Harris v. MOD [2016] CSOH 49

The pursuer, Roger Harris, was employed by the MOD as a boilermaker between 1961 and 1977. He was exposed to asbestos dust and fibres whilst working in and around friable lagging. He developed pleural plaques and raised a court action against the MOD seeking full and final damages.

Liability was admitted and all the evidence was agreed. There was no evidence of exposure during any other period of employment. The case focused purely on the appropriate award for a full and final settlement in a pleural plaques claim.

Mr Harris was 70 years of age at the date of proof, never smoked, and was in good health, subject to well controlled hypertension and dyspepsia. His uncle, whom he had worked alongside at the MOD, had died of pulmonary asbestosis, precipitating Mr Harris' attendance for a chest X-ray in January 2013.

Dr Doward prepared a report on Mr Harris' condition. His opinion was that Mr Harris had a 5% risk of developing mesothelioma, and in addition a 0.2% risk of developing asbestos related lung cancer.

The parties were in agreement that should Mr Harris develop mesothelioma or lung cancer, the value of solatium would be £66,000.

It was also agreed that Mr Harris receives various pensions totalling £16,369 per annum.

TWO DIFFERENT APPROACHES

Counsel for Mr Harris referred to the case of William Wales v. The Advocate General for Scotland [2015] CSOH 111. In that case the Court considered the appropriate level of provisional award for a 69 year old man who had developed pleural plaques. Mr Wales was extremely anxious that he would develop a more serious asbestos related condition.

Lord Pentland in Wales identified a range of potential provisional awards, between £5,500 and £9,000, depending on the level of anxiety of the pursuer. Lord Pentland assessed an appropriate award for Mr Wales in the sum of £8,500.

Counsel for Mr Harris argued that the level of anxiety suffered by him was less than Mr Wales, and in the mid-range of anxiety levels. He argued that the provisional element of the award should be £7,500 plus interest (at 4%).

The key issue in the case was how to deal with the uplift in respect of a full and final award.

The argument on behalf of Mr Harris was that the approach adopted by Smith LJ in Rothwell v. Chemical and Insulating Co Ltd & Anr [2006] EWCA Civ.27 should be applied. This approach assesses the percentage risk of developing a more serious asbestos condition and applies that to the value of any future claim for...