First High Court Assessment of PSLA for Asbestosis in 20 Years

On 10 November 2022, in the High Court, King’s Bench Division, Damian Powell, instructed by James Traynor of Plexus Law, appeared on behalf of the Defendant’s insurer at an assessment of damages hearing in an asbestosis claim.

On 24 November 2022, HHJ Blair KC (sitting as a Judge of the High Court), handed down his judgment arising out of that hearing: see Brown v G & K Manson Ltd [2022] EWHC 3004 (KB). The judgment is available here.

The case is believed to be the first High Court judgment on the quantum of general damages for pain, suffering and loss of amenity (“PSLA”) in an asbestosis in over 20 years, since Blair v Michelin Tyre plc [2003] CLY 3128 .

The agreed expert evidence was that the Claimant had an overall respiratory disability in 2019 of 45%, of which 20% was attributable to asbestosis. This had increased to an overall respiratory disability of 55% by February 2022, of which 25% was attributable to asbestosis. It was predicted that the respiratory disability attributable to asbestosis would increase by a further 5% during the Claimant’s lifetime.

The Claimant argued the award for PSLA should be £65,000 on a provisional basis. By contrast, Damian submitted on behalf of the Defendant that, applying the appropriate bracket of the Judicial College Guidelines (16th ed.) and comparable cases from Kemp & Kemp: Quantum of Damages to the evidence in this case, the appropriate award should be £45,000 on a provisional basis.

At [27]-[30] of his judgment, having considered the above arguments, HHJ Blair KC found that the right award taking account of the levels of with a respiratory disability was £55,000.

The Court also accepted Damian’s submission that the starting point for care and assistance provided gratuitously by close family members, the majority of which was, or could have been, carried out during the daytime on weekdays (before applying the conventional 25% reduction to reflect the non-commercial nature of that care pursuant to Evans v Pontypridd Roofing Ltd [2002] PIQR Q5) is the basic rate taken from Spinal Point 2, rather than the aggregate rate for which the Claimant contended. Support for the submission can be drawn from Facts & Figures 2022/23, Section K1 at paragraph 20(b). The acceptance of the submission by the Court at [21]-[23] of the judgment resulted in Claimant’s claim for past and future care and assistance being reduced by approximately £10,000.

The reasons why this mater proceeded to an assessment of damages hearing rather than a settlement are alluded to at [3] of the judgment. Further information, if desired, is available by e-mailing Damian at [email protected].