Hindson v Pipe House Wharf (Swansea) Ltd.

Damages for asbestos-related pleural plaques should be assessed globally, taking account of the plaques, anxiety and the risks of future malignant and non-malignant disease. A strictly arithmetical aggregation of separate risks is inappropriate, and an appropriate discount must reflect that compensation is awarded in advance for uncertain future harm. Future financial loss may be awarded where illness caused by the defendant’s tort creates a risk of loss, even though the claimant also faces an unrelated medical risk. The unrelated risk should be taken into account when assessing the amount, rather than treated as defeating the claim.

The claimant had been negligently exposed to asbestos during his employment by the defendant. He developed pleural plaques but no asbestos-related disability. He also had coronary disease, continued to smoke, and faced an uncertain reduction in life expectancy and working capacity.

Holland J awarded £7,000 for general damages and made no award for financial loss. The claimant appealed successfully. The Court of Appeal remitted the case because it could not assess the appropriate damages, particularly in light of the claimant’s coronary event. The central issues were the valuation of general damages for plaques and future disease risks, and the assessment of future financial loss in the presence of an unrelated coronary risk.

1. General damages. The appropriate award for pleural plaques and associated anxiety alone would have been about £5,000, applying the usual bracket identified by Smith LJ in Rothwell v Chemical & Insulating Co Ltd & Ors [2006] EWCA Civ 27. The court also had to compensate for the risks of diffuse pleural thickening, asbestosis, mesothelioma and lung cancer.
2. The court rejected a strictly arithmetical aggregation of the separate risks. There was only a remote possibility that all the conditions would develop, future-risk compensation required a discount, and the court should ordinarily award a global sum rather than assess and add separate injuries. General damages were therefore assessed at £15,500.
3. The claimant’s coronary disease and smoking did not justify a further reduction. The asbestos-related risk assessment already took account of reduced life expectancy, and the existing coronary disease caused no symptoms affecting the relevant assessment.
4. Future financial loss. Damages may be awarded for a risk of future financial loss. The fact that an independent coronary condition might also prevent future work did not defeat recovery for the risk caused by asbestos-related illness. That independent risk had to be taken into account in valuing the award.
5. An arithmetical calculation was impossible because of uncertainty about the age to which the claimant would work, future earnings and the risk of coronary incapacity. The court assessed the risk by considering the claimant’s motivation, likely earnings absent asbestos-related illness, the possibility of work beyond 65, the prospects of continuing his business and the competing coronary risk. Future financial loss was assessed at £8,500, with £2,000 for nursing services and equipment. The total award was £26,000, plus interest on general damages.

• High Court (Queen’s Bench Division): Holland J awarded £7,000 for general damages and made no award for financial loss.
• Court of Appeal: The claimant’s appeal was upheld. The assessment of damages was remitted for a further hearing.
• High Court (Queen’s Bench Division): The remitted damages hearing resulted in an award of £26,000, plus interest on general damages.