Claimant with mesothelioma who discontinued chemotherapy awarded over £15,000 for photodynamic therapy and drops - Najib v John Laing plc 19.04.11

During his employment by the Defendant as a joiner between 1974 and 1980 the Claimant was negligently exposed to asbestos, as a result of which he contracted mesothelioma. The hearing in the High Court addressed quantum, including a claim of £15,286 for alternative treatment and medication. The Claimant started chemotherapy in May 2010 but this was discontinued in June 2010 as he was not tolerating it. The Claimant’s son researched alternative treatment on the internet and, as a result, the Claimant and his son had a consultation with a Dr Kenyon who proposed photodynamic therapy and drops. Dr Kenyon claimed that drops would attach themselves to the cancerous cells, a high dose of light would be shone onto the body, and this would burst the cancerous cells, thereby reducing the tumour. He told them the treatment had proved successful in other countries and had prolonged patients’ lives. However, at the hearing it was accepted that the treatment had not in fact achieved anything for the Claimant in terms of reduction of the tumour or lengthening of life expectancy, although the Claimant’s son said that for a period it had eased the Claimant’s cough.

Held
In awarding the full amount claimed for alternative treatment, Mrs Justice Davies stated “Dr Kenyon presented with appropriate medical qualifications. When the claimant’s oncologist and general practitioner learnt of the proposed treatment, whatever their own reservations, they did not say ‘Do not undertake this treatment’. The claimant, faced with a harsh, painful illness and a short life expectancy, was offered the chance of a longer life. He took it. I am unable to find that in these particular circumstances, the actions of the claimant were unreasonable. The actual cost of the treatment is high, but in the context of an extended life expectancy, it is not. I allow this claim but make it clear that in so doing, nothing I have found should be construed as an endorsement of the treatment provided…” The total award amounted to just over £175,000, including general damages of £80,000.

Comment
Defendants and insurers should be aware that it is likely that a court will sympathise with a claimant who, faced with a limited life expectancy, is keen to explore any potential treatment options offered to him. In this case, the Court was influenced by the fact that Dr Kenyon was medically qualified and that the Claimant’s own doctors did not advise against the treatment. Each case will be considered on its own facts and this decision should not be taken as establishing that a claimant will always be entitled to recover the costs of alternative treatment. It is likely that a court will consider whether the treatment was reasonable and proportionate, and whether an individual can show that he has been helped by it, either physically or psychologically.