In the recent High Court case of Head v The Culver Heating Co Ltd  EWHC 1217 (QB), the defendant accepted liability for negligently exposing the claimant to asbestos in the course of his employment as a heating engineer, between 1974 and 1979. In March 2018, the claimant was diagnosed with mesothelioma. By order of Master Gidden, on 28 November 2018, the defendant was ordered to make an interim payment of £200,000 in damages (excluding costs).
Pre-trial, damages for the following heads of loss had been agreed:
- Care and assistance – £15,000;
- Travel expenses – £3,497.10;
- Miscellaneous expenses – £1,000;
- Private Medical treatment – the Defendant agreed to indemnify the claimant in respect of future private medical care, including immunotherapy;
- Audiology costs – £5119;
- House adaptations – £52,822; and
- Equipment – £3,250.
The purpose of the present expedited trial, therefore, was to discuss the remaining, disputed heads of loss, principally:
- Loss of earnings in the ‘lost years’ – ???; and also
- General damages for pain, suffering and loss of amenity – ???
What Is The Correct Legal Approach When Assessing A ‘Lost Years’ Claim?
A claim under the ‘lost years’ head of loss typically arises in a case where the claimant is alive, but has a reduced life expectancy as a result of their injury.
A claimant may recover, by way of a ‘lost years’ claim, the income that they would have received, had their life expectancy not been cut short by personal injury – this was established in Pickett v British Rail Engineering Ltd.  AC 136.
Accordingly, where such a claim is advanced, the conventional method of determining its value is as follows:
- The Court determines what the claimant’s expectation of life would have been but for the injury.
- The Court determines what the claimant’s expectation of life actually is, having regard to the effect of the injury.
- The Court assesses the difference between the (1) and (2). This constitutes the extent of the ‘lost years’.
In Head, there was a gulf of disagreement between the parties. Respectively, the claimant and defendant assessed the ‘lost years’ claim at £4,421,683 and at nil.
Instructed forensic accountants, Mr Stanbury (for the claimant) and Mr Forth (for the defendant) accepted that the answer to the question of the correct legal approach was a matter for the court to decide.
It was factually relevant that a ‘significant’ proportion of the claimed losses in the present case were derived from investments (90% shareholding in a ‘multi-million pound turnover’ business), which were likely to survive the claimant’s death.
In the case of Adsett v West  QB 826, which the defendant relied upon, McCullough J stated that, while income arising from a claimant’s capacity to work was recoverable in a ‘lost years’ claim, income derived from capital which survives a claimant’s death was not.
‘... in approaching the loss of income for the lost years I shall ignore the income which would have resulted from the capital which the deceased already owned at death’.
Whereas, the claimant contended that Adsett should be distinguished on the facts, as the return on his investment was a ‘reflection of his acumen, experience, skill and hard work’, as opposed to a ‘passive holding in a business’.
At trial, Her Honour Judge Melissa Clarke, sitting as a High Court Judge, found in favour of the defendant, assessing the claim for loss of earnings in the ‘lost years’ at nil.
Firstly, it was accepted that the principles of Adsett applied, with HHJ Clarke describing claimant counsel’s interpretation as a ‘misunderstanding’:
‘In my judgment it is clear that McCullough J is ignoring income which survives death when approaching what he sets out as a two-stage process. The first step is calculating the surplus, i.e. the earnings or earning capacity which are lost on death less the living expenses which would have been spent in life but are ‘saved’ in death. However, he necessarily takes the income which survives death into account in the second stage of his reasoning, i.e. whether there is an overall loss in the lost years when the income which survives death is taken into account’.
Secondly, on the balance of probabilities, it was reasoned that the claimant’s share dividend income was likely to survive his death and thirdly, that the share dividend income was greater than the claimant’s current ‘surplus’ director salary, i.e. there was no shortfall (actually a windfall of around £14,500). Fourthly and finally, following Adsett, it was evaluated that the claimant would sustain no compensatable loss in the ‘lost years’.
What Was The Appropriate Level Of Award For PSLA?
HHJ Clarke identified a non-exhaustive list of relevant factors to consider when determining an appropriate general damages award, afforded by Chapter 6(C)(a) of the Judicial College (JC) Guidelines (14th edition):
‘... the duration of pain and suffering, the extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, the extent to which the tumour has spread and other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health, extent of life loss and concern for spouse and/or children following death’.
Counsel for the claimant emphasised the following features of the claimant’s claim which would have the most considerable impact on PSLA:
- The claimant’s ‘relatively young age of 60’;
- The claimant’s ‘commensurately great loss of life expectancy’ (23.8 years, using Dr. Rudd’s calculation) and his awareness of reduced life expectancy – per s.1(b) of the Administration of Justice Act 1982; and
- The claimant’s ‘long period of his [continuing] illness, the intensity of his [continued] suffering to date and the extent of his [continuing] treatment’.
These features were assessed against ‘comparable’ Court decisions on quantum in mesothelioma claims:
The claimant’s Schedule of Loss sought £95,000, whereas the defendant’s Counter-Schedule provided for £80,000.
On this issue, the sitting High Court judge preferred the claimant’s analysis, awarding £95,000 as pleaded.
Full text judgment can be accessed here.