with a case justly includes ensuring that the parties can participate fully, and that parties and witnesses can give their best evidence. It also deals with the costs (but not fixed recoverable costs) provision for additional work or expense incurred as a result of the vulnerability of a party or witness.
Contact: Cameron Clark