Hamilton v NG Bailey Ltd

In assessing provisional damages for asbestos-related injury, the court may use an arithmetic approach which starts with a transparent full-and-final valuation and allows for the risks of specified future conditions. The resulting award must reflect that the claimant retains a right to return to court if those conditions develop. The Judicial College Guidelines are guidelines rather than fixed rules. The relevant bracket is determined principally by the claimant’s current respiratory impairment. A likely future deterioration may affect the claimant’s position within that bracket, but does not itself move a claimant into a bracket reserved for a higher current impairment.

The defendant accepted liability for the claimant’s mild asbestosis following occupational asbestos exposure. The hearing concerned assessment of provisional damages for pain, suffering and loss of amenity, together with special damages for travel to medical appointments. The claimant sought approximately £36,500; the defendant contended for approximately £25,000.

The central issues were the appropriate Judicial College Guidelines bracket, the effect of the provisional nature of the award and the claimant’s future risks of mesothelioma, lung cancer and progressive asbestosis, and the proper amount of travel expenses.

1. Provisional damages. An award of provisional damages is lower than an equivalent full-and-final award because the claimant retains the possibility of returning to court if specified more serious asbestos-related conditions develop. An arithmetic approach may be used, provided the starting figure and deductions are explained transparently. It is not invariably necessary to begin with a full-and-final award; the exercise may be approached in the opposite direction where appropriate (paras [22]-[26]).
2. Guideline brackets. The Judicial College Guidelines should assist the assessment but are not statutory rules or tramlines. The lower asbestosis bracket applies to current respiratory impairment of 1–10%; the higher bracket applies where current impairment exceeds 10%. The claimant’s current impairment was assessed at 10%, so his claim fell within the lower bracket. The likely further 5% deterioration was relevant to the position within that bracket, but did not transfer the claim to the higher bracket (paras [27]-[35], [40]-[46]).
3. In fixing the amount within the bracket, relevant considerations included age, duration and effect of symptoms, impact on activities, anxiety, current impairment and prognosis. The court placed the claim towards the upper end of the lower bracket. Starting from £35,000 as an indicative full-and-final figure, an approximate £5,000 reduction was appropriate for the provisional nature of the award and the specified future risks. Having regard also to comparable awards and the uncertainty in the Guidelines, the appropriate provisional award for general damages was £32,000 (paras [45]-[50]).
4. Special damages were assessed at £100 for past and prospective travel to medical appointments. The agreed return conditions, credit for the interim payment and benefits, and interest were left to the order to be drawn. The claimant was therefore awarded £32,000 general damages and £100 special damages on a provisional basis (paras [51]-[55]).

Liability had been conceded by judgment entered on 1 May 2020. This judgment determined the subsequent assessment of provisional damages.