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6 April, 2016

Roger Harris v The Advocate General [2016] CSOH 49

Ampersand’s Simon Di Rollo QC and Laura Thomson (Arnot Manderson) appeared for the pursuer and Ampersand’s Graham Primrose QC and Hugh Olson (Arnot Manderson) for the defender in the second Scottish case quantifying damages for asbestos related pleural plaques since the Damages (Asbestos-related Conditions) (Scotland) Act 2009 came into force. The Act reversed Rothwell v Chemical & Insulating Co Ltd and Another [2008] 1 AC 281, which had held that pleural plaques do not amount to a personal injury giving rise to a right to damages. Unlike the pursuer in WW v The Advocate General 2015 SLT Mr Harris sought a full and final award. This case provides authoritative guidance as to the appropriate approach to such awards as well as confirming the range for solatium proposed by the Lord Ordinary in WW.

Mr Harris developed pleural plaques as a result of exposure to asbestos while working as a boiler-maker for the Ministry of Defence from 1961 to 1977. Liability was admitted on record and the proof proceeded on quantum only. All of the evidence was agreed by way of a joint minute. The pursuer was 70 at the date of proof (October 2015) with a normal life expectancy.

The pursuer sought a full and final award for his asymptomatic condition. The evidence was that he was at a 5% increased risk of developing mesothelioma a 0.2% increased risk of developing asbestos related lung cancer.

The Lord Ordinary assessed solatium at £7,500. It was accepted that the pursuer’s anxiety was less than in WW. The method and assessment of financial loss proposed by the pursuer was set out in the valuation contained in the table below.  In that regard it is noteworthy that the Rothwell methodology for calculating full and final awards has now been followed in Scotland. This involves calculating the value of the prospective mesothelioma (and if appropriate lung cancer claim) and multiplying it by the percentage risk of it developing. A discount for early payment should be made. The court accepted that if any discount is to be made in respect of other health problems evidence of a shortened life expectancy is required.

The Court accepted the approach of the pursuer as follows:

 

HEAD OF CLAIM COMPONENTS VALUATION
Solatium

Range in Wales 5,500 – 9000

Half to past £7,500
Interest on past solatium

From 8/01/2013 to date (20/10/15)

4% £417
Damages in respect of future risks: 5% chance of developing mesothelioma and .02% chance of developing asbestos related lung cancer

(5.2%)

 

Solatium

 

Agreed £66,000

x 5.2% = £3,432

 

Lost years

 

Age 70; table 1 multiplier = 17.32. Round down to 17. Assume death at mid-point, years, at age 78.5 years

 

Net annual pension = £16,369 (MOD £79.83 pcm; state pension £571 pcm; BP £713.23 pcm); x 7.66 (term certain halfway between 8 and 9 years, table 28) = £125,387

Less 25% deduction in terms of s1 of the Damages (Scotland) Act 2011

 

= £94,040 for lost years

 

x 5.2% risk = £4,890

 

Services

 

£13,500

x 5.2% risk = £702

 

Solatium 3,432
Lost years 4,890
Service 702
TOTAL 9024

 

9024 x 0.8107 for early payment (Table 27)

 

=£7,316

 

£7,316
TOTAL FULL AND FINAL DAMAGES £15,233

 

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