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||Neutral Citation Number:  EWHC 145 (QB)
||Case No: HQ11X03496
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MRS JUSTICE SWIFT DBE
Mr Ivan Bowley (instructed by Fentons Solicitors LLP) for the Claimant
Mr Michael Ditchfield (instructed by Nabarro Solicitors LLP) for the Defendant
Hearing date: 26 January 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Honourable Mrs Justice Swift :
- This is a mesothelioma claim brought by a living claimant, Mr Dennis Ball. Between about 1967 and 1985, the claimant was exposed to asbestos dust in the course of his employment with the National Coal Board and/or the British Coal Corporation, to whose liabilities the defendant has now succeeded. Proceedings were commenced on 21 September 2011 and judgment was entered in the claimant's favour on 8 December 2011 with damages to be assessed. The assessment hearing took place before me on 26 January 2012.
- By the time of the hearing, all issues of damages save one had been agreed between the parties. The outstanding issue for determination was the award of damages for pain, suffering and loss of amenity (PSLA). I heard oral submissions on the issue from Mr Ivan Bowley for the claimant and Mr Michael Ditchfield for the defendant. No live evidence was called. The claimant was not well enough to attend the hearing and his witness statement was admitted under the provisions of the Civil Evidence Act, 1968. His stepson, Mr David Taylor, provided a witness statement which was agreed by the defendant. There was also a medical report from Dr Robin Rudd, consultant respiratory physician, written after perusal of the claimant's medical records.
Before the onset of symptoms arising from his mesothelioma
- The claimant was born on 23 November 1919. He is now 92 years old. At the time of the onset of symptoms arising from his mesothelioma, he was living alone in a flat and receiving some assistance with his shopping, together with "meals on wheels". He has a long history of serious psychiatric problems although, for some time now, these appear to have been controlled by medication. He was in reasonably good physical health, although his mobility was limited by pain in his knees and he walked with a stick. He was virtually housebound and led a somewhat isolated life, save for regular visits from Mr Taylor and Mr Taylor's children.
The history as set out in the medical records
- The claimant's medical records reveal that his chest symptoms began about a year ago. On 26 January 2011, his GP visited him at home and noted that he had had a chesty cough with green sputum for several days. Antibiotics were prescribed. On 17 February 2011, it was noted that the claimant was not responding to the antibiotics. He was still coughing up a great deal of green phlegm. Over the previous fortnight he had been suffering from recurrent pain in the lower abdomen with some diarrhoea. He felt sick "all the time", had no appetite and had lost weight.
- The claimant's condition deteriorated and, by the middle of March 2011, he was very unwell indeed. His cough had worsened and he began to suffer from shortness of breath. On 21 March 2011, Mr Taylor visited the claimant at his flat to find him lying on the floor. He was very short of breath. Mr Taylor tried to persuade the claimant to let him call an ambulance but the claimant refused. The following day, when the volunteers who helped with the claimant's shopping arrived at his house, they found that he was unable to get out of bed. His GP attended and found him lying in bed, alert but "somewhat confused". Arrangements were made for him to be admitted to hospital as an emergency.
- On admission to hospital, the claimant was described as confused and agitated. He was very short of breath and was coughing constantly. A chest x-ray showed a left pleural effusion. He was nursed on oxygen to help with his breathing. A pleural aspiration was performed on 28 March 2011. The resultant cytology appearances suggested that he was suffering from a malignant mesothelioma. On 31 March 2011, the claimant was told of the probable diagnosis. It was explained that the condition was incurable but that it should be possible to get his symptoms under control. He was listed for a thoracoscopy with a view to removing the pleural effusion (to relieve his breathlessness) and confirming the diagnosis of mesothelioma.
- On 6 April 2011, a left thoracoscopy was performed during which 3.5 litres of fluid were drained from the claimant's chest and biopsies were taken. Talc was inserted into the pleural space in an attempt to effect adhesion between the pleural layers (pleurodesis) and thus to prevent recurrence of the effusion. The biopsies confirmed the diagnosis of a left-sided pleural mesothelioma.
- Following the thoracoscopy, the claimant was reported to have some pain but was otherwise reasonably well. He was anxious to go back to his flat. He did not want to go into a Nursing Home. In the next few days, his temperature was raised. An infection of the pleural space was suspected and he was treated with antibiotics administered intravenously. He developed acute urinary retention and underwent a bladder scan followed by catheterisation. He also developed a pressure sore. On 19 April 2011, he was reviewed by a member of the hospital palliative care team who noted that he complained of feeling uncomfortable all over and became breathless after talking for a while. He was now using a walking frame, rather than a stick as previously. He felt "depressed". He wanted to go home but was concerned about how he would manage. In the event, Mr Taylor managed to find a Nursing Home which was able to meet the claimant's needs and he was discharged there on 23 April 2011.
- When the claimant's GP visited him at the Nursing Home on 27 April 2011, the claimant was not in pain, although he was breathless when speaking. He still had a pressure sore and his legs were weak. On the night of 2/3 May 2011, his catheter became blocked and there was concern that he might have a urinary infection. No treatment was advised at that stage and the catheter remained in position.
- On 6 May 2011, the claimant's GP visited him again. On this occasion, he was more alert than when she had seen him previously. On that occasion, he had not appeared to understand the nature of his condition or the fact that it was terminal. At this visit, however, he seemed to be aware of the diagnosis of cancer and its implications and expressed surprise that he still felt "well" at that time. Four days later, however, the claimant had deteriorated and reported that he felt "terrible". He was unable to talk in sentences due to breathlessness. He looked tired and unwell. His GP prescribed diamorphine oral syrup (Oromorph) to be taken as necessary for his breathlessness. By 11 May 2011, it was noted that he was more settled and less short of breath after taking the Oromorph. His respiratory rate was still raised but his breathing was less laboured than on the previous occasion. His GP provided prescriptions for injections of diamorphine and other drugs to be administered by the district nurses in the event of the onset of severe pain and/or respiratory distress. By 13 May 2011, the claimant was using Oromorph only occasionally.
- Between mid-May and the beginning of July 2011, the claimant's condition appeared to be stable. He was described in the GP's records as "quite bright and alert" with no pain. His breathing was said to be "the same". On 1 July 2011, it was noted that he had "no shortness of breath". In early July 2011, a decision was taken to remove the claimant's catheter. A few days later, on 7 July 2011, he was reporting that he had urinary frequency at night. He indicated that, if this persisted, he would prefer to have the catheter re-inserted. A urinary tract infection was diagnosed and treated with antibiotics. No medical records are available for the period after July 2011.
The witness evidence
- In his witness statement, signed on 22 July 2011, the claimant said that the diagnosis of mesothelioma was a shock to him. He observed that the staff at the Nursing Home look after him well and that he had morphine available if it was necessary for pain control. He made no reference to his symptoms or to the effects of his illness upon him. Mr Taylor's witness statement, dated 31 December 2011, described the support and assistance that he and his children have given to the claimant, both before and during his illness. Between them, they have visited the claimant daily during his time in hospital and at the Nursing Home and they (Mr Taylor in particular) have provided him with much-needed emotional support. Like his stepfather, Mr Taylor did not give any details about the claimant's symptomatology or the effects of his illness upon him. He did however observe that, before his illness, the claimant had been fiercely proud of his independence and his ability to live on his own in his flat. He said that, when he was discharged from hospital, the claimant was adamant that he would return home after a short time in the Nursing Home. However, because of his illness, he has been unable to do so.
The Nursing Home care records
- I have seen a bundle of care records from the Nursing Home where the claimant now lives. They give some impression of the claimant's general state over the past six months or so. It seems that his condition has remained reasonably stable. There is no indication that he has suffered a significant amount of pain or that his breathlessness has deteriorated. He is described as a very private person who likes to spend his time in his own room, reading and watching television or DVDs. He obviously enjoys Mr Taylor's visits. He shows a marked disinclination to discuss with members of staff at the Nursing Home any issues relating to his death.
The evidence of Dr Rudd
- Dr Rudd's Report was written in September 2011. He related the medical history set out in the claimant's records and confirmed the diagnosis of malignant mesothelioma of the pleura. In relation to the future prognosis in the claimant's case, Dr Rudd observed:
"Eventually it is inevitable that there will be continued deterioration in his condition, probably with worsening pain, increasing breathlessness, loss of appetite and weight and progressive debility. Commonly pain becomes severe so that morphine or similar analgesics are required and sometimes it is intractable despite large doses of strong analgesics. Breathlessness may become severe as the tumour progresses to constrict the lung so that it cannot expand. The tumour may spread to constrict the heart and it may spread to the other lung causing even more severe breathlessness. Sometimes the tumour spreads to other parts of the body including the abdomen where it may cause swelling due to accumulation of fluid, pain, vomiting and bowel disturbance."
- Dr Rudd went on to say that it was likely that the claimant would become completely incapacitated and in need of constant nursing care towards the end of his life. He estimated the claimant's life expectancy, as from the end of September 2011, at three months, with a likely range of between one and five months, but a significant chance that he may die sooner or survive a little longer than that range would indicate. He said that, had it not been for his mesothelioma, the claimant's predicted life expectancy would have been 2.9 years.
Past awards of damages for pain, suffering and loss of amenity in mesothelioma cases
The JSB Guidelines published 2004 and 2006
- In the course of counsels' submissions I was referred to successive editions of the "Guidelines for the assessment of general damages in personal injury cases" (the JSB Guidelines), published by the Judicial Studies Board (now known as the Judicial College). The JSB Guidelines are not intended to prescribe the levels of damages that judges should award. They are intended to assist judges by setting out what the authors consider to be the current levels of awards that have been and are being made by judges up and down the country. Judges are not obliged to follow the Guidelines. Inevitably, however, they are extremely influential, in particular with conditions such as mesothelioma about which few judges have any specialist knowledge. The Guidelines are also routinely used by practitioners when valuing and settling personal injury claims. The brackets of awards contained in the JSB Guidelines are up-dated in each new edition to take account of inflation.
- In the seventh (2004) edition of the JSB Guidelines, the bracket of awards for mesothelioma was stated to be £45,000-£70,000. That bracket was accompanied by the following commentary:
"Mesothelioma causing severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. The duration of pain and suffering accounts for variations within this bracket. For periods of up to 18 months, awards in the bottom half of the bracket may be appropriate; for longer periods of four years or more, an award at the top end. "
- The eighth edition of the JSB Guidelines, published in 2006, contained a commentary in identical terms. In order to take account of inflation the bracket had been raised to £47,850-£74,300.
Awards made during the currency of the seventh (2004) and eighth (2006) JSB Guidelines
- As the authors of the JSB Guidelines have pointed out more than once, there are relatively few reported awards by judges in mesothelioma cases. Such cases frequently settle. They rarely appear in the Reports and, where the award has been made in the County Court, a transcript is not often available. Usually there is only a short note in Kemp and Kemp or on Lawtel. For the purposes of this case, Mr Bowley helpfully prepared a schedule of those awards that he had been able to find. I shall refer to some of those awards, adopting a reverse chronological order and starting with the period for which the seventh (2004) or eighth (2006) editions of the JSB Guidelines were in force.
- In S (widow and administratrix of the estate of S, deceased) v Circaprint Ltd (2005) noted on Lawtel, Master (now Senior Master) Whitaker awarded £67,000 (current value £84,911) in respect of a man aged 52 years who had suffered symptoms as a result of his mesothelioma for about 15 months before his death. He survived for 11 months after diagnosis. During that time, he underwent several invasive procedures including biopsies, lung drains, a bronchoscopy and a talc pleurodesis. In addition, he underwent radical courses of chemotherapy and radiotherapy. He also underwent an extra-pleural pneumonectomy, involving the removal of his right lung, pleura and part of the diaphragm and pericardium. He left a dependent wife but no dependent children. He was a relatively young man who would, but for his mesothelioma, have had a substantial life expectancy. The award in this case was quite close to the top of the bracket of awards identified in the seventh (2004) edition of the JSB Guidelines (about £70,900 updated to January 2005). Given the claimant's comparative youth, together with the invasive and painful surgical procedures he had undergone, that is not surprising. It confirms the fact that the bracket, as identified in the Guidelines, was broadly in line with the awards being made by judges at that time.
- In Sheila Constance Butler (widow and executrix of the estate of Alfred George Butler deceased) v JB & S Houchen Ltd (2007), noted on Lawtel, Master Whitaker made an award of £65,000 (current value £76,130) for PSLA in respect of a man who died from mesothelioma at the age of 68 years. He had initially been diagnosed with pleural thickening in 2000. Fluid had built up in his lungs and he underwent an operation to drain off the fluid. A further build-up of fluid occurred the following year and it was drained again. He had a talc pleurodesis and a biopsy which confirmed that, at that stage, his condition was benign. Subsequently, he developed intermittent pains in the left side of his chest together with shortness of breath on exertion. At that time, his respiratory disability was assessed at 20%, 15% due to the pleural thickening. In June 2005, Mr Butler was diagnosed with a malignant mesothelioma. Thereafter, his condition deteriorated rapidly. He underwent a course of chemotherapy in August and September 2005, which caused nausea, lethargy, tinnitus and anaemia. He required a blood transfusion. As his disease progressed, Mr Butler suffered from excessive sweating, loss of appetite and a significant loss of weight. He died in February 2007. The award for PSLA was made on the basis that Mr Butler had suffered acute symptoms relating to his mesothelioma for 3 years prior to his death. The relatively long period of pain and suffering and the various investigations and therapy Mr Butler had undergone plainly justified an award towards the upper level of the bracket of awards in the eighth (2006) edition of the JSB Guidelines.
- In March 2007, His Honour Judge Walton, sitting in Newcastle-upon-Tyne County Court, made an award for PSLA of £20,000 (current value £23,425) in the case of Gallagher, deceased v Vinters Armstrong and SHSEGL Realisations Ltd (2007), noted in Kemp and Kemp. Mr Gallagher was 70 years old at the time of the onset of his symptoms arising from mesothelioma. In mid-June 2003, he began to suffer from constipation. Three weeks later, he consulted his GP who noted that he was looking ill. By 12 August 2003, he was experiencing shortness of breath on limited exertion and on 2 September 2003, he was admitted to hospital. Within a week, he could only walk a few yards. On 13 September 2003, a diagnosis of mesothelioma was made and he died four days later. The Judge observed that, in the majority of mesothelioma cases, symptoms would be evident over a period of one to three years before death. He said that, because of the short period for which Mr Gallagher had suffered symptoms (about three months), this was not a "typical" mesothelioma case. As a consequence, he considered that he was not assisted by the JSB Guidelines. Instead, he made an award that was less than half of the lower end of the bracket of awards identified in the eighth (2006) edition.
- Another case which was decided during the currency of the eighth (2006) edition of the JSB Guidelines was George Smith (administrator of the estate of Graham Smith, deceased) v Bolton Copper Ltd (10 July 2007), transcript. Mr Graham Smith, who was 64 at the time of his death, developed breathlessness which deteriorated until, by 7 January 2006, it was so bad that, after walking half a mile, he could not stand without support. Thereafter, he went downhill fast. He found it difficult to get up and down stairs, he could not sleep and was suffering from breathlessness and pain. After about three to four weeks he was admitted to hospital where he underwent investigations and a pleural aspiration, followed by biopsies. The investigations revealed the presence of both pleural and peritoneal mesothelioma. He was prescribed morphine and discharged. His pain persisted, despite the morphine. A few days later, he was re-admitted for bronchoscopy but was too ill to undergo the procedure. His condition worsened and he received increasing levels of morphine to combat the pain until his death on 15 March 2006.
- Master Whitaker found that Mr Graham Smith must have suffered symptoms for some time before the incident on 7 January 2006. He concluded that the total duration of the symptoms from onset to death had been between two and three months. He accepted the evidence of Mr George Smith that his brother had suffered great pain during his illness, which had not been effectively controlled.
- The defendants in Smith contended that, because of the short duration of symptoms, the case was exceptional and the award of damages for PSLA should be below the bottom of the range identified in the eighth (2006) edition of the JSB Guidelines. At the time the case was heard, the bottom of the range was about £49,000. The Master declined to award damages outside the "usual" bracket. He pointed out that there were factors to be considered other than the duration of symptoms. He said:
. The guidelines
say, "The duration of pain and suffering accounts for variations within this bracket." In my judgment, that is a statement which, while it is true to a certain extent, does not take into account all of the matters which, in my experience over the last five years, account for the several variations. For example, one of the other factors which I take into account and which I think should be taken into account, is the extent of the unpleasant surgical procedures, which the victims of mesothelioma may have to undergo. It seems to me that radical surgery, something which probably was not so common at the time these guideline notes were first written a few years ago, is something which particularly exacerbates the level of damages. It is an extremely unpleasant procedure which involves taking out the lung on one side together with the lung lining.
One also has to bear in mind that typically the worst symptoms of pain suffering and loss of amenity occur in the last weeks and days of the disease's progress, and that the death is, particularly when the pain is not well controlled, a horrible one. "
The Master went on to say:
"In my judgment, while this [i.e. the bracket in the JSB Guidelines] is only a guideline, as a bracket it is a very fair spread which is intended and, in my judgment, does take into account, all cases of mesothelioma, from those of the shortest duration to the longest, and is capable of taking account of varying levels of pain and varying levels of medical procedure and surgical intervention. In my judgment, the bottom of the bracket is intended for people who contract the disease but who suffer only the worst symptoms commonly suffered before death and the death itself, and not a protracted period of gradually worsening symptoms before hand."
"A typical victim with a survival from the onset of symptoms of 18 months will, for example, have suffered all the invasive procedures, the biopsies, et cetera, at perhaps an earlier stage and will not be, if I can put it in the vernacular, "poked about" so much during the very worst stages in the last few months, but what makes this type of case, a case of short duration, worse, in my judgment, rather than one which is better (if one can put it that way) is that the two things get telescoped. This is a man who suffered the whole lot of the worst symptoms and medical procedures during a period of between two and three months. Not only the worst symptoms, the final symptoms, the trauma, the pain, the bewilderment, the anxiety, the shock, as it has been described, of the diagnosis, but also has had to go through the procedures, the drainage, the biopsies, et cetera, during the very same period. It all happened extremely quickly. That, in my judgment, is no reason for saying that the damages should fall outside the bracket. Far from it."
He went on to make an award of £55,000 (current value £63,886). It should be noted that Senior Master Whitaker has for some time been in charge of the list of mesothelioma cases at the Royal Courts of Justice and therefore has great experience of such cases.
- The case of Margaret Cameron (widow and administratrix of the estate of Donald Cameron deceased) and Vinters Defence Systems Ltd  EWHC 2267 (QB) was decided in October 2007. Mr Cameron was 71 years old when he first became breathless and lost his appetite. After between five and six months, he was persuaded by his family to seek medical advice. That resulted in his emergency admission to hospital where he remained for three weeks and underwent investigative procedures, the nature of which was not specified in the judgment. The investigations revealed the presence of a malignant pleural mesothelioma. The evidence of his widow was that, on his discharge from hospital, he was bed-bound and required help with all daily activities. He had to wear an oxygen mask at all times and required constant care until his death just over a fortnight later. The total period of symptoms was about six months.
- Holland J considered the eighth (2006) edition of the JSB Guidelines. He noted that the commentary stated that, for periods of pain and suffering of up to 18 months, awards in the bottom half of the bracket may be appropriate. He was referred to the award in Gallagher. He concluded that, whilst the JSB Guidelines must be his starting point, some departure from those Guidelines was justified by reason of the short duration of Mr Cameron's suffering. He made an award of £35,000 (current value £40,110). Although significantly higher than the award made by Judge Walton in Gallagher, the award in Cameron was still well below the lower end of the bracket identified in the eighth (2006) edition of the JSB Guidelines which, updated to October 2007, was about £50,000.
Awards made during the currency of the ninth (2008) edition of the JSB Guidelines
- The ninth edition of the JSB Guidelines was published in June 2008. The bracket of awards for cases of mesothelioma had been updated for inflation and was now £52,500-£81,500. The commentary was in identical terms to that which had appeared in the two previous editions save that an additional sentence had been added:
"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."
It seems likely, as Mr Bowley suggested in submissions in the present case, that the additional sentence was based on the award in the case of Gallagher. It did not appear to take account of the views expressed by Master Whitaker in Smith. It was to prove controversial.
- In November 2008, His Honour Judge Platts, sitting at Liverpool County Court, heard the case of Elaine Storey deceased v James Marmon and Sons Ltd (2008), noted in Lawtel. Mrs Storey was 78 years old at the time of her death in April 2006. She attended her GP in July and August 2005, complaining of a cough that did not improve. In January 2006, she was still suffering from a cough. By the following month she also had pains in her chest. An x-ray was taken at the end of February 2006, and she was referred to hospital for investigations. Over the next fortnight, her condition deteriorated. A bronchoscopy was attempted but she developed tachycardia and it had to be abandoned. She died in hospital. Prior to her illness, Mrs Storey had suffered from heart problems and arthritis but had enjoyed a good quality of life. She had been able to go out and about and had derived particular pleasure from the company of her friends and family.
- Judge Platts considered the bracket of awards for mesothelioma and the commentary thereto in the ninth (2008) edition of the JSB Guidelines. He observed that he found them "hard to fathom". He considered that to restrict damages for PSLA to £25,000 because the period of symptoms had been short would be wholly inappropriate and "an affront to anyone's sense of justice". He found that Mrs Storey had undergone a significant and painful period of suffering. She had known that her symptoms were going to lead to her death and that asbestos had probably been the cause. Furthermore, the impairment of her quality of life over the four months immediately before her death had caused Mrs Storey substantial distress. The judge accepted that an award lower (although not significantly lower) than the bracket of awards identified in the JSB Guidelines was appropriate because of the relatively short period of suffering. He awarded the sum of £47,500 (current value £52,646), i.e. £5,000 less than the bottom end of the bracket identified in the ninth (2008) edition of the JSB Guidelines.
- In Streets v Esso Petroleum Co. Ltd (2009), noted on Lawtel, Mr Nigel Wilkinson QC, sitting as a Deputy High Court Judge, awarded £65,000 (current value £72,042) for PSLA. Mr Streets, who was aged 60 years at the time of his death, had symptoms, including night sweats and weight loss, for about six months before his death and suffered chest pain for the final four months of his life. He underwent lung drainage, biopsies and pleurodesis. He left a wife and 22 year old son who were both dependent on him. Despite the comparatively short duration of Mr Streets' symptoms, the award was in the middle range of the bracket identified in the ninth (2008) edition of the JSB Guidelines.
- The case of Ronald Dunn (administrator of the estate of Alan Dunn, deceased) v National Grid Gas PLC (13 January 2010), transcript, was heard by His Honour Judge Gregory sitting at Walsall County Court. Mr Alan Dunn was 66 years old when he developed symptoms of loss of appetite, weight loss and lethargy. The judge found that the onset of his symptoms occurred about six weeks before his death. Before then, he had been an active man living on his own, although he had previously been diagnosed with pulmonary fibrosis and cardiac problems for which he had undergone surgery. Mr Alan Dunn was admitted to hospital about a fortnight before his death. By that time, he was very ill. He underwent invasive investigations and, as the judge found, he "suffered a great deal". He was aware of the diagnosis only two days before his death.
- It was submitted by counsel for the defendants in that case that it fell within the category for which an award of about £25,000 might be appropriate, in accordance with the commentary in the ninth (2008) edition of the JSB Guidelines. The cases of Gallagher and Cameron were cited in support of an award significantly less than the bracket of awards for "usual" cases contained in the Guidelines. The claimant's counsel argued that the figure of £25,000 suggested in the ninth (2008) edition of the JSB Guidelines was simply too low. He relied on the decision in Smith and the approach taken by the judge in Storey.
- Judge Gregory declined to accept the submissions of the defendants' counsel. He said:
The fact of the matter is that, in my judgment, they [i.e. the JSB Guidelines] are, broadly speaking, as now drafted, generally out of step with the approach that courts have taken and, bearing in mind the extent to which that sort of award - £25,000 differs from the type of award contemplated by Master Whitaker [in Smith], they are, it seems to me, significantly out of step. I have come to the conclusion that if such a radical departure from the general level of awards which the courts make in this type of case, which it seems to me are to a certain extent "sui generis", is to be taken, it ought to come from the Court of Appeal and not the JSB".
- Judge Gregory observed that Mr Alan Dunn's case involved all the "general horrors" of mesothelioma, despite the short duration of symptoms. He took into account the fact that Mr Alan Dunn did not have the distress of leaving a family who depended on him for care and that he had been aware of the diagnosis for only a short time before his death. He made an award of £45,000 (current value £49,440), which was below the bottom of the bracket identified in the ninth (2008) JSB Guidelines but significantly higher than the awards in Gallagher or Cameron.
The tenth (2010) edition of the JSB Guidelines
- The tenth edition of the JSB Guidelines was published in September 2010. The bracket for awards in mesothelioma cases had changed significantly from that contained in previous editions. In the ninth (2008) edition of the JSB Guidelines, the lower end of the bracket had been identified as £52,500 (current value about £58,000). In the tenth (2010) edition of the JSB Guidelines, it had been reduced to £35,000. By contrast, the upper end of £83,750 remained at the same level as in 2008, with some updating for inflation. The accompanying commentary had also been amended. The section referring to awards for longer, shorter and unusually short periods of pain and suffering had been deleted. The commentary stopped at the sentence:
"The duration of pain and suffering accounts for variations within the bracket".
The consequence of these changes was that the bracket for mesothelioma awards is now very wide, with over £50,000 between the higher and lower levels of the bracket.
The parties' submissions
- Mr Bowley submitted that the true bracket of damages for PSLA in mesothelioma cases was that which had been identified in all but the latest edition of the JSB Guidelines. Up to the time of its publication, the upper and lower figures of the bracket had remained constant for many years, the only change being the updating of the figures for inflation. He argued that the bracket had reflected the awards generally being made and the level of settlements being reached in courts up and down the country. He suggested that the appearance in the ninth (2008) edition of the JSB Guidelines of a suggested figure of about £25,000 for a case involving a short duration of symptoms represented a complete departure from the previously accepted bracket. It did not appear to take account of the (obviously correct) observations made by Senior Master Whitaker in Smith to the effect that duration of symptoms is only one of the factors to be taken into account when assessing damages for mesothelioma.
- As to the significant reduction in the lower end of the bracket of awards introduced by the tenth (2010) edition of the JSB Guidelines, Mr Bowley observed that it appeared to have been an "unhappy compromise" which attempted to reconcile opposing views about the validity of the lower figure previously suggested for cases involving a short duration of symptoms. It did not reflect the fact that most mesothelioma cases would fall within the original bracket of awards identified in previous editions of the JSB Guidelines. In those cases with atypical features, it was open to the judge to make an award below the bottom end of the bracket, as happened in Storey and Dunn. It was, Mr Bowley suggested, wrong in principle for the lower end of the bracket to be reduced merely to accommodate cases with unusual features. Moreover, the reduction did not reflect the awards actually being made in the courts. It was not clear from where the lower level of the bracket (£35,000) had been drawn.
- Mr Ditchfield suggested that Mr Bowley's approach was over-technical. He submitted that it was impossible, from the relatively few reported decisions in mesothelioma claims, to discern any overarching principle. The starting point must be the JSB Guidelines. He submitted that they represent a "fair spread" of the kinds of awards that have been made by the courts. The Guidelines are compiled by a team of people with a good knowledge of the subject matter and should therefore command confidence.
Discussions and conclusions
- I am concerned at the emphasis which successive editions of the JSB Guidelines have placed on the primacy of duration of symptoms when determining the appropriate award of damages for PSLA in a mesothelioma case. The commentary states that the duration of symptoms "account for variations within the bracket". Now that the courts have dealt with many hundreds of mesothelioma claims, it is evident that there are a large number of factors other than duration of symptoms that will (or should) affect the level of award made in an individual case.
- I share the view expressed by Senior Master Whitaker in Smith that one of the factors to be taken into account is the extent and effects of the invasive investigations that a claimant/deceased has had to undergo. Senior Master Whitaker also mentioned radical surgery, which can be unpleasant and painful. To that I would add also the chemotherapy and radiotherapy that may be administered in an attempt to prolong life and often produce distressing and debilitating side effects. Another factor is the type (or, in some cases, such as Smith, the types) of mesothelioma from which the claimant/deceased suffered i.e. whether it was peritoneal or pleural. There are also cases, as described by Dr Rudd (see paragraph 14 of this judgment) where the tumour spreads to encase the lungs and where other organs become involved as a result of the spreading of the tumour or metastasis, causing additional pain and/or breathlessness.
- The level of symptoms must be a key factor. If the symptoms (in particular pain) are not or cannot be effectively controlled, that is an important consideration. As Senior Master Whitaker observed in Smith, it must be borne in mind that, typically, the worst symptoms of pain occur in the last weeks and days before death and that the symptoms immediately preceding death can be particularly severe. I consider that it is relevant to bear in mind also that, even if a deceased's death has in the event been relatively peaceful, he or she will have been fearful since being told of the diagnosis of mesothelioma that a painful and distressing end lies in store. Obviously, the duration of the symptomatology is also a factor, although not of itself determinative of the level of award.
- The level of award will also be affected by matters such as the domestic circumstances and previous state of health and level of activity of the claimant/deceased. A young fit man, with a wife and dependent children, an active life and what would (but for his mesothelioma) have been a long life expectancy will suffer a very considerable loss of amenity as a result of his illness and the knowledge that he will die prematurely. He is also likely to suffer heightened distress and anxiety at the prospect of leaving his family to cope. By contrast, an older claimant/deceased may not have had those particular anxieties and may, because of his/her age, health and situation, experience less of a restriction of his/her activities as a result of the onset of illness. It seems to me that these considerations should also be taken into account. It is important to remember, however, that a person of any age who is informed that his or her life will be cut short by the effect of a harmful substance to which he or she has been wrongfully exposed is likely to suffer a good deal of distress.
- The list of factors to which I have referred is not of course intended to be exhaustive. I merely wish to illustrate the point that the assessment of damages in mesothelioma cases is far more complex than the emphasis in the JSB Guidelines on "duration of symptoms" would suggest. Of course, most judges are well aware of this and, as illustrated by many of the cases to which I have referred, routinely take into account a wide range of other factors. However, the current terms of the commentary contained in the JSB Guidelines tend to encourage the "pigeon holing" of claims by reference to duration of symptoms alone. There is a real risk that cases may be settled or awards made without those involved taking sufficient account of other important factors.
- I am also concerned at the significant reduction of the lower level of the bracket of awards contained in the latest edition of the JSB Guidelines. The figure of £35,000 is well below all the awards I have referred to, save for those in Gallagher and Cameron (and Cameron would be worth £40,000 today). In the cases of Storey and Dunn, the awards made were below the lower end of the bracket in the edition of the JSB Guidelines then in force, but still significantly in excess of £35,000. It is difficult to understand the basis for that figure.
- The effect of the lowering of the bottom end of the bracket is to reduce the mid-point of the bracket from £67,000 (current value about £74,200) in the ninth (2008) edition of the JSB Guidelines to £59,735 (current value £63,000) in the tenth (2010) edition. This will tend to depress the level of damages awarded in an "average" case of mesothelioma where there is no unusual feature that would take the case out of the "norm". Such an outcome would not, it seems to me, be consistent with the pattern of awards by judges made in the past.
The claimant's case
- After those general observations, I turn to the claimant's case. His symptoms arising from his mesothelioma have been ongoing for almost exactly a year now. In February and March 2011, he was very unwell. This was no doubt due to the fluid accumulating in the pleural cavity. His hospital admission was followed by an unpleasant invasive procedure to drain fluid from his chest, take biopsies and carry out a pleurodesis. He had some pain, with a suspected infection and urinary retention necessitating the insertion of a catheter. There were instances of problems with the catheter and of urinary infection. He developed a pressure sore whilst in hospital. Breathlessness when talking was noted. The claimant remained in hospital for more than four weeks during which time he was described as "depressed", "uncomfortable" and anxious about his future. For a man with a fierce sense of independence and a fear of hospitals, this must have been a very difficult time for him. On the positive side, the claimant did not appear to complain of pain, save for the period immediately following his thoracoscopy. He did not require repeat draining of his pleural effusion. He did not have to undergo chemotherapy or radiotherapy. Nor did he have radical surgery. He has not (so far at least) developed metastases.
- Following his discharge from hospital, the claimant was not well and, in early May 2011, his condition (in particular, his breathlessness) appeared to be deteriorating to the extent that Oromorph was prescribed. Within a month or so, however, his condition had stabilised and, as I have said, the impression I got from the Nursing Home care records is that he has remained reasonably comfortable and pain-free. Catheterisation continued at least until July 2011 and (having regard to the last medical records) probably beyond. No doubt any significant exertion would cause him to become breathless. However, his way of life is such that he does not have to exert himself and it does not appear that his breathlessness has deteriorated. It remains to be seen whether the recent note in the Nursing Home care records marks the beginning of a decline in the claimant's condition.
- What is clear is that such a decline will occur at some point in the near future. It is impossible to say precisely what form it will take. However, I accept Dr Rudd's evidence that the probability is that the claimant will suffer increasing breathlessness, loss of appetite and weight, progressive debility and pain and that it is likely that he will require morphine or similar analgesics to combat it. I accept also that there is a risk (although not a probability) that his pain will be intractable and that his breathlessness will become severe. I cannot assume that, because the claimant has had a period of unexpected stability over the past few months, his end will not follow the usual pattern.
- The claimant has already survived for more than the period of three months estimated by Dr Rudd in September 2011. I consider that he is likely to survive to the upper end of the range of survival periods (one to five months) suggested by Dr Rudd, i.e. for a further two months, possibly longer.
- As to the claimant's psychological state, there were suggestions during and immediately after his time in hospital that he did not understand the nature of his diagnosis or its implications. Be that is it may, it is clear from the medical records that he has been well aware of the diagnosis and prognosis for more than five months now. He is a private man and has been unwilling to talk about his prognosis. However, there is no reason to suppose that he is not experiencing a real fear about the ordeal that may be in store for him, together with distress at the knowledge of his imminent death and its cause.
- In all the respects I have mentioned hitherto, the claimant's case can be regarded as a "typical" case of mesothelioma. This is not a case where the duration of symptoms has been short or the extent of pain and suffering (as yet) unusually severe. However, in one respect his age the claimant's case is unusual. None of the cases to which I have been referred involve a claimant in his eighties, let alone his nineties. The issue is what effect this should have on the award of damages.
- Mr Bowley submitted that the fact that the claimant is very elderly should not result in a significant reduction in his damages. Although he had a short life expectancy, those years that were left to him were as precious to him as the remaining years of a younger man. He had prided himself on being able to live independently in his own home and that was taken away from him. Mr Bowley submitted that I should reflect the claimant's age by making an award at or about the lower end of what was, until the publication of the tenth (2010) edition of the JSB Guidelines, the accepted bracket for mesothelioma cases, i.e. between £60,000 and £65,000.
- Mr Ditchfield argued that the claimant had suffered relatively little loss of amenity. Before the onset of his illness, he was frail, mobile only with a walking stick and was mainly housebound. He was managing to remain in his own home but was approaching the time when he may well have needed a greater degree of care in any event. As it is, the claimant is now (as he himself acknowledges) well cared for. He is able to pursue his activities of watching television, reading and seeing his family. Apart from a somewhat greater restriction in his mobility (which might have happened in any event), his activities are little different from what they would have been had he not developed mesothelioma. In the circumstances, Mr Ditchfield submitted I should make an award at the very bottom of the "new" bracket contained in the latest edition of the JSB Guidelines, namely £35,000-£40,000.
- The claimant's age means that he does not have the distress of knowing that many years, even decades, of his life have been denied to him. He has not had to give up work or active hobbies as a result of his illness. Before the onset of his illness, his activities were restricted by his age and state of health. His illness has served to increase those restrictions to a small but significant extent. Importantly, however, the onset of illness forced the claimant to leave his home and thus to lose his independence. Before his illness, he was managing in his flat with some help. It may be that he would have required additional support in time but there is no reason to suppose that this would not have been available in his own home. The importance that the claimant attached to his independent way of life is clear from his medical records and the evidence of Mr Taylor. It is exemplified by the fact that, even now, he continues to pay the rent on his flat, plainly clinging to the hope that he may one day be able to return there. Thus, despite his age, his disease has had a devastating effect on his life.
- Taking all these factors into consideration, I consider that the appropriate award of damages lies below the lower level of the bracket of awards identified in previous editions of the JSB Guidelines but significantly above the lower level which appears in the latest edition. In all the circumstances, I consider that the appropriate award of damages is £50,000. To that should be added interest (at 0.67%) in the sum of £335.
- In addition, damages have been agreed as follows:
Care : £ 3,929.16 Miscellaneous expenses : £ 250.00 Damages for lost years : £19,376.00
Total damages (inclusive of interest) are therefore £73,890.16
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