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David Pugh

David Pugh

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Grant v Secretary of State for Transport: Guidance on Mesothelioma quantum

Client Alerts06/07/2017

Few mesothelioma cases run to trial on quantum. Defendants are wary of the court’s natural sympathy for individuals whose lives are cut short by a pitiless disease. Claimants are unlikely to gamble on their one chance at financial security. This means that where quantum trials do occur they guide countless other settlements.

The significance

The decision in Grant covers a number of different aspects of quantum. We’ll only cover some of these here. Possibly the most significant financial implication lies in the finding on general damages.

The other heads of claim carry some lessons and reminders. Mr Grant’s care claim was pleaded at over £43,000. The judge relied on the claimant’s description of the deceased’s care needs instead of just looking at what was in the medical records. He allowed full time care for the last two and a half months of life. He discounted the claim due to double counting by the claimant’s expert. He also said that claims for relatives’ care during hospital stays would be rare and modest. He awarded £29,000 in total.

The biggest part of the claim was for the loss of profits from a property development in which the deceased was involved. This development was at a relatively early stage at the date of death, but was far from speculative. The judge rejected both parties’ approach to this and invited further submissions. He emphasised the loss of value from the deceased’s own contribution and recognised the principle that there could be no recovery to reflect assets which were being inherited in any event.

There was a claim for loss of intangible benefits. There are doubts about whether this is recoverable as a separate claim. The judge emphasised the additional burden of arranging outside help for services that would have been carried out by the deceased. He awarded £2,500. There seems to be duplication here. Although services claims are often calculated arithmetically, they are still a jury award - i.e. a broad brush assessment of loss. There must still be doubt about whether these are proper claims. Insurers can expect to get more of them following this case.

The background

Mr Grant was 67 when his symptoms began. He died more than three years later. He underwent three sessions of pleural aspiration. He suffered particular side effects from chemotherapy including hallucinations, tinnitus and nausea. He experienced breakthrough pain, increasing from severe to ‘extreme’ in the last few months of his life.

General damages

The judge awarded £92,500 for general damages. He set out five reasons for this award which is almost at the top of the Judicial Studies Board (JCB) guidelines:

  1. Duration of symptoms - 40 months
  2. The chemotherapy side effects
  3. The severe/ extreme pain in the final months
  4. Breathlessness and pain in the earlier months
  5. The deceased’s concern for the well being of his family.

The second and third are plainly reasonable criteria. It is difficult to see how aspects (4) and (5) are unusual in mesothelioma claims.

The first aspect should give insurers pause for thought. It seems to have been the most important factor in the judge’s assessment. Mesothelioma sufferers are living longer with their disease. Advances in chemotherapy, radiotherapy and immunotherapy promise to extend this further. If general damages are primarily linked to survival, high awards will become the norm.

It seems doubtful that this does reflect the proper position. A better approach is seen from Mrs Justice Swift in Ball [2012] EWHC 145 (QB). In a much more detailed judgment on general damages she firmly rejected the emphasis on symptom duration and equally firmly emphasised the overall effect on the sufferer. That is, after all, what damages are for.