Court of Appeal in NI rules on damages in pleural plaque cases

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Court of Appeal in NI rules on damages in pleural plaque cases

Background

This was an appeal by the first Defendant Harland & Wolff from the Judgment of Mr Justice O’Hara, who had previously awarded £10,000 to a widow. Her late husband had been diagnosed with asymptomatic pleural plaques before his death.

The award of £10,000 was the first occasion the Courts had to consider the proper measure of damages for asymptomatic pleural plaques since the Damages (Asbestos Related Conditions) Act (NI) 2011 came into force.

Outcome

On 20 May 2015 the Court of Appeal in Northern Ireland held that the trial judge, Mr Justice O’Hara’s award of £10,000 was not so far outside the permissible range that it should be reduced. However, the Court of Appeal in N.I acknowledged the award was very much at the top end of the scale.

It held that the physical presence of pleural plaques cannot be described as significant on its own. Its significance and thus the amount of compensation will be influenced, by the extent of the anxiety and distress engendered. In the case of a deceased person who was never aware of the condition and who thus suffered no distress the award must be a very modest one. The Court of Appeal reached the conclusion that asymptomatic pleural plaques, on their own, would justify an award in the region of £3,000.

The Court of Appeal placed its guidance in the context of other awards; stating trivial scarring can attract damages of the order of £1,000 upwards. Mild respiratory conditions (which subject a plaintiff inevitably to some actual discomfort unlike asymptomatic plaques) may attract awards of up £7,500. Smoke inhalation (again generating some discomfort to the plaintiff) generates awards from £5,000 upwards depending on the gravity of the effect on the lungs.

The Judgment made it clear that if a Plaintiff receives a diagnosis of pleural plaques, which is properly explained, it will cause, at least initially, considerable distress, anxiety and alarm. Mr Justice Girvan emphasized that it will be in the period immediately after the diagnosis that the shock anxiety, distress and alarm would be most intensely felt. In the absence of any subsequent medical scares, a Plaintiff should begin to live with the diagnosis and move forward. Save for some evidence of grave psychiatric sequelae, recovery outside the bracket of £5,000 – £15,000 however long the stress or anxiety lingers on would be unlikely.

Implications of Decision

The Judgement should pave the way for swifter settlement. It remains to be seen how the Judgment will be interpreted by Plaintiffs; however as both the anxiety and distress limbs of any pleural plaques claim have now had such significance placed upon them by the Appeal Court; they are likely to be investigated and pleaded from the outset; and an increasing used of psychiatric expert evidence.

This decision will not only set a benchmark for cases in Northern Ireland but also in Scotland, where the Court of Session had recently heard evidence in a Scottish claim for damages for pleural plaques. Liability is admitted and only quantum is in dispute. The decision in that case has been delayed pending the outcome of the McCauley Court of Appeal decision since it may impact on the eventual award in Scotland.

Source: McKinty Wright

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