Generally speaking, we are seeing changes to the profile of claimants suffering with mesothelioma, with more white-collar workers with better pension provision. This will impact on the value of mesothelioma claims.
Pain, suffering and loss of amenity (PSLA)
The Judicial College Guidelines set general damages between £63,650 and £114,460 for these claims. However, it is uncommon to see damages awards from the court for less than £100,000. The most recent edition of the guidelines indicate the factors that influence the level of award to include reported cases in the period since the last review. It is clear immunotherapy will impact on those factors relevant to PSLA.
Whilst immunotherapy is not a cure, it is a treatment that may improve life expectancy and symptom severity for some. If a claimant’s pain is reduced and life quality is improved by effective treatment, then it might appear logical for PSLA awards to fall.
However, given the adverse side effects of treatment and the likely future increases to the JC Guidelines to reflect general economic inflation, we do not expect to see reductions to awards for PLSA.
It is typical for a claimant to forgo expert care evidence and adopt a general care claim based on Rothwell v Chemical Insulating Co Limited , that gives an inflation adjusted award of approximately £19,000. This approach is based on Smith LJ stating that the disease has a predictable deterioration and therefore, care should be similarly predictable.
Immunotherapy has the potential to throw out this long-held assumption, resulting in longer periods of less intensive care, but with the rapid deterioration towards the end of life.
This may result in increased care claims because the costs are spread over longer periods and involve periods where the side effects of treatment are acute. There may also be an increased use of expert evidence which results in departing from the broad assessment and in turn, increases legal spend. Should this be the case, insurers should be prepared to take a more forensic approach to care than has perhaps been the case previously.
Lost years and dependency
With increased life expectancy, more claims are likely to be settled in life on a lost years basis, rather than a dependency basis.
We would also expect to see a reduction in the length of any lost years or dependency claims as claimants benefit from increasingly effective treatment regimes.
If more claims are resolved during the claimants’ lifetime, fewer claims will be brought under the Fatal Accidents Act 1976 which includes the statutory bereavement award.
There is potential for repayable CRU to be accumulating for longer periods. The accumulation of repayable benefits will not be stopping on death, as frequently occurs during litigation.
The law and accepted practice between claimant and defendant advisors is now relatively settled and standard agreements exist in respect of immunotherapy. The hope therefore is that any changes to treatment should not generate excessive legal costs nor prevent settlement.