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MESOTHELIOMA PSLA AWARDSA REVIEW OF MESOTHELIOMA QUANTUM AWARDS TO MAY 2017 Fourth Edition

BC LEGALB R I N G I N G C L A R I T Y

BC

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1.

2.

3.

Appendices

Tables 3: Awards by size

-Up to £40,000-£40,000-£49,999-£50,000-£59,999-£60,000-£69,999-£70,000-£79,000-£80,000+

Table 4: Awards by duration of symptoms

Table 5: Awards by age

Introduction

The Judicial College Guidelines

Actual Awards &Tariff Tables 1 and 2

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IntroductionMesothelioma is a hideous disease that is inevitably fatal

‘Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres’. Owing to the particularly unpleasant features of the disease the law specifically deals with it in a number of ways to protect victims.

Firstly, in mesothelioma claims, unlike other claims, a defendant can be liable for damages if, in breach of their duties, they materially increase the risk of an individual contracting mesothelioma; proof of causation on ordinary principles is not required. Under the Compensation Act 2006 where a ‘responsible person’ is liable then they pay 100% of the claim irrespective of whether there was exposure elsewhere.

Secondly, mesothelioma claims have been exempted, for the time being, from part of the wide ranging Jackson reforms to civil litigation. Therefore success fees and insurance premiums will continue to be recoverable. Further, mesothelioma claims are not subject to the Employers’ Liability and Public Liability Pre-Action Protocol for claims up to the value of £25,000.

Thirdly, mesothelioma claims are dealt with specifically in the Civil Procedure Rules. Practice Direction 3D lays down unique rules for mesothelioma claims and the Disease Pre-Action Protocol has provisions specific to mesothelioma claims.

1.1

1.2

1.3

1.4

[2011] UKSC 10, [2011] 2 AC 229 [1] (Lord Phillips).

Fairchild v Glenhaven Funeral Services Ltd [2006] UKHL 20, [2006] 2 AC 572.

Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 48. For more information on the Jackson reforms see: BC Legal, ‘Changes to the Civil Procedure Rules’ (BC Legal Update, April 2013) <http://www.bc-legal.co.uk/images/pdf/Article.pdf> accessed 26 May 2017.

Ministry of Justice, ‘Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims’ (Draft, May 2017), para 4.3(9) <http://www.justice.gov.uk/downloads/civil-justice-reforms/el-pl-protocol.pdf> accessed 26 May 2017.

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1.5 Finally, in January 2014 the MesotheliomaBill received Royal Assent and was enacted as the Mesothelioma Act 2014. Despite many attempts at amendment, the Bill completed its passage through Parliament with only technical amendment. Sections 2 and 3 are the primary provisions. Section 2 of the Act provides that a mesothelioma payment will be payable if a:

an employer has negligently or in breach of statutory duty caused or permitted a person to be exposed to asbestos,

(b) the person has been diagnosed withdiffuse mesothelioma on or after 25July 2012,

(c) the person has not brought anaction against the employer or anyother insurer for damages in respect ofthe disease;

(d) the person is unable to bring aclaim (because the employer andinsurer cannot be found or no longerexist or for any other reason), and

(e) the person has not receiveddamages or a specified paymentin respect of the disease and is noteligible to receive a specified payment.

Section 3 of the Act allows dependency payments. A dependency payment is payable if:

The person who died of diffuse mesothelioma was eligible for a payment under section 2.

No one has brought an action for damages under the fatal accident legislation or on behalf of the estate of the person with the disease, against the relevant employer or any relevant insurer in respect of the disease;

No one is able to bring a claim (because the employer and insurer cannot be found or no longer exist or for any other reason), and

No one has received damages or a specified payment in respect of the disease or is eligible to receive a specified payment

The details of the Diffuse Mesothelioma Payment Scheme itself were enacted in secondary legislation in April 2014 in the Diffuse Mesothelioma Payment Scheme Regulations 2014.

For more information, see BC Legal, ‘The Mesothelioma Act 2014 – A Potted History’ (February 2014) BC Disease News Edition 35 LINK HERE accessed 26 May 2017.

Also, BC Legal, ‘The Diffuse Mesothelioma Payment Scheme – An Overview’ (May 2014) BC Disease News Edition 45 LINK HERE accessed 26 May 2017.

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The Judicial College Guidelines

2.1 The Guidelines for the Assessment of General Damages in PersonalInjury Cases, published by the Judicial College (previously known as the Judicial Studies Board (JSB) Guidelines), provide guideline bracket figures for awards made for pain, suffering and loss of amenity.

Mesothelioma has its own guideline bracket, owing to its unique features. The current (13th) edition of the Guidelines provide the following:

2.2

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. There are a large number of factors which will affect the level of award within the bracket. These include but are not limited to duration of pain and suffering, extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, whether the mesothelioma is peritoneal or pleural, the extent to which the tumour has spread to encase the lungs and where other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health, extent of life loss and concern for spouse and/or children following death.

£53,200 to £95,700With 10% uplift £58,520 to £105,270

Chapter 6(C)(a)

2.3 The guideline figures change with each edition. The change accountsfor inflation, new decisions and any changes in policy. The following table shows how the mesothelioma figures have changed with each edition:

JC Edition Mesothelioma Bracket

Mesothelioma Bracket with 10% Uplift

7th (2004) £45,000-£70,000 n/a8TH (2006) £47,850-£74,300 n/a9TH (2008) £52,500-£81,500 n/a10TH (2010) £35,000-£83,750 n/a11TH (2012) £50,000-£90,000 n/a

12th (2013) £51,500-£92,500 £56,650-£101,75013th (2015) £53,200-£95,700 £58,520 o £105,270

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Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (13th edn, OUP 2015).

7

One part of the Jackson reforms was a 10% increase in general damages. The 10% uplift was implemented by the decision in Simmons v Castle [2012] EWCA Civ 1039. The Court of Appeal subsequently revisited its decision in Simmons v Castle [2012] EWCA Civ 1288, confirming that the 10% uplift only applies in cases where a success fee is no longer recoverable.

The following analysis of the guidelines will use the mesothelioma figures with and without the 10% uplift.

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2.4 The following graph shows the changes in the upper and lowerbrackets for mesothelioma awards from each edition to the next:

£120,000

£100,000

£80,000

£60,000

£40,000

£20,000

£0

The graph shows that both the upper and the lower brackets have increased in value since the 7th edition. The upper bracket has risen year on year every year. The lower bracket, however, fell sharply in the 10th edition. It has since risen again to £58,520 in the 13th edition. The sharper increase between the 11th and 12th edition reflects the 10% increase in general damages.

The sharp fall in the lower bracket in the 10th edition followed the decision in Gallagher v Vinters Armstrong and SHSEGL Realisations Ltd [2007]. In that case (decided in accordance with the 8th edition) the time from onset to death was three months. The Judge held that it was not a typical case, as symptoms would normally exist for one to three years before death, and therefore the Guidelines were not of assistance. The Judge awarded £20,000. The 9th edition of the guidelines subsequently continued the upward trend in the lower bracket but reflected Gallagher by noting: ‘In cases of unusually short periods of pain and suffering lasting 3 months or so, an award in the region of £25,000 may be appropriate’. The 10th edition, however, reflected cases like Gallagher by reducing the lower bracket to £35,000 and removing the reference to unusually short periods of pain and suffering. The average award for this duration of suffering, however, is £53,000: see tariff table 2.

2.6

7th (2004) 8th (2006) 9th (2008) 10th (2010) 11th(2012) 12th(2013) 13th(2015)

Judicial College Guidelines Edition Upper Bracket Lower Bracket

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2.5

See [19]-[46] in Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB)<http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2012/145.html&query =gallagher+and+vinters&meth od=boolean> accessed 26 May 2017.

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2.7 The 11th edition of the Guidelinesreturned the bracket to a higher level following the decision in Ball v Secretary of State for Energy and Climate Change [2012]. Here the duration between onset and anticipated death was approximately 1 year. The claimant was aged 92 with only 2.9 years life expectancy but for the mesothelioma. An award of £50,000 was made. Swift J expressed concern at the emphasis placed on duration of symptoms. Assessment of damages was more complex and required consideration of other factors such as:

• extent and effects of anyinvasive investigations;

• level of symptoms; and• domestic circumstances,

level of activity and previousstate of health. Contrast ayoung fit man and his lossof amenity with the knowledgeof significantly prematuredeath with an older claimantwho may have far lessrestriction of activities as aresult of the illness.

Concern was expressed that the lower bracket had been lowered to £35,000 when that was well below most previous awards and had little basis. Accordingly, in the 11th edition the figure returned to nearly the same level as in the 9th edition.

The following table shows the percentage change in the upper and lower brackets for each successive edition of the Guidelines and the overall average percentage change. It shows that the upper bracket has risen at a faster rate than the lower bracket:

2.8

See n 8. That the Guidelines changed following Ball is confirmed in the introduction to the 11th edition: See (n 7) xi.

This is made clear in the forward to the 11th edition and was made clear in the forward of the first edition: (n 7) vii and ix respectively.

[2007] EWHC 2267 (QB) <http://www.lawtel. com/UK/FullText/AC0115064QBD.pdf> accessed 26 May 2017.

2.9 The Guidelines are only guidance,they are not law. They can be departed from if the circumstances

Judicial College Guidelines Edition Lower Bracket % Change Upper Bracket % Change7th (2004) 45,000 70,0008TH (2006) 6.33% 6.14%9TH (2008) 9.72% 9.69%10TH (2010) -33.33% 2.76%11TH (2012) 42.86% 7.46%

12th (2013) 13.30% 13.06%

13th (2015) 3.3% 3.40%Average % change 7.03% 7.82%

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10of the case so require. In Cameron v 11

Vinters Defence Systems Ltd, Holland J noted, at [7], that the starting point is the Guidelines, but that they can be departed from with justification. The circumstances of the case must, therefore, be regarded as the ultimate determinative factor in any award of damages. This approach has been followed in several subsequent decisions, most recently by the High Court in Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB).

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The 13th edition of the Guidelines was published on 17 September 2015. There have been no policy changes that needed to be reflected in the Guidelines. Accordingly they represent inflationary uplift alone. In addition, there remains a column with the figures showing the 10% uplift.

Since mesothelioma claims have been exempted from the abolition of the recoverability of success fees, Simmons confirms that the 10% uplift does not apply. However, it has been suggested previously that this may not always be the case and therefore there is a need to show estimated awards by reference to the JC Guidelines with and without the 10% uplift.

Accordingly, in Tariff Tables 1 we present two tables: the first shows estimated awards based on the JC Guidelines without the 10% uplift. The estimated awards are compared with actual awards (updated for inflation). The second table shows estimated awards based on the JC Guidelines with the 10% uplift. The estimated awards are compared with the same actual awards (updated for inflation) but these have also been artificially inflated by 10% so that accurate comparisons can be made.

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Actual Awards

3.1 Naturally, given the inability to definitively quantify injuries the awards made incases vary. Awards are based on all the circumstances of the case and will take the Judicial College Guidelines as their starting point.

The following tables give actual awards for mesothelioma cases. Where available, the tables detail the amount awarded, the age of the claimant, the period between the onset of the disease and death or anticipated death, the reduction in life expectancy, and details of the effects of the injury.

The Tariff Table 1 below is designed to be a ‘ready reckoner’ showing both estimated and actual common law awards according to age and by the period between onset of the disease and death or anticipated date of death (duration of symptoms). Please read the footnotes to the table which explain how awards have been estimated. The table is designed to give a broad brush indication of possible awards and is not intended to substitute a detailed review and consideration of actual awards to properly value any PSLA award.

The Tariff Table 2 below shows actual awards by duration of symptoms.

The detailed tables at appendix 1 lists actual awards by size.

The detailed table at appendix 2 lists actual awards by duration of symptoms.

The detailed table at appendix 3 lists awards by the age of the claimant.

All of the tables have updated figures to reflect inflation in May 2017 (using the latest available RPI figures (March 2017)).

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3.7

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TARIFF TABLE 1: READY RECKONER-ACTUAL AND ESTIMATED AWARDS BY AGE / DURATION OF SYMPTOMS

BC LEGALB R I N G I N G C L A R I T Y

BC

0-3 4-6 7-9 10-12 13-15 16-18 19-21 22-24 25-27 28-30 31-33 34-36 37+

£72,048 £19,005.49 £79,674.91

£74,013 £75,978 £77,942 £92,816.35

£79,907 £82,151.37

£81,871 £90,117.12

£83,863 £85,801 £71,313.29

£87,765 £89,730 £91,694 £93,659 £95,700 £78,420.01

£69,701 £71,863 £74,023 £76,184 £73,524.09 £78,973.61

£78,345 £79,232.50 £95,516.68

£80,512 £70,683.47 £83,607.68

£82,673 £84,834 £86,995 £89,156 £91,322 £93,483 £95,700 £103,688.71

£67,231 £65,933.08 £80,805.54

£69,712 £80,749.63 £81,039.35

£72,069 £74,427 £76,789 £79,147 £81,510 £83,867 £84,440.42

£86,224 £88,587 £90,945 £93,302 £95,700 £104,891.85

£65,002 £71,865.60

£67,551 £70,105 £72,658 £75,207 £80,048.46

£77,761 £67,710.13 £72,470.55 £91,073.74

£80,315 £82,864 £85,418 £87,972 £90,521 £93,075 £95,700

£62,649 £55,614.96

£64,614 £66,578 £81,192.72 £83,583.30

£68,543 £64,255.04 £101,240.60

£70,508 £72,472 £74,327.43 £87,611.98

£74,437 £76,401 £81,665.45

£78,366 £80,331 £82,295 £84,260 £86,245 £91,014.87

£60,302 £38,376.64

£62,463 £45,119.67

£64,625 £81,378.43

£66,785 £68,946 £71,113 £78,973.61

£73,274 £79,410.2

£75,435 £77,596 £91,911.26

£79,757 £81,975 £84,084 £86,245

£57,950 £26,350.29

£59,914 £61,879 £63,844 £59,221.06

£65,808 £71,904.16

£67,773 £91,288.14

£69,737 £71,702 £73,667 £75,631 £77,596 £79,560 £81,546

£55,603 £57,764 £59,875 £62,737.33

£62,086 £66,247 £66,413 £68,574 £70,735 £72,897 £75,057 £77,218 £79,295 £81,546 £90,434.46

£53,200 £55,608 £57,970 £60,328 £62,691 £56,127.55

£65,048 £67,406 £69,768 £72,126 £74,484 £76,846 £79,204 £81,546

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Notes:

1. Figures in red bold are the lower and upper bracket for the 13th edition of the JC Guidelines without the 10% uplift (£53,200-£95,700).

2. It is assumed that awards at the bottom end of the JC Bracket will involve cases where (i) the claimant/deceased was elderly, (ii) therewas limited life expectancy irrespective of the mesothelioma, (iii) duration of symptoms before anticipated death/death is very short – sayup to 3 months. The lower bracket figure of £53,200 is therefore placed in the lower left hand corner of the table [claimants aged90+/duration of symptoms 0-3 months].

3. Conversely, the upper bracket figure of £95,700 occupies the top right hand side of the table [claimants aged up to 50 withsymptoms of 3 years or more].

4. It is assumed that cases involving very long symptoms of 3 years+ will always attract awards towards the top end of the bracketirrespective of age. The far right hand column shows a sliding scale of awards from £95,700 down to £81,546.

5. Similarly, a sliding scale of awards between £72,048-£53,200 is applied in the far left hand column for cases involving very shortduration of symptoms (0-3 months) for different ages.

6. Estimated awards at different durations of symptoms and ages are based on interpolation of the sliding scale awards between the farleft and far right columns.

7. All estimated figures are shown in bold.

8. We have compared the estimated figures with actual awards (where these exist) based again on age and duration of symptoms. Notall actual awards are included in the table as some cases lack the requisite information to be included. However, all actual awards areshown in Tables 3, 4 and 5.

9. Old authorities tended to award less than more current awards. They are therefore often anomalously low.

10. Some actual awards appear entirely anomalous, without explanation. There is sometimes little consistency between awards.

0-3 4-6 7-9 10-12 13-15 16-18 19-21 22-24 25-27 28-30 31-33 34-36 37+

£79,256 £20,906.04 £87,642.40

£81,417 £83,578 £85,977 £102097.99

£87,900 £90,366.51

£90,061 £99,128.83

£92,222 £94,383 £78,444.62

£96,544 £98,705 £100,866 £103,027 £105,270 £86,262.01

£76,671 £79,049 £81,427 £83,805 £80876.50 £86,870.97

£86,183 £87,155.75 £105,068.35

£88,562 £77,751.82 £91,968.45

£90,940 £93,318 £95,696 £98,074 £100,453 £102,831 £105,270 £114,057.58

£74,086 £72,526.39 £88,886.09

£76,681 £88,824.59 £89,143.29

£79,276 £81,872 £84,467 £87,062 £89,658 £92,253 £92,884.46

£94,848 £97,444 £100,039 £102,634 £105,270 £115,381.04

£71,501 £79,052.16

£74,308 £77,115 £79,923 £82,730 £88,053.31

£85,537 £74,481.14 £79,717.61 £100,181.11

£88,344 £91,152 £93,959 £96,766 £99,574 £102,381 £105,270

£68,916 £61,176.46

£71,077 £73,238 £89,311.99 £91,941.63

£75,399 £70,680.54 £111,364.66

£77,560 £79,721 £81,760.17 £96,373.09

£81,882 £84,043 £89,832.00

£86,204 £88,365 £90,526 £92,687 £94,869 100,116.36

£66,331 £42,214.30

£68,709 £49,631.64

£71,087 £89,516.27

£73,465 £75,843 £78,222 £86,870.97

£80,600 £87,351.22

£82,978 £85,356 £101,102.39

£87,734 £90,113 £92,491 £94,869

£63,746 £28,985.32

£65,907 £68,068 £70,229 £65,143.17

£72,390 £79,094.58

£74,551 £100,416.96

£76,712 £78,873 £81,034 £83,195 £85,356 £87,517 £89,699

£61,161 £63,539 £65,917 £69,011.06

£68,295 £70,673 £73,052 £75,430 £77,808 £80,186 £82,564 £84,943 £87,321 £89,699 £99,477.46

£58,520 £61,171 £63,766 £66,362 £68,957 £61,740.31

£71,552 £74,148 £76,743 £79,338 £81,934 £84,529 £87,124 £89,699

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Notes:

1. Figures in red bold are the lower and upper bracket for the 13th edition of the JC Guidelines with the 10% uplift (£58,520-£105,270).

2. It is assumed that awards at the bottom end of the JC Bracket will involve cases where (i) the claimant/deceased was elderly, (ii) there waslimited life expectancy irrespective of the mesothelioma, (iii) duration of symptoms before anticipated death/death is very short – say up to 3months. The lower bracket figure of £58,250 is therefore placed in the lower left hand corner of the table [claimants aged 90+/duration ofsymptoms 0-3 months].

3. Conversely, the upper bracket figure of £105,270 occupies the top right hand side of the table [claimants aged up to 50 with symptoms of3 years or more].

4. It is assumed that cases involving very long symptoms of 3 years+ will always attract awards towards the top end of the bracket irrespectiveof age. The far right hand column shows a sliding scale of awards from £105,270 down to £89,699.

5. Similarly, a sliding scale of awards between £79,256-£58,520 is applied in the far left hand column for cases involving very short duration ofsymptoms (0-3 months) for different ages.

6. Estimated awards at different durations of symptoms and ages are based on interpolation of the sliding scale awards between the far leftand far right columns.

7. All estimated figures are shown in bold.

8. We have compared the estimated figures with actual awards (where these exist) (artificially inflated by 10%) based again on age andduration of symptoms. Not all actual awards are included in the table as some cases lack the requisite information to be included. However,all actual awards are shown in Tables 3, 4 and 5.

9. Old authorities tended to award less than more current awards. They are therefore often anomalously low.

10. Some actual awards appear entirely anomalous, without explanation. There is sometimes little consistency between award

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TARIFF TABLE 2: AWARDS BY DURATION OF SYMPTOMS

BC LEGALB R I N G I N G C L A R I T Y

BC

0-3 4-6 7-9 10-12 13-15 16-18 19-21 22-24 25-27 28-30 31-33 34-36 37+

PSLA Award (£)

19,005.49 26,350.29 38,376.64 55,614.96 65,933.08 71,865.60 79,674.91 80,805.54

45,119.67 80,749.63 81,039.35 91,509.71

62,737.33 81,192.72 81,378.43 83,583.30

59,221.06 64,255.04 73,524.09 79,042.74 92,816.35 101,240.60

56,127.55 71,904.16 79,232.50 80,048.46 82,151.37 95,516.68

67,710.13 70,683.47 72,470.55 74,327.43 78,973.61 83,607.68 86,723.34 87,611.98 90,117.12 91,073.74 91,288.14

79,410.20 85,638.45

71,313.29 81,665.45 84,440.42

91,911.26 78,420.01 90,434.46 91,014.87 92,826.50 103,688.71 104,891.85

Average (£)

54,703.31 74,604.59 77,222.95 78,349.98 77,496.79 81,326.11 82524.33 79139.72 91,911.26 93,546.06

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TABLES 3: ACTUAL AWARDS BY SIZE

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TABLE 4: PSLA AWARDS BY DURATION OF SYMPTOMS

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TABLE 5:PSLA AWARDS BY AGE

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BC LEGALB R I N G I N G C L A R I T Y

BC

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DisclaimerThis newsletter does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to provide an update on issues that may be of interest to those handling occupational disease claims. Specialist legal advice should always be sought in any particular case.

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