MEASURE OF DAMAGES : MESOTHELIOMA : DEATH FROM MESOTHELIOMA

Where the court was required to assess the amount of damages resulting from the death of an individual from mesothelioma, £77,500 was appropriate for pain, suffering and loss of amenity where the individual had incurred a useless and painful arm in addition to increasing respiratory disability, and the general damages were to be near the top end of the bracket suggested by the Judicial Studies Board.

The court was required to assess the amount of damages resulting from the death of the claimant (F) from mesothelioma. F was a ceiling fixer, and although he was accepted by the Revenue as self-employed, for intents and purposes he had one principal employer. F had worked regularly for the company for several years, and the company was in good health. F suffered symptoms of breathlessness and gave up work immediately. He was diagnosed with malignant mesothelioma. He began to lose the use of his right arm, which became swollen and painful and remained a problem until his death, and he used morphine throughout the rest of his illness. He died around 22 months after the symptoms first showed.

HELD: (1) £77,500 was appropriate for pain, suffering and loss of amenity. Guidelines from the Judicial Studies Board suggested that the bracket for general damages for pain and suffering for mesothelioma was from £52,500 to £81,500. F had incurred the complication of his painful arm in addition to respiratory disability, and the general damages were to be nearer the top of the range, Beesley v New Century Group Ltd (2008) EWHC 3033 (QB)

considered. (2) A fair estimate of F's probable average annual pre-tax earnings throughout the period between his retirement through ill-health and trial was £29,000. His business accounts showed approximate average annual pre-tax earnings in the three years prior to his retirement of around £27,000-£28,000, and it was also necessary to take into account an increase of 2.5 per cent per annum due to increased working on F's part and for the value of the benefits allowed to the self-employed. (3) The future lost earnings dependency multiplicand from trial to notional retirement date was £32,000 per annum before tax. That was based on a pre-tax profit of £30,000, future improvement in the daily rates due to recovering prosperity in the building trade and F's increased productivity in light of his desire to provide a proper pension for himself and his wife. (4) The discount from the actuarial multiplier for dependency was to be no more than 10 per cent. There had to be some reduction for the possibilities of illness or injury, but there was no significant risk of unemployment. (5) A 25 per cent deduction for the reduction from care costs was well established in case law and practice, and was appropriate in the instant case. (6) F's wife was considerably older than he was, and would have needed more than usual care as the years would have gone on, which F would have provided. It followed that £2,500 was appropriate to award for special care, Regan v Williamson (1976) 1 WLR 305 QBD and Beesley considered. (7) A sum of £1,500 per annum for services dependency was appropriate.

Damages assessed

[2009] EWHC 3166 (QB)

JUNE FLEET (WIDOW & EXECUTRIX OF THE ESTATE OF MICHAEL FLEET, DECEASED)

v ROY FLEET (2009)

QBD (Mackay J) 4/12/2009