Last week, the Court of Session issued its decision in Harris v The Advocate General as Representing the Ministry of Defence, 2016 CSOH 49. This latest decision once again alters the landscape of how pleural plaques claims are dealt with in Scotland. The facts and impact of Harris are considered below, along with a refresher on the recent developments.

The Changing Landscape

Framework Agreement

From 2009 until last year, the quantification of pleural plaques claims in Scotland was fairly clear and consistent. In 2009, the Damages (Asbestos Related Conditions) (Scotland) Act 2009 came into force (the “Act”). The Act determined that pleural plaques constitutes an actionable harm in Scotland and, therefore, an action for damages could be raised in respect of it. 

Following the Act, Pursuers’ and Defenders’ agents entered into a Framework Agreement quantifying pleural plaques, so that cases could be dealt with quickly and consistently. The Framework Agreement valued full and final damages claims on a sliding scale, from £6,000 to £8,000, determined by the age of the Pursuer, while provisional damages were fixed at £4,000, with specified return conditions. 

WW v The Advocate General for Scotland 2015 CSOH 111

In August 2015, the Court of Session awarded WW, who had been exposed to asbestos whilst serving in the Royal Navy, £8,500 in provisional damages. Had the matter settled in accordance with the Framework Agreement, WW would have only received £4,000. 

In our Law Now article from August 2015, we foresaw that WW would increase the cost of provisional settlement to Defenders.

Harris v Ministry of Defence

Facts

Mr Harris was employed by the Ministry of Defence as a boiler maker from 1961 to 1977. During his employment, he was exposed to asbestos and, as a consequence, developed bilateral calcified pleural plaques. The Ministry of Defence admitted liability and the matter proceeded to proof on quantum. The Pursuer sought a full and final settlement and valued his claim at £15,233. 

Submissions

It was agreed between the Pursuer and the Defender that the Pursuer had a 5% risk of developing pleural mesothelioma and a 0.2% risk of developing asbestos related lung cancer. The Pursuer and the Defender agreed that if the Pursuer had already developed mesothelioma or lung cancer, the award would be £66,000. 

The Pursuer’s agent submitted that the correct method of calculating full and final damages was to:

  1. take the provisional damages figure; and
  2. add 5.2% (5% of mesothelioma risk plus 0.2% asbestos related lung cancer risk) of that which would be awarded to the individual in respect of; (i) solatium; (ii) lost years; and (iii) services, if the award was for mesothelioma or asbestos related lung cancer.

In response, the Defender argued for a lump sum approach, identifying a range of values, with the Pursuer’s case falling into a particular category based on age, level of anxiety, and extent of risk. The Defender's Counsel also indicated that the aggregate arithmetical approach suggested by the Pursuer had the potential to over-compensate. 

Court’s decision

The Court sided with the Pursuer. In response to the Defender’s criticisms about aggregate risk providing overcompensation, Lord Boyd found that, if Mr Harris developed mesothelioma, but not lung cancer, or vice versa, the 5.2% would not represent over-compensation. The Pursuer did not need to develop both mesothelioma and lung cancer for the 5.2% to be an appropriate amount, either one would be sufficient. Lord Boyd went on to say, “I see nothing wrong in assessing the risks that flow from one injury and aggregating these provided care is taken not to double count”.

Comment

Taken together, WW and Harris represent a turn away from the Framework Agreement and towards the assessment of damages on a case by case basis, in a manner that is favourable to the Pursuer. For the Defender, these cases will increase the cost of pleural plaques claims in several ways. Defenders will be more likely to have to instruct medical experts on risk. They will incur higher solicitors' fees to pay for the protracted settlement negotiations. Finally, they may have to pay more to settle cases than that specified in the current Framework Agreement.