Horsley v Cascade Insulation Services Ltd & Ors

In assessing damages for asbestos-related disease, the court must compensate the claimant for the increased risk of malignancy during working life, not merely for loss caused by a shortened life expectancy. The assessment should reflect the evidence and avoid purely arithmetical aggregation of disease risks where that would produce an over-generous result.

Future earnings may be recoverable for the risk of illness preventing work before anticipated retirement, but the calculation must be confined to proven earning loss. Dividends are not included without evidence that illness would reduce company profitability. Smoking-related risks may be reflected both in causation and, separately, in contributory negligence.

The claimant sought damages for asbestosis caused by occupational exposure while working as a lagger for the first and second defendants. Judgment had previously been entered against those defendants, and proceedings against the third defendant were discontinued.

The court determined causation, contributory negligence and the quantification of final damages. The parties agreed the respective exposure contributions of the first and second defendants. The principal disputes concerned general damages, future loss of earnings, the treatment of risks of mesothelioma and lung cancer, the claimant’s retirement age and the appropriate deduction for smoking.

1. General damages. The appropriate award for the claimant’s asbestosis, assessed by reference to the evidence and the JSB guideline range, was £45,000. The risks of mesothelioma and lung cancer were relevant, but they should not be combined by simple aggregation or valued merely as a percentage of damages for the disease itself.
2. Future loss. The court rejected the submission that recovery was confined to loss arising from reduced life expectancy. The principle of full compensation required account to be taken of the increased risk of malignancy during the claimant’s working life. The appropriate method was to assess the potential loss of earning capacity before anticipated retirement and discount it to reflect the chance and timing of the illness.
3. The calculation was confined to salary from Western Thermal Ltd. Dividends were excluded because there was insufficient evidence that the claimant’s absence would reduce profitability or dividend income. The court adopted a retirement age of 65, applied a 7% reduction to the salary calculation, and required an allowance for UK tax and national insurance.
4. The claimant’s evidence concerning the Dubai company and purported audit documents was unreliable. The court therefore placed no weight on the alleged Dubai income and approached other parts of the claimant’s evidence cautiously unless corroborated.
5. Smoking-related disease justified a 15% discount in the future-loss calculation. Separately, the claimant’s contributory negligence was assessed at 20%. The fact that the defendants had to take the claimant as they found him did not prevent a deduction for his knowing continuation of smoking.
6. The chance of future care was de minimis and justified an award of £1,500. No award was made for equipment. Final calculations and any consequential submissions were left to be completed in accordance with these conclusions, after which liability would be apportioned on the agreed percentages.