Ball v Secretary of State for Energy and Climate Change

In assessing damages for pain, suffering and loss of amenity in mesothelioma claims, the duration of symptoms is relevant but is not determinative. The court must assess the claimant’s overall experience, including pain, breathlessness, invasive investigations, surgery, treatment, the type and spread of the disease, psychological distress, age, health, domestic circumstances and loss of independence. The JSB Guidelines are influential but do not prescribe the award and should not encourage mechanical classification by duration alone. A case with atypical features may justify an award outside the guideline bracket. On the facts, £50,000 was appropriate for PSLA.

The claimant brought a mesothelioma claim arising from occupational exposure to asbestos while employed by the National Coal Board and/or British Coal Corporation. Liability and all heads of damages had been agreed or determined, leaving only the assessment of damages for pain, suffering and loss of amenity.

The claimant was aged 92, had experienced approximately a year of symptoms, and had undergone hospitalisation, thoracoscopy, drainage of a pleural effusion, biopsies and pleurodesis. The central issue was the appropriate approach to the JSB Guidelines and the effect of the claimant’s age, medical history, symptom duration, treatment and loss of independence on the award.

1. Approach to the Guidelines. The JSB Guidelines are intended to assist judges and are highly influential, but they do not prescribe awards. Their emphasis on duration of symptoms must not lead to mechanical or “pigeon-holed” assessments.
2. Relevant factors. Duration is one factor only. The court should also consider the severity and control of symptoms, invasive investigations, radical surgery, chemotherapy and radiotherapy, the type and spread of mesothelioma, likely terminal symptoms, psychological distress, age, previous health, domestic circumstances, activity and loss of independence. The list is not exhaustive.
3. Application. The claimant had undergone an unpleasant invasive procedure and had suffered breathlessness, anxiety, depression, catheter problems and loss of his independent home life. His advanced age reduced the loss associated with shortened life expectancy and the abandonment of work or active hobbies, but did not materially diminish the distress and loss of amenity caused by the disease.
4. The award should lie below the lower end of the brackets in earlier editions of the Guidelines, but significantly above the £35,000 lower level in the tenth edition. Damages for PSLA were assessed at £50,000, with £335 interest. Including agreed damages for care, miscellaneous expenses and lost years, total damages were £73,890.16.

First-instance assessment of damages. No appellate history was stated in the judgment.