Compensation payable to victims of asbestos-related conditions such as pleural plaques could rise following a new decision of the Court of Session, according to the legal firm that acted for the pursuer.
Solicitors Digby Brown believe that the £15,233 awarded to Roger Harris in his action against the Advocate General, representing the Ministry of Defence, is significantly more than the levels generally provided for in voluntary framework agreements currently used by some legal firms and insurers to value this type of claim, potentially setting a new standard for awards of this nature in Scotland.
Mr Harris developed pleural plaques as a result of being exposed to asbestos dust and fibres whilst working as a boilermaker with the MoD between 1961 and 1977. Pleural plaques are benign in themselves, but are an indicator of exposure to asbestos, and bring a lifetime risk that the individual may develop further conditions including pleural thickening, asbestosis, asbestos related lung cancer and mesothelioma.
Liability was admitted in Mr Harris's case, as was the evidence relating to damages, and the only decision for the court was the level of damages that should be awarded. The pursuer argued that as he was seeking a final settlement and not a provisional award with the right to return to court if a further condition developed, he should receive the equivalent of a provisional award plus an award reflecting the percentage risk (5.2%) of developing mesothelioma or asbestos related lung cancer. Supporting a valuation of £8,996, the defender argued that it was not necessary to carry out a two stage exercise and that a broad approach should be taken in line with previous cases.
The judge, Lord Boyd of Duncansby, said that in this case there was one injury but different risks, and he saw "nothing wrong in assessing the risks that flow from the one injury and aggregating these provided care is taken not to double count".
He added: "In my opinion the appropriate approach in this case is to take the approximate full value for each of the two conditions, mesothelioma and lung cancer and apply the appropriate percentage risk to the full value of each condition."
Using figures from the Ogden (actuarial) tables and applying the percentage risk factor brought out the sum awarded when discounted for early payment and added to the damages for past loss.
Fraser Simpson, Digby Brown partner and head of the firm’s industrial disease department commented: “This is a very significant decision for those whose lives have been affected as a result of asbestos exposure. Asbestos exposure disease is not a legacy of our industrial past but something affecting individuals and families in Scotland today.
“Although the diagnosis of pleural plaques is shocking enough, sufferers are also forced to cope with the daily fear that a more serious disease may develop. The decision recognises the importance of assessing each case subjectively, and shows the progress made by Scottish courts in recognising the distress caused by the presence of pleural plaques.”