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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hamilton v NG Bailey Ltd [2020] EWHC 2910 (QB) (30 October 2020) URL: http://www.bailii.org/ew/cases/EWHC/QB/2020/2910.html Cite as: [2020] EWHC 2910 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
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KENNETH HAMILTON |
Claimant |
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- and – |
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NG BAILEY LIMITED |
Defendant |
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Richard Seabrook (instructed by Weightmans LLP) for the Defendant
Hearing date: 8 October 2020
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Crown Copyright ©
Dan Squires QC:
Introduction
Factual background and factual findings
"[The Claimant] did not describe disabling breathlessness, but his exercise tolerance is probably not quite normal. He played badminton until thirteen years ago, after which he played mainly golf but now confines physical activity to tending his garden, of which he can manage up to an hour, having managed several hours only a few years ago. He lives in a bungalow but can climb a flight of stairs without distress."
Dr Barber concluded:
"There is … an indication of a slight reduction in exercise capability in recent years but nothing which can be specifically benchmarked. Taking account of all the available evidence, I would assess [the Claimant] as around 10% disabled from asbestosis, sufficient to cause breathlessness on prolonged or strenuous exertion, as indeed he does experience and which has been a cause of progressive reduction in his activities of daily living and recreation, though he remains well and active in general terms."
"The natural history of asbestosis is to progress slowly, and I think it likely that [the Claimant] will acquire an additional 5% respiratory disability in the course of his lifetime. That figure could rise to 10% and I would also assess an approximate 5% risk of more severe and rapidly progressive asbestosis sufficient to cause respiratory failure with life-limited effects… [The Claimant's] asbestos exposure history with mild asbestosis confers an approximately 3% probability of the future development of malignant pleural mesothelioma. This would almost certainly prove progressive and life-limiting were it to develop. I would also assess an approximate 3% risk of lung cancer, two-thirds asbestos related."
General damages
Legal framework
"£36,060-£99,330 Asbestosis and pleural thickening—where the level of disability attributable to asbestos will be in excess of 10% causing progressive symptoms of breathlessness by reducing lung function. Awards at the lower end of the bracket will be applicable where the condition is relatively static. Higher awards will be applicable where the condition has progressed or is likely to progress to cause more severe breathlessness. Awards at the top end of the bracket will be applicable where mobility and quality of life has or is likely to become significantly impaired and/or life expectancy significantly reduced. This is a wide bracket and the extent of respiratory disability will be highly significant with disabilities of 10–30% being at the lower end, 30–50% in the middle, and in excess of 50% at the higher end.
£14,140-£36,060 Asbestosis and pleural thickening—where the level of respiratory disability/lung function impairment attributable to asbestos is 1–10%. The level of award will be influenced by whether it is to be final or on a provisional basis and also the extent of anxiety."
i) Hughes v Nodit Ltd (2003)H was a 67 year old man who received a full and final PSLA award of £23,000 for an asbestos related disease which caused a 10% respiratory disability (with another 10% respiratory disability caused by unrelated matters). There was a 10% risk of the disease progressing to a respiratory disability of between 20-30%. The PSLA award H received would now be worth around £37,000.ii) Fox v Manchester CC (2006)
F was a 73 year old man who received a full and final PSLA award of £20,500 for an asbestos related disease which caused a 10% respiratory disability (with another 20% respiratory disability caused by unrelated matters). There was a 10% risk of the disease progressing to cause a material increase in disability. The PSLA award F received would now be worth around £31,000.
i) Billiard v Swan Hunter (2003)B was a 68 year old man who received a provisional PSLA award of £18,000 for an asbestos related disease which caused a 10% respiratory disability (with another 10% respiratory disability caused by unrelated matters). The prognosis was that the asbestosis would worsen over time, but would be unlikely to produce more than a mild/moderate disability. The PSLA award F received would now be worth around £29,000.ii) Pearson v BT (2008)
P was a 65 year old man who received a provisional PSLA award of £20,900 for an asbestos related disease which caused a 5% respiratory disability but which would increase by 1% per year. The PSLA award P received would now be worth around £28,000.iii) Allen v Wright Brothers (2009)
A was a 61 year old man who received a provisional PSLA award of £24,500 for an asbestos related disease which caused a 10% respiratory disability. There was a 10% risk of a further 10% deterioration in his condition. The PSLA award A received would now be worth around £34,000.iv) Prater v British Motor Holdings (2016)
P was an 80 year old man who received a received a provisional PSLA award of £30,250 for an asbestos related disease which caused a 10% respiratory disability. He had suffered asbestosis symptoms for some six and a half years by the time of trial. The prognosis was that P's respiratory disability was likely to increase by a further 5% over the following decade. The PSLA award F received would now be worth around £34,000.
Analysis in present case
i) Mr Seabrook is correct that, generally, the younger the age at which a person begins to suffer from asbestosis, the higher will be the appropriate award of damages. From the cases referred to me, most of those bringing claims were in their 60s or 70s at the date of trial (or in the case of Mr Prater aged 80). That is not surprising given the nature of the disease. The Claimant first experienced asbestosis symptoms aged 71-72, which would place him roughly in the middle of the cases to which I was referred.ii) I also note that the JC Guidelines referred to the level of award being influenced by the level of an individual's "anxiety", and that, as Mr Seabrook pointed out, there is no evidence of any particular anxiety experienced by the Claimant. As Mr Bowley pointed out, however, there was no suggestion in any of the cases to which I was referred that the claimants were suffering from any particular anxiety or that the lack of evidence of anxiety was regarded as significant.
iii) I also note that the only time the symptoms are experienced in the Claimant's case is when gardening, but as Mr Bowley noted that appears to be his primary hobby and the one in which he experiences exertion. If he suffered from breathlessness on other occasions, such as walking upstairs, it is unlikely he would be assessed as 10% disabled and therefore would not be in the lower bracket at all.
Special damages
Other matters
Conclusion