Hope for ageing mesothelioma sufferers after landmark court ruling

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Hope for ageing mesothelioma sufferers after landmark court ruling

13th February 2012

Mesothelioma sufferers in their 80s and 90s have been given hope that they could still be entitled to substantial compensation following a landmark court ruling.

The Hon Mrs Justice Swift DBE handed down a judgment at the Royal Courts of Justice today (Friday) awarding £50,000 compensation in respect of the pain and suffering endured by a 92-year-old man who developed the asbestos-related cancer following his work for British Coal. “None of the cases to which I have been referred involve a claimant in his eighties, let alone his nineties,” said Mrs Justice Swift. “The issue is what effect this should have on the award of damages.”

The successful case of Dennis Ball now paves the way for further elderly sufferers to receive settlements which reflect the pain and distress the disease causes, regardless of their age.

Specialist industrial disease lawyer Lesley Mynett, a partner with Fentons Solicitors LLP who represents Mr Ball, explained that as mesothelioma cases usually settled before court hearings, there was little in the way of legal precedent to assist older victims when assessing the level of compensation attributed to ‘pain and suffering’.

“The Judicial Studies Board (JSB) guidelines used by judges to assist in determining compensation in these cases have changed significantly over recent years,” said Miss Mynett. “The lower bracket of recommended damages has been reduced in order to allow a smaller award in cases where the time the victim actually lives and suffers with their symptoms is less than the average - which is usually between 12 and 18 months. But Mrs Justice Swift’s ruling today makes clear that regardless of the amount of time the victim lives following their diagnosis, they should be appropriately compensated for the pain and suffering they endure.”

Miss Mynett said the defendants in the case, the Secretary of State for Energy and Climate Change in lieu of the now defunct British Coal, had argued that because Mr Ball was 92 and had only a short life expectancy, the amount of compensation he received should be reduced accordingly.

“Only weeks before the hearing, they valued Mr Ball’s compensation for pain and suffering at just £20,000, which is well below the lowest guideline amount of £35,000,” she said. “They argued that because of his age and the fact that he had only a few months to live, he in some way did not warrant the same level of damages as a younger person or someone who could expect to live longer.

“We feel it is wrong that the JSB bracket was lowered at all, done as it was to accommodate a very few ‘atypical’ mesothelioma cases, rather than reflecting the normal or average victim,” said Miss Mynett. “So when Mrs Justice Swift saw fit to express her concern at the way the guidelines have placed greater emphasis on the duration of symptoms in determining damages, we were delighted.

“Regardless of his age, Mr Ball contracted this insidious disease through no fault of his own,” she said. “All he did was work diligently.”

Mr Ball, of Beeston, Nottingham, joined the Navy at 15 and spent 10 years serving – three of those as a submariner. “After he was invalided out of the Navy, he joined the Army, serving between 1945 and 1947,” said Miss Mynett. “He spent most of that time in Germany, where he saw the Berlin wall being constructed.

“In 1964 he began working for British Coal, spending two years underground at the face of Sutton Colliery, before spending the next 19 years working at Moor Green, where he was exposed to asbestos.”

Miss Mynett said at the time of the onset of symptoms in January last year, Mr Ball was living alone in a flat and receiving some assistance with his shopping, together with ‘meals on wheels’. However since his illness worsened he has moved to a nursing home, where he can receive the care he needs.

In her written judgment, Mrs Justice Swift said: “As the authors of the JSB Guidelines have pointed out more than once, there are relatively few reported awards by judges in mesothelioma cases. Such cases frequently settle.

“It is important to remember, however, that a person of any age who is informed that his or her life will be cut short by the effect of a harmful substance to which he or she has been wrongfully exposed is likely to suffer a good deal of distress.

“Even if a deceased’s death has in the event been relatively peaceful, he or she will have been fearful since being told of the diagnosis of mesothelioma that a painful and distressing end lies in store.”

Speaking of Mr Ball, Mrs Justice Swift said: “Before the onset of his illness, his activities were restricted by his age and state of health. His illness has served to increase those restrictions to a small but significant extent. Importantly, however, the onset of illness forced the claimant to leave his home and thus to lose his independence.

“Thus, despite his age, his disease has had a devastating effect on his life.

“I consider that the appropriate award of damages lies below the lower level of the bracket of awards identified in previous editions of the JSB Guidelines, but significantly above the lower level which appears in the latest edition,” said Mrs Justice Swift. “In all the circumstances, I consider that the appropriate award of damages is £50,000.”

Mrs Justice Swift’s ruling for pain and suffering damages took Mr Ball’s total compensation claim to £73,890.16. Speaking after the judgment, Miss Mynett said Mr Ball was pleased to learn that his case might help other older mesothelioma victims secure the appropriate compensation they were entitled to.

“The bar for pain and suffering damages has clearly been set too low for mesothelioma cases,” she said. “Mrs Justice Swift’s ruling can now be used to provide other sufferers with the ammunition they need in their fight for the appropriate and entirely justified level of compensation.”

How can Fentons Solicitors help?
Fentons has a specialist department experienced in handling claims for victims of asbestos-related industrial diseases including mesotheliomoa.

If you think that you have a case or require further information contact Fentons on 0800 0191 297 or fill in the online claims questionnaire.

Read more - BBC