Peter Frank Brown v G & K Manson Limited

In assessing damages for asbestos-related disease, the court must distinguish losses caused by the tort from the effects of pre-existing conditions. Modest claims for gratuitous care, domestic assistance, travel, heating, aids and equipment may be accepted where the evidence establishes that the claimant’s additional disability has made previous dependencies constant or increased the need for assistance.

When valuing gratuitous care, the appropriate hourly rate depends on the nature and timing of the assistance, subject to the appropriate discount for its gratuitous character. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 prevents NHS availability being relied upon to challenge the reasonableness of personal-injury expenses. Part 36 consequences may include enhanced damages, interest and indemnity costs.

The claimant sought assessment of damages following judgment on liability against his former employer for occupational asbestos exposure between 1963 and 1968. He developed asbestosis, against a background of COPD, serious back and leg injuries, and bowel cancer.

The issue was the extent to which his current care needs, domestic assistance, travel, heating, aids and equipment were attributable to asbestosis rather than his earlier conditions. The court also determined the appropriate level of general damages, lost-years damages, and the consequences of the claimant’s Part 36 offer.

1. Causation and evidence. The claimant and his wife were honest witnesses whose inability to recall historic detail with forensic precision did not undermine their evidence. The court found that asbestosis had converted intermittent dependence caused by earlier conditions into constant and permanent dependence. The resulting additional care and domestic assistance were recoverable.
2. Heads of loss. The court allowed claims for daily personal care, gardening, DIY, window cleaning, hospital travel, increased heating, and aids and equipment. The claims were modest and reasonable. The appropriate rate for care was the basic weekday daytime rate in Chapter K1 of the Professional Negligence Bar Association’s Facts & Figures book, discounted by 25% to reflect gratuitous care.
3. Aids and equipment. Relying on Najib [2011] EWHC 1016 (QB), the court accepted that expenditure on reasonable private aids and treatment-related items could be recovered even where the treatment was not provided by the NHS. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 required the possibility of NHS provision to be disregarded when assessing reasonableness.
4. General damages. Having regard to section 6(C) of the Judicial College Guidelines, the claimant’s asbestosis-related disability and its likely progression, the appropriate award for pain, suffering and loss of amenity was £55,000. Lost-years damages were agreed at £1,930.13.
5. Disposition and Part 36. The total damages and ordinary interest were £91,438.54. The claimant’s offer of £72,500 engaged CPR Part 36.17(4). The court awarded an additional £9,143.85, enhanced interest of £2,200, and indemnity costs from 1 August 2022, with interest on those costs at 12% per annum. Earlier costs were payable on the standard basis.