MESOTHELIOMA PSLA AWARDS BC LEGAL B R I N G I N G C L A R I T Y. A REVIEW OF MESOTHELIOMA QUANTUM AWARDS TO MAY 2017 Fourth Edition.

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1 MESOTHELIOMA PSLA AWARDS A REVIEW OF MESOTHELIOMA QUANTUM AWARDS TO MAY 2017 Fourth Edition BC BC LEGAL B R I N G I N G C L A R I T Y Page 1

2 Introduction The Judicial College Guidelines Actual Awards & Tariff Tables 1 and 2 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: Table 5: Awards by duration of symptoms Awards by age Page 2

3 Introduction Mesothelioma 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 1 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 2 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 3 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 4 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 [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) < images/pdf/article.pdf> accessed 26 May Ministry of Justice, Pre-action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims (Draft, May 2017), para 4.3(9) < accessed 26 May Page 3

4 1.5 Finally, in January 2014 the Mesothelioma Bill received Royal Assent and was enacted as the Mesothelioma Act 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 with diffuse mesothelioma on or after 25 July 2012, (c) the person has not brought an action against the employer or any other insurer for damages in respect of the disease; (d) the person is unable to bring a claim (because the employer and insurer cannot be found or no longer exist or for any other reason), and (e) the person has not received damages or a specified payment in respect of the disease and is not eligible 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 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 Also, BC Legal, The Diffuse Mesothelioma Payment Scheme An Overview (May 2014) BC Disease News Edition 45 LINK HERE accessed 26 May Page 4

5 The Judicial College Guidelines 2.1 The Guidelines for the Assessment of General Damages in Personal Injury 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. 2.2 Mesothelioma has its own guideline bracket, owing to its unique features. The current (13th) edition of the Guidelines provide the 7 following: Chapter 6(C)(a) 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 95,700 With 10% uplift 58,520 to 105,270 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 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. 2.3 The guideline figures change with each edition. The change accounts for 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/a 8TH (2006) 47,850-74,300 n/a 9TH (2008) 52,500-81,500 n/a 10TH (2010) 35,000-83,750 n/a 11TH (2012) 50,000-90,000 n/a 12th (2013) 51,500-92,500 56, ,750 13th (2015) 53,200-95,700 58,520 o 105,270 Page 5 7 Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (13th edn, OUP 2015).

6 2.4 The following graph shows the changes in the upper and lower brackets for mesothelioma awards from each edition to the next: 120,000 Judicial College Guidelines Edition Upper Bracket Lower Bracket 100,000 80,000 60,000 40,000 20, th (2004) 8th (2006) 9th (2008) 10th (2010) 11th(2012) 12th(2013) 13th(2015) 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 8 [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. 8 See [19]-[46] in Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB)< markup.cgi?doc=/ew/cases/ EWHC/QB/2012/145.html&query =gallagher+and+vinters&meth od=boolean> accessed 26 May Page 6

7 2.7 The 11th edition of the Guidelines returned the bracket to a higher level following the decision in Ball v Secretary of State for Energy and 9 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 any invasive investigations; level of symptoms; and domestic circumstances, level of activity and previous state of health. Contrast a young fit man and his loss of amenity with the knowledge of significantly premature death with an older claimant who may have far less restriction of activities as a result of the illness. 2.9 The Guidelines are only guidance, they are not law. They can be departed from if the circumstances 10 of 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). 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. 9 See n 8. That the Guidelines changed following Ball is confirmed in the introduction to the 11th edition: See (n 7) xi. 2.8 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: 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) < com/uk/fulltext/ac qbd.pdf> accessed 26 May Page 7 Judicial College Guidelines Edition Lower Bracket % Change Upper Bracket % Change 7th (2004) 45,000 70,000 8TH (2006) 6.33% 6.14% 9TH (2008) 9.72% 9.69% 10TH (2010) % 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%

8 2.11 The 13th edition of the Guidelines was published on 17 September 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. Page 8

9 Actual Awards 3.1 Naturally, given the inability to definitively quantify injuries the awards made in cases vary. Awards are based on all the circumstances of the case and will take the Judicial College Guidelines as their starting point. 3.2 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. 3.3 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)). Page 9

10 Page 11 BC BC LEGAL B R I N G I N G C L A R I T Y TARIFF TABLE 1: READY RECKONER-ACTUAL AND ESTIMATED AWARDS BY AGE / DURATION OF SYMPTOMS

11 ,048 19, , ,013 75,978 77,942 92, ,907 82, ,871 90, ,863 85,801 71, ,765 89,730 91,694 93,659 95,700 78, ,701 71,863 74,023 76,184 73, , ,345 79, , ,512 70, , ,673 84,834 86,995 89,156 91,322 93,483 95, , ,231 65, , ,712 80, , ,069 74,427 76,789 79,147 81,510 83,867 84, ,224 88,587 90,945 93,302 95, , ,002 71, ,551 70,105 72,658 75,207 80, ,761 67, , , ,315 82,864 85,418 87,972 90,521 93,075 95,700 62,649 55, ,614 66,578 81, , ,543 64, , ,508 72,472 74, , ,437 76,401 81, ,366 80,331 82,295 84,260 86,245 91, ,302 38, ,463 45, ,625 81, ,785 68,946 71,113 78, ,274 79, ,435 77,596 91, ,757 81,975 84,084 86,245 57,950 26, ,914 61,879 63,844 59, ,808 71, ,773 91, ,737 71,702 73,667 75,631 77,596 79,560 81,546 55,603 57,764 59,875 62, ,086 66,247 66,413 68,574 70,735 72,897 75,057 77,218 79,295 81,546 90, ,200 55,608 57,970 60,328 62,691 56, ,048 67,406 69,768 72,126 74,484 76,846 79,204 81,546

12 Notes: 1. Figures in red bold are the lower and upper bracket for the 13 th 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) there was limited life expectancy irrespective of the mesothelioma, (iii) duration of symptoms before anticipated death/death is very short say up to 3 months. The lower bracket figure of 53,200 is therefore placed in the lower left hand corner of the table [claimants aged 90+/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 with symptoms 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 bracket irrespective of age. The far right hand column shows a sliding scale of awards from 95,700 down to 81, Similarly, a sliding scale of awards between 72,048-53,200 is applied in the far left hand column for cases involving very short duration 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 far left 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. 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 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. Page 12

13 ,256 20, , ,417 83,578 85, ,900 90, ,061 99, ,222 94,383 78, ,544 98, , , ,270 86, ,671 79,049 81,427 83, , ,183 87, , ,562 77, , ,940 93,318 95,696 98, , , , , ,086 72, , ,681 88, , ,276 81,872 84,467 87,062 89,658 92,253 92, ,848 97, , , , , ,501 79, ,308 77,115 79,923 82,730 88, ,537 74, , , ,344 91,152 93,959 96,766 99, , ,270 68,916 61, ,077 73,238 89, , ,399 70, , ,560 79,721 81, , ,882 84,043 89, ,204 88,365 90,526 92,687 94, , ,331 42, ,709 49, ,087 89, ,465 75,843 78,222 86, ,600 87, ,978 85, , ,734 90,113 92,491 94,869 63,746 28, ,907 68,068 70,229 65, ,390 79, , , ,712 78,873 81,034 83,195 85,356 87,517 89,699 61,161 63,539 65,917 69, ,295 70,673 73,052 75,430 77,808 80,186 82,564 84,943 87,321 89,699 99, ,520 61,171 63,766 66,362 68,957 61, ,552 74,148 76,743 79,338 81,934 84,529 87,124 89,699

14 Notes: 1. Figures in red bold are the lower and upper bracket for the 13 th edition of the JC Guidelines with the 10% uplift ( 58, ,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 was limited life expectancy irrespective of the mesothelioma, (iii) duration of symptoms before anticipated death/death is very short say up to 3 months. The lower bracket figure of 58,250 is therefore placed in the lower left hand corner of the table [claimants aged 90+/duration of symptoms 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 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 bracket irrespective of age. The far right hand column shows a sliding scale of awards from 105,270 down to 89, 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 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 far left 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) (artificially inflated by 10%) based again on age and duration 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 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 Page 14

15 Page 12 BC BC LEGAL B R I N G I N G C L A R I T Y TARIFF TABLE 2: AWARDS BY DURATION OF SYMPTOMS

16 PSLA Award ( ) 19, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , Average ( ) 54, , , , , , , ,546.06

17 Page 13 BC BC LEGAL B R I N G I N G C L A R I T Y TABLES 3: ACTUAL AWARDS BY SIZE

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63 Page 15 BC BC LEGAL B R I N G I N G C L A R I T Y TABLE 5: PSLA AWARDS BY AGE

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81 Page 16 BC BC LEGAL B R I N G I N G C L A R I T Y Disclaimer This 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. BC Legal Ltd Partners: B. Cetnik, C. Owen Registered Office: 1 Nelson Mews, Southend-on-Sea, SS1 1AL BC Legal is a trading name of BC Legal Limited which is registered in England and Wales under company number We are Authorised and Regulated by the Solicitors Regulations Authority (SRA No )