Pleural Plaques & Future Risk

Lord Boyd’s Opinion has been issued in Roger Harris v The Advocate General [2016] CSOH 49

Mr Harris was employed as boiler maker with the Ministry of Defence from 1961 to 1977. During his employment he was exposed to asbestos. He developed pleural plaques and raised an action against the Advocate General representing his former employers, The Ministry of Defence.

Liability was admitted and a proof proceeded on quantum with the evidence being agreed by way of a Joint Minute between the parties.

Rather than seeking provisional damages for his pleural plaques, Mr Harris sought a full and final award for damages to include consideration of the future risk he faced in developing another asbestos related condition.

The evidence showed that Mr Harris had a 5% increased risk of developing pleural mesothelioma and a 0.2% increased risk of developing asbestos related lung cancer. In addition it was agreed that should he develop either condition it was unlikely he would survive for more than ten months from the date such a condition was diagnosed.

Both parties were in agreement that the full value of solatium (personal injury) if Mr Harris were to develop either mesothelioma or lung cancer was £66,000. Parties differed however on the approach to be taken in assessing an appropriate award to compensate for the future risk of developing either condition.

On behalf of Mr Harris it was submitted that the approach considered in the English case of Rothwell v Chemical and Insulating Co Ltd [2006] ICR 1458 ought to be followed. The approach was to consider a full value figure for solatium (personal injury) in developing a future asbestos related condition and then to apply a percentage risk.

It was accordingly submitted an award for the future risk of developing another asbestos related condition should be calculated on the basis of 5.2% (the percentage risk) of the agreed full value figure of £66,000.

For the Defenders it was submitted that a 5% risk of developing another condition was a slim possibility and ought to be reflected in any award. The approach in Rothwell should not be followed because adopting an arithmetical approach could lead to overcompensation. It was submitted the correct assessment for future risk was to find a range of values and thereafter select an appropriate figure in consideration of the Pursuer’s age, the level of anxiety the Pursuer had about developing another condition, and the extent of any future risk of deterioration.

In his decision Lord Boyd found no difficulty with the approach adopted by Senior Counsel for Mr Harris. He held the appropriate approach to future risk was to take an approximate full value award and apply a percentage risk. His Lordship rejected the criticisms of this approach put forward on behalf of the Defenders. The appropriate award for future risk in Mr Harris’ claim was therefore £3,432 (i.e. 5.2% of £66,000).

This case is a useful decision on the approach to be taken to valuing future risk.

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