England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2007

The Honourable Mr Justice Wyn Williams:

1. The Claimant was born on the 11^th March 1948. Between about 1965 and 1967 he was employed as an insulation engineer by the Defendant. Following periods of employment with other employers he returned to work for the Defendant in about 1969 or 1970s. That period of employment continued, probably, until 1976. During both periods of employment the Claimant was exposed to asbestos dusts.
2. For the whole of his adult life the Claimant has smoked cigarettes. His average consumption is and has been of the order of 20 cigarettes per day. The Claimant has no current intention to give up smoking.
3. On 9^th September 2003, the Claimant was medically examined by Dr RM Rudd. The examination was arranged by his solicitors and its purpose was to establish whether or not the Claimant suffered from any illness as a consequence to his exposure to asbestos.
4. As part of his examination Dr Rudd arranged a series of x-rays. The x-rays revealed that the Claimant had bilateral chest wall and diaphragmatic calcified pleural plaques which were characteristic of asbestos exposure.
5. Dr Rudd found no other condition which was attributable to asbestos exposure during the course of his examination. In particular he found no evidence of diffused pleural thickening or asbestosis of the lungs.
6. Pleural plaques, of themselves, do not cause disability. As is to be expected, however, anyone who has worked with asbestos and who has plaques as a consequence of asbestos exposure is likely to be anxious about what the future might hold.
7. Following his medical examination Dr Rudd wrote a medical report which is dated the 9^th October 2003. In that report the doctor identified various risks to which the Claimant is subject as a consequence of his exposure to asbestos. They are (a) a risk (which is estimated at 2%) that the Claimant will develop diffused pleural thickening sufficient to cause disablement due to breathlessness; (b) a risk (again estimated at 2%) that the Claimant will develop clinical and radiological evidence of asbestosis and that the asbestosis will cause disablement due to breathlessness (c) a risk (estimated at 5%) of contracting malignant mesothelioma and (d) a risk of developing lung cancer. I will deal in more detail with the extent of that risk later in this judgment.
8. On the 18^th February 2004, the Claimant issued proceedings against the Defendant. The Claim Form and Particulars of Claim were served quickly thereafter. By its Defence, the Defendant admitted that the Claimant was negligently exposed to asbestos and asbestos fibres during his periods of employment. The Defence made "no admissions" as to the alleged pain and injury and risk of future injury. The Defendant specifically pleaded that the medical evidence (the report of Dr Rudd to which I have referred) was not agreed.
9. The claim came on for hearing before Holland J as one of a number of test actions. Before that learned Judge the Claimant relied upon an amended schedule of special damages and future loss. In that document he claimed that general damages for pain suffering and loss of amenity should be £17,500 and he also claimed financial losses of approximately £25,000.
10. Following a contested hearing, Holland J awarded the Claimant the sum of £7,000. As I understand it the award was for general damages alone. The Learned Judge declined to make any award for financial loss.
11. The Claimant appealed against the decision of Holland J and his appeal was upheld. The reasons why the appeal was upheld are contained within the judgment of Smith LJ in the Court of Appeal. However the Court felt unable to assess the appropriate award of damages. In consequence the case was remitted for a further hearing to determine the appropriate award of damages in this case.
12. One of the reasons why the Court remitted the case for a re-hearing was that in 2003 the Claimant suffered a "coronary event". I use that phrase because the cardiologists in this case were content to use it as a description. In the hearing before me the parties have explored in detail the nature of the Claimant's coronary illness and its likely impact upon his health, life expectancy and working capacity.
13. At first blush the parties' position appeared polarised on a number of issues relating to the Claimant's coronary illness. As the evidence unfolded, however, it seemed to me that the differences between the expert witnesses on these issues were not particularly significant in relation to the central issue for my decision, namely, what is the appropriate award of damages in this case. However, I appreciate that the parties' may take a different view and that it is necessary for me to deal with the evidence relating to the Claimant's coronary illness in some detail and make findings about it. It is to that illness and its significance that I turn first.
14. On the 5^th March 2003, the Claimant attended hospital complaining of central chest pain. An electrocardiogram was performed which was abnormal. Nonetheless the Claimant discharged himself on that day. The next day he returned to hospital and he disclosed that he had been suffering from chest pain for approximately three weeks. A second electrocardiogram was undertaken and the changes shown were more pronounced than they had been on the previous day. On this occasion the Claimant remained as an in-patient of the hospital and the next day an exercise test was performed. The Claimant completed six minutes and twenty-seven seconds. The ECG was abnormal first during exertion and then upon resting after the test. During the course of recovery the Claimant developed a chest pain. In the light of these investigations, it was recommended that the Claimant should undergo coronary angiography.
15. On the 7^th November 2003 a diagnostic coronary angiogram was performed. That showed narrowing in the left anterior descending vessel of the left coronary artery. The angiogram also showed that the left circumflex branch was anatomically dominant and while there was narrowing in one of the branches there was no significant flow limiting stenosis. The right coronary artery was shown to be very small and with narrowing in the mid portion.
16. As a consequence of these findings the Claimant was referred for an angioplasty. That procedure was carried out in late January 2004. A Taxus stent was placed in the left anterior descending artery. No other treatment was undertaken.
17. In the immediate aftermath of this procedure and for some months thereafter the Claimant complained of chest pain. On the 30^th October 2004 the Claimant was examined by Dr Charles Hind, a consultant physician, on behalf of the Defendant. The primary purpose of the examination was to consider the alleged asbestos related illness. Nonetheless in his report and Dr Hind records:-

"He continues to experience angina. He describes chest pain on lifting heavy items, for example on lifting a heavy drill and walking 20 yards. He also experiences angina during sexual intercourse. On the flat, he experiences angina on walking at a quick pace at approximately 200 yards……. On the stairs he only experiences angina, if he goes up and down the same several times."

18. At some point in time, and the evidence did not pinpoint it precisely, the Claimant's chest pain diminished and then disappeared. By the time he was examined by the cardiologists in this case (in 2006) he had no complaint of a similar nature to those which he had made to Dr Hind.
19. Since the angioplasty in 2004 the Claimant has been prescribed and has been taking medication. He takes Lipitor, a drug of the statin family, Isosorbide Mononitrate and Aspirin daily.
20. As I have indicated the parties have obtained medical reports from cardiologists. The Claimant's advisers instructed Dr Peter Mills, a consultant cardiologist at the Royal London Hospital, the London Chest Hospital and St. Bartholomew's Hospital. The Defendant has instructed Professor Kevin Channer, Honorary Professor of Cardiovascular medicine at Sheffield Hallam University and a consultant cardiologist and physician.
21. Both cardiologists agree that the Claimant did not suffer a myocardial infarction (commonly referred to as a heart attack) in March 2003. Both are content with the description "coronary event" to describe what occurred.
22. The cardiologists do not agree about whether the subsequent investigations reveal that the Claimant was suffering coronary disease in one vessel or more than one vessel at the time of the event in March 2003.
23. Before dealing with this point in some detail, I note that the genesis of this dispute is a short report written not by a cardiologist but Dr Rudd on the 18^th June 2004. In that report, Dr Rudd was seeking to assess the Claimant's life expectancy by reference to his medical records and his known conditions. That led Dr Rudd to consider the medical records relating to the Claimant's coronary illness. In his conclusion Dr Rudd said this:-

"It appears that his coronary disease was essentially one major vessel, i.e. left anterior descending artery, with a lesion in a tiny non-dominant right coronary artery considered irrelevant. Subject to any view which might be expressed by a cardiologist, if a report is obtained from such an expert, I would refer to Brackenridge and Elder Medical Selection of Life Risks which suggest with the onset of symptoms of coronary disease at age 55, following angioplasty for single vessel disease a mortality ratio increment of plus 100 should be accorded and this translates to a reduction in life expectancy of 6 years at his age."

24. In his report of 14^th June 2006, Dr Mills expressed himself in his way:-

"8. Dr Rudd's report of 9^th October 2003 emphasises the importance of categorising this man's coronary artery disease. The anatomy of a coronary artery is subject to congenital variation. The norm is for there to be three equally important vessels, the left anterior descending, the left circumflex and the right coronary artery. There is a close interrelationship between the right coronary artery and the left circumflex vessel and in practice there is a wide spectrum of anatomical balance between these two vessels. When the right coronary artery is large and supplies the inferior lateral walls of the left ventricle the left circumflex branch is correspondingly small. By contrast in the case of Mr. Hindson, when the left circumflex artery is large, the right coronary artery is small and was described by the interventional Cardiologist Dr. Gunn as being "tiny."

It is clear that in this case Mr Hindson has had only one severe stenosis in his left anterior descending artery treated on a single occasion. I therefore agree with Dr Rudd's categorisation that this man has essentially single vessel coronary disease. The stenosis in his tiny right coronary artery will have no impact on his life expectancy, a small distribution of the artery being of far greater importance than the severe narrowing within the vessels.

Dr Gunn has published a number of papers in the literature on interventional cardiology, and if in his opinion the angiographic findings in the left circumflex vessels are spasms rather than of atheroma then I would take this as good evidence that the large circumflex vessel is not significantly diseased."

25. The reference by Dr Mills to Dr Gunn is a reference to the person who carried out the angioplasty in January 2004. The Claimant had been referred to Dr Gunn by Dr Payne who had carried out the angiography in November 2004. Following the undertaking of the angiography there was an exchange of letters between those two doctors. On the 18^th November 2003, Dr Payne wrote to Dr Gunn as follows:-

"I would be grateful if you could take on this gentleman for angioplasty for his LAD. I think that his RCA is too small. There was diastolisation on injection using a 4F catheter as I suspect a guiding catheter is going to choke it completely. I would be interested in your views."^[1]

On the 25^th November 2003 Dr Gunn replied. His short letter was headed: -

"Diagnosis: 1. Two Vessel Disease

Many thanks for your referral of 18^th November 2003. As usual I entirely agree with your assessment that the LAD and RCA may well be suitable for PCI."

Following the carrying out of the angioplasty Dr Gunn wrote a discharge summary to Dr Payne.^[2] In that discharge summary he wrote:

"we did not attempt the tiny non-dominant RCA."

The contemporaneous notes of the angioplasty are also before me. In relation to the right coronary artery the following appears:-

"RCA artery viewed. Decision taken not to proceed"^[3]

26. On the basis of the above, it seems clear to me that Dr Gunn was of the view that two of the Claimant's blood vessels were diseased. I refer to the left anterior descending and the right coronary artery.
27. In his letter of the 16^th January 2007 Professor Channer seemed disposed to argue that there were three diseased blood vessels. He certainly considered that the left anterior descending and the right coronary artery were diseased. He also considered that the circumflex coronary artery was diseased. In his oral evidence, however, the Professor seems to dispose to accept that the diseased vessels were the left anterior descending and the right coronary artery. He did so as I understand it because he accepted that the apparent lesion in the circumflex had been spasm which had corrected itself during the angioplasty.
28. On the basis of the evidence before me, I am quite satisfied that the cardiologists and surgeons as a matter of practice commonly categorise whether a person is suffering from disease in one vessel or more than one vessel. In this case the treating cardiologist, Dr Gunn, clearly diagnosed that the Claimant had two vessel disease. I can see no basis for departing from that categorisation despite the evidence of Dr Mills and Dr Rudd.
29. What is more difficult, however, is to assess the significance of that categorisation. Normally, the prognosis of a person who has disease in more than one blood vessel is taken to be less optimistic than the prognosis for a person with disease in one vessel only. Put crudely, the life expectancy of a person with disease in more than one vessel is thought to be less than a person suffering from disease in one vessel only.
30. In this case, of course, the debate is about whether the Claimant's right coronary artery is diseased. As a matter of fact this vessel is tiny and I can understand Dr Mill's thesis that the work of the right coronary artery is essentially performed by the left circumflex in the case of Claimant.
31. Professor Channer does not agree, completely, with this thesis. He accepts that that part of the right coronary artery's function which relates to supplying blood to the left ventricle is probably performed by the circumflex artery but he does not accept that that is the only function of the right coronary artery.
32. Having considered the evidence with some care I not prepared to accept that the disease of the right coronary artery which undoubtedly exists in this case should be treated as a significant factor in shortening the Claimant's life expectancy. Whilst, therefore, I accept that as a matter of categorisation the Claimant should be regarded as having disease in two vessels in the particular context of this case I do not think that his life expectancy should be considered reduced to any significant degree by virtue of there being disease in his right coronary artery.
33. The issue of life expectancy consequent upon the Claimant's coronary disease was also fiercely debated by Dr Mills and Professor Channer. They both agreed that his life expectancy was reduced. It was reduced because (a) the Claimant had suffered the coronary event to which I had referred (b) because he had smoked cigarettes throughout his adult life and (c) because he continued to smoke cigarettes at the rate of approximately 20 per day. They also agreed about the most likely cause of any premature fatality. The most likely cause was a sudden occlusion of an artery by the rupture of a plaque within it. Cigarette smokers are prone to develop plaques within arteries and the 2003 and 2004 investigations carried out upon the Claimant had revealed the presence of such plaques.
34. The disagreement between the cardiologists related to the predicted reduction in the Claimant's life expectancy. Professor Channer thought that the Claimant's life expectancy was 10 years from 2006. Dr Mills thought that his life expectancy had been reduced by 10 years. That equated to a prediction of a further 15 years life expectancy from 2006.
35. On Professor Channer's thesis, therefore, the Claimant's was likely to die before he reached the age of 70 whereas in the opinion of Dr Mill he was likely to die sometime after that age.
36. Both cardiologists sought to support their views by reference to medical literature. Dr Mills relied upon a very recent article which had as its objective the investigation of the prognosis of patients who were suffering with stable angina. The basis for that investigation was a pan-European survey of patients attending cardiology services with a new presentation of stable angina.^[4] However no patient who had suffered from unstable angina was included within the surveyed group. It is common ground that the Claimant had suffered from unstable angina in 2003 so that he, personally, would not have been eligible to be within the group surveyed.
37. It seems to me that Dr Mills had to accept that he had used this survey simply because it was very recent. However, I would be very wary about relying upon the results of this survey given that no patient within it was suffering from the same condition as the Claimant.
38. Professor Channer relied principally upon a paper concerned to establish the efficacy of cholesterol lowering medication (simvastatin).^[5] This paper, in my judgment, was, on its face, much more relevant to the Claimant since (a) the Claimant takes cholesterol lowering medication of the type considered in the survey and (b) he was within the class of patients surveyed in that patients with unstable as well as stable angina were included. The difficulty I had with the evidence adduced by Professor Channer based upon this survey was his use of the figures within it. I need not dwell upon the precise criticisms levelled against the Professor's methodology by Mr Burton QC in cross-examination since Professor Channer readily accepted the possibility that his prediction of life expectancy based upon the survey was too pessimistic.
39. In 2006, for the purposes of this litigation, tests were undertaken upon the Claimant. They revealed that the Claimant had good left ventricle function on a thalium scan and there was no inducible myocardio ischemia on that scan. Although there was a debate about whether the ECG showed abnormality or not, on an exercise test the Claimant achieved more than 12 minutes.
40. I accept that currently the Claimant has no symptoms of angina. He is taking cholesterol lowering medication and his cholesterol reading (4.7) is acceptable. The Claimant is not diabetic, he is not overweight, he takes regular exercise and there is no family history of heart disease. He does not have peripheral vascular disease.
41. What that means is that the only factors which increase the Claimant's risks of developing a fatal illness associated with his coronary disease are (a) the fact of the previous coronary event and (b) his continued cigarette smoking.
42. Doing the best that I can on the basis of the expert evidence I propose to proceed upon the basis that Claimant's life expectancy is such that he will survive until at least the age of 70. In reaching that conclusion I am conscious that there is a degree of fudge. In my judgment, however, that is unavoidable when I am told (as I was) by each of the cardiologists that their predictions of life expectancy were and could be no more than informed estimates.
43. The final factor of significance relating to the Claimant's coronary disease is to consider what if effect, if any, it would have on his working capacity. Currently, it is common ground that it has no effect upon that capacity. If a coronary event were to occur in the future there is no way of predicting whether it would prove fatal, permanently incapacitating or whether it would be of a type which would allow the Claimant a very substantial recovery and return to employment. It seems to me that all I can do is to acknowledge that there is risk (which is unquantified) that within the Claimant's likely working span a coronary event will occur which will prevent him from working. In reaching that conclusion I am simply recognising the imprecise nature of the agreement reached by the cardiologists on the issue of the Claimant's working capacity. They both signed a joint statement which reads as follows:-

"On the basis of his reported symptoms and objective findings especially on the exercise test both expert agree that he has a good exercise tolerance and on the balance of probabilities will be able to continue to work until he has either another coronary event or other serious medical condition which affect his exercise capacity."^[6]

General Damages

44. In the Claimant's Skeleton Argument an award £15,500 is suggested. In his closing submissions, Mr Feeny described that figure as a very reasonable target for the Claimant. Nonetheless, he sought to reduce it.
45. It is common ground that in this case the Claimant is to be compensated for the following:-

(a) the existence of the pleural plaques and his anxiety about what the future might hold; and

(b) the risk that he will actually develop the malignant and non-malignant diseases specified by Dr Rudd.

46. In her judgment in the Court of Appeal in the case of Rothwell v Chemical & Insulating Co Ltd & Ors [2006] EWCA Civ 27, Smith LJ suggested that in a typical case of Claimant with pleural plaques and anxiety about his future health, the award should usually be about £5,000. In the sentence that followed she said this:

"I would suggest that the bracket for the usual range of cases should be £4,000 to £6,000 but the Judge should feel free to go outside that bracket for particular reasons."^[7]

47. It seems to me that if I had been making an award of general damages on a provisional basis which was restricted solely to compensation for pleural plaques and anxiety the likely award would be about £5,000.
48. I turn to the question of risks. Earlier in this judgment I set out the risks identified by Dr Rudd save to say that I did not specify, in percentage terms, the risk that the Claimant will develop lung cancer. In relation to that risk there is a relationship between his exposure to asbestos and his cigarette smoking. Dr Rudd described it in this way in his report dated 9^th October 2003.

"The effects of asbestos exposure and smoking on the risk of lung cancer are multiplicative…….. I estimate that the asbestos exposure which he has sustained has increased his risk of lung cancer by a factor of 2.5 fold increasing his risk of lung cancer from 10% as result of smoking alone to 25% as a result of both hazards combined."

49. In the light of that evidence the parties have proceeded on the basis that the Claimant's additional risk of lung cancer due to asbestos exposure is 15% and the cumulative risk of his suffering a malignant disease due to asbestos exposure (lung cancer and mesothelioma) is 20%.
50. If one adopted a strictly arithmetical approach the award for the risk that the Claimant would develop all the conditions mentioned by Dr Rudd would be of the order of £12,000. The basis for that is set out in paragraph 12 of the Skeleton Argument of Mr Burton QC. On that basis, it would be possible to justify a figure £17,000 for general damages as a whole. In my judgment, however, that figure would be too high. Firstly, there is no more than a remote possibility that the Claimant would develop all of the conditions specified by Dr Rudd. Secondly, as Smith LJ identified in her judgment, it is necessary that there be some discount to take account of the fact that the Claimant is being compensated now for future risks. Thirdly, the Court normally sets its face against identifying separately different injuries, assessing the compensation in respect of those separate injuries and then aggregating each sum. Rather the approach is to award a global sum to reflect all the injuries, actual or potential. On that basis, in my judgment, the appropriate figure for pain, suffering and loss of amenity is £15,500 as suggested by Mr. Burton QC.
51. Mr Feeny suggested that this figure should be reduced because the Claimant was at risk of a further coronary event and because his life expectancy has been shortened by virtue of his cigarettes smoking and associated coronary disease. In making that submission he based himself on an observation of Smith LJ in the Court of Appeal who certainly appeared to acknowledge that general damages might be affected by those issues.
52. In my judgment, in the particular context of this case, I do not think it would be correct to reduce the general damages to take account of those issues. It has always been acknowledged that the Claimant's life expectancy is reduced by coronary disease and cigarette smoking. Dr Rudd's assessment of the risks of developing the asbestos related conditions took account of the Claimant's reduced life expectancy due to heart disease and cigarettes smoking as put forward by Dr Mills. I have found that the difference between Dr Mills and Professor Channer, in reality, is no more than marginal on this issue and, in those circumstances, it would not be correct to reduce the award of general damages.
53. I have to say that I do not follow the basis for reducing the general damages on account of the coronary disease except in so far as that impacts on life expectancy. With respect to Mr Feeny, he was not able to explain to me why the existing coronary disease (which causes no symptoms) or the risk of another coronary related illness should impact upon general damages (save in so far as it impacted on life expectancy).
54. To repeat, therefore, my award of general damages for pain suffering and loss of amenity is in the sum of £15,500.

Financial Loss

55. Mr Feeny submitted that no sum should be awarded since financial loss in this case was "too remote and too speculative". I do not agree. I can state my reasons shortly. It is now well established that damages can be awarded in cases where there is a risk of future financial loss. Obvious examples where such damages are awarded are (a) when there is a risk that at some future date medical treatment may be necessary for which the Claimant intends to pay and (b) when a Claimant's future working capacity has been compromised by an injury but there is uncertainty about whether or when he might need to seek alternative employment.
56. In my judgment, this case no different. The only possible distinction advanced by Mr Feeny is that the Claimant has a risk that he might suffer future financial loss for a reason unconnected to the Defendant's tort, namely his coronary condition. It does not seem to me that that can be a reason to say that he should not be compensated for the risk caused by the Defendant's tort. The correct position, in my judgment, is as follows. The Claimant falls to be compensated for the risk that he will suffer future financial loss on account of illnesses caused by the tortious conduct of the Defendant. In assessing that compensation, however, it also has to be borne in mind that he has a risk of future financial loss due to illness which is wholly unconnected to the tort. That, as I understood it, was the approach of Mr Burton QC and, in my judgment, to repeat, that is the correct approach.
57. I turn, therefore, to those factors which seem to me to be important in assessing the Claimant's future financial loss.
58. The Claimant is now aged nearly 59. On any view of the evidence, as the following details will demonstrate, he is highly motivated in terms of work. At the time the Claimant suffered his coronary event the Claimant was employed as an insulation engineer. Thereafter, in 2003, the Claimant began a business selling electrical equipment. The business was known as "H&S Wholesale Supplies". According the Claimant's current schedule of Special Damages and Future Loss that business initially prospered. However, the anticipated income did not materialise. In the year 2004/5 the net profit was £10,591 and the profit for the following year is like to be of the same order.
59. The Claimant's partner works in the business. Since about mid 2006 the Claimant has, himself, returned to lagging work. He works at a power station as a supervisor approximately 200 miles from his home. In that role he earns £800 to £1000 per week net. He works very long hours and he is away from home for most of any given month.
60. The Claimant told me, and I accept, that he can work either at the power station or in a similar role for the reasonably foreseeable future.
61. As I have said, these facts speak for themselves and obviously show the Claimant to be highly motivated.
62. The Schedule of Damages provides an arithmetical calculation of future financial loss which is predicated upon the basis that the Claimant will work until 70 years of age.
63. The Claimant's own evidence about when he might cease to work fluctuated. In his very first witness statement he said, in terms, that he intended to work to the age 65. When giving evidence before Holland J his evidence was, in effect, that he would work for as long as he could and, in giving evidence before me his evidence, at least on one interpretation, was to the same effect.
64. In support of the fact that the Claimant would be likely to work for as long as possible he told me that he had no pension provision and that once he stops working he will be reliant upon a state pension.
65. I do not find it difficult to accept that the Claimant would continue to operate his business while his health permitted. That would certainly open the possibility that he would work beyond the age of 65. In my judgment, however, it is more difficult to believe that the Claimant would continue to work as a supervisor in the lagging industry beyond the age of 65. As a supervisor, the Claimant is spared the more physical aspect of the work but as I have said, he works very long hours and long distances from his home. As he ages, there is a significant chance, at the very least, that such a lifestyle will become more unattractive.
66. It follows, in my judgment, that it would not be appropriate to begin an assessment of likely financial losses on the basis that the Claimant will probably work to the extent that he does until the age of 70. Mr Burton QC points out, fairly, that his Schedule does not actually proceed on that basis in this sense. At the Claimant's current level of earnings he receives between £40,000 and £50,000 per year net from lagging and some small additional amount from his business. The Schedule does not proceed on the basis of that level of income until the age of 70. Rather, it proceeds on the basis of a net income of £34,000 per annum.
67. Even that, however, is likely to be too generous to the Claimant. The reality is that it is extremely difficult to predict the level of the Claimant's earnings as he ages even without taking into account potential illness problems caused by his coronary disease.
68. In my judgment an arithmetical approach is simply not possible in this case given the imponderables in relation to (a) the age to which the Claimant might work assuming good health (b) his level of earnings and (c) the risk that he will be prevented from working by coronary disease. It seems to me that the arithmetical calculation of the Claimant's future income loss has but one advantage. It provides an upper limit for his claim.
69. In round figures the Schedule seeks an award of £15,000 for loss of net income and just over £1000 for loss of state pension.
70. I have reached the conclusion that an appropriate award to represent the risk of future financial loss is £8,500. To repeat, I regarded it as impossible to arrive at an assessment arithmetically. I base my assessment on the following important factors:-

(1) the Claimant's undoubted motivation in relation to work;

(2) the likelihood that he would continue to earn at a high level in the absence of an asbestos related illness until he ceased to work;

(3) the possibility that he will continue to work beyond the age of 65 and the greater likelihood that his business will continue when the Claimant was beyond that age and

(4) the risk that an illness related to his coronary condition will intervene to prevent his working.

In truth, my award represents no more than a comparatively small percentage of the Claimant's current annual net wage. Standing back, as I am required to do, that seems to me to reasonably reflect the risk to the Claimant that he will suffer wage and/or pension loss.

71. The Claimant also seeks an award on the basis that should he suffer from asbestos related malignancy he would require nursing services and equipment. It seems to me that the sum claimed, which is £2,000, is wholly uncontroversial in this context and I propose to award it. Certainly Mr Feeny advanced no submission to me as to why I should make no award or make an award which was less than £2,000.
72. It follows that my award for future financial losses is £10,500. That means that the total award is £26,000. No doubt Counsel will calculate interest on general damages to the date when this judgment is handed down and that sum will be added to the judgment.

Note 1   Bundle 3 page 353    [Back]

Note 2   Bundle 3 page 538    [Back]

Note 3   Bundle 3 page 579    [Back]

Note 4   See Bundle 5 Divider 46    [Back]

Note 5   See Bundle 5 Divider 45    [Back]

Note 6   Bundle 2 page 491a    [Back]

Note 7   See Paragraph 162 of the Court of Appeal Judgment    [Back]