The claimant in the Hindson case may possibly be the last symptom-free victim to receive damages for pleural plaques.
For more than a year, claims about asbestos pleural plaques have remained in suspended animation while claimants and defendants alike wait for the House of Lords to affirm or overturn the Court of Appeal’s decision in Rothwell v Chemical & Insulating Co Ltd (2006) EWCA C:U 27.
The House of Lords’ decision is not expected until October 2007 and many pleural plaque cases are currently the subject of ‘standstill’ agreements under which, for limitation purposes, any unexpired period as at the date of the agreement will cease to run against the claimant until 28 days after the Lords’ decision is published. As dust accumulates on pleural plaque files, it has been easy for practitioners to overlook the case of Hindson v Pipehouse Wharf (Swansea) Ltd (2007) LTL 2/3/2007. Hindson was one of the many cases considered by the Court of Appeal at the same time as Rothwell. But Hindson was the only case where liability had been admitted by the defendant, so that the appeal was limited to the question of quantum and was remitted to the High Court, where Mr Justice Wyn Williams assessed the damages in accordance with the principles expounded by the Court of Appeal.
These principles will be relevant to the Rothwell group of cases in the event that the House of Lords overturns the Court of Appeal’s decision. (But should the Lords affirm the decision, Mr Hindson could turn out to be the last symptom-free victim of pleural plaques to receive compensation.)
The Rothwell case
Ten claims – where pleural plaques had not given rise to symptoms – were tried together by Mr Justice Holland.
The claimants argued that, even where the person concerned was symptom-free, pleural plaques still constituted personal injury and should be considered in conjunction with concomitant factors, including the risk of further and more significant injury.
The defendants’ response was that pleural plaques could not be regarded as a disease and, in any event, could not give rise to physical impairment or have any impact on bodily function. The defendants went on to argue that anxiety engendered by the risk of further injury did not give rise to compensation and did not contribute to damage so as to found a claim.
Mr Justice Holland ruled that significant permanent physical penetration of lung tissue raised a potential for damage but no more. Nevertheless, he considered himself bound by Cartledge v Joplin (1963) AC 758 and went on to find that anxiety engendered by physiological damage did give rise to a cause of action. He then set a tariff for damages which was significantly lower than levels customarily applied in some county courts.
By a majority decision, the Court of Appeal reversed the decision of Mr Justice Holland on the basis that the development of symptom-free pleural plaques was insufficiently significant to constitute damage that could give rise to a claim for negligence. Further, no claim could be founded on the chance of contracting a future disease where this was not consequent on some physical injury. The law did not recognise a duty to take care not to cause anxiety. A claimant could not recover damages for psychiatric injury caused by anxiety about the risk of contracting a disease where a person of reasonable fortitude would not react in this way.
The Hindson decision
Mr Hindson was symptom-free but radiological tests revealed that he had pleural plaques. His claim differed from the other appeals because the defendant employers chose not to dispute their liability and so the only issue was that of quantum. At first instance, Mr Justice Holland had awarded £7,000 general damages for pain, suffering and loss of amenity. He declined to award the claimant anything to cover financial loss.
On appeal, the Court of Appeal (Lord Justice Smith) expounded the principles upon which damages should be awarded and remitted the claim to the High Court where quantum was reconsidered by Mr Justice Wyn Williams. In his judgment of 21 February 2007, the judge said that, while pleural plaques, of themselves, do not cause disability, anyone with these plaques who had been exposed to asbestos was likely to be anxious about the future.
The award in Hindson
Before evaluating the claim for pain, suffering and loss of amenity on a full and final basis, the judge had to consider the claimant’s life expectancy. There were several matters the judge had to take into account: the claimant suffered what was termed a ‘coronary event’ in March 2003; he had been a cigarette smoker throughout his adult life; and he continued to smoke 20 cigarettes a day. The judge reached the conclusion that the claimant would survive until at least the age of 70.
In awarding general damages, Mr Justice Wyn Williams indicated that, had he been assessing damages for the pleural plaques and anxiety on a provisional damages basis, he would have followed the suggestion of Lord Justice Smith in the Court of Appeal and awarded the claimant £5,000. But, in awarding damages on a full and final basis, he had to factor in the risks of further injury identified in the medical evidence. On a strictly arithmetical approach, those risks would have been worth around £12,000 but the judge considered this to be too high because:
- it was very unlikely that the claimant would contract all the conditions identified in the medical evidence;
- it was necessary to discount for the accelerated receipt of the sum awarded; and
- the court normally sets its face against compensating for different injuries but instead adopts a global approach.
In the light of this, total general damages were awarded in the sum of £15,500. As to future financial loss, the claimant was 59 years of age and “highly motivated in terms of his work”. He worked as an insulating engineer in a supervisory capacity at a power station and was also a partner in a business selling electrical equipment. His net annual income at the date of trial was between £40,000 and £50,000 and his schedule of loss was predicated on the basis that he would work until he was 70. His net annual income after the age of 65 was projected to be £34,000. The judge found that the claimant might (health permitting) work beyond the age of 65, but that it was unlikely that he would work as hard.
Refusing to adopt an arithmetical approach because of the various imponderables, the judge assessed the claimant’s damages for the risk of future financial loss at £8,500 which, together with £2,000 for nursing care, produced a total award of £26,000.
If the House of Lords affirms the Court of Appeal’s decision in Rothwell, then Mr Hindson may well be the last symptomfree person to be compensated for pleural plaques in the UK.
But there is scope for the House of Lords to find:
- that pleural plaques, of themselves, are capable of constituting a physical injury which affords the victim a cause of action; and/or
- that anxiety engendered by the risk of further injury constitutes damage which is sufficient to found a claim.
Either of these findings would mean that a claimant will still have to elect whether to seek damages in the bracket of conventional or provisional damages. Older claimants – where the risk of further injury is minimal – are likely to opt for damages on a conventional basis. Younger claimants – or cases where the risk of further injury is significant – are likely to seek provisional damages. In her dissenting judgment in the Court of Appeal, Lord Justice Smith considered the damages bracket (suggested by Mr Justice Holland) to be too low and she went on to expound how damages in these cases should be quantified.
Although Mr Justice Holland had sought to curtail the escalating level of damages awarded in the county courts, clearly Lord Justice Smith had other ideas. Unless the majority decision of the Court of Appeal is upheld, the quantification in cases involving pleural plaques will require rather more science and the value of these claims will be somewhat greater.