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Judge raises bar for mesothelioma compensation for elderly sufferers

expert witness asbestos fibresElderly victims of mesothelioma, the cancer caused by exposure to asbestos, could be entitled to much more substantial compensation following a landmark ruling on damages for pain and suffering.

In the High Court, on 10 February, Mrs Justice Swift awarded 92-year-old Dennis Ball £50,000 compensation for pain and suffering after he developed asbestos-related cancer following his work for the National Coal Board and British Coal Corporation, bringing his total compensation to £73,890.

The £50,000 award is considerably higher than the £35,000 figure recommended in the latest Judicial Studies Board (JSB) guidelines for cases where the duration of the pain and suffering is considered to be relatively short.

In her written judgment, reported in the Law Society Gazette, Mrs Justice Swift said: “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.”

The ruling makes it 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. It paves the way for other elderly sufferers to receive settlements which reflect the pain and distress the disease causes, regardless of their age.

Lesley Mynett, a partner at Fentons and an expert in industrial disease litigation, represented Mr Ball. She said: “The bar for pain and suffering damages has clearly been set too low for mesothelioma cases.”

She explained that, as mesothelioma cases usually settle 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. She said the defendant in the case, the Secretary of State for Energy and Climate Change in lieu of the 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.

“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.”

However, Mrs Justice Swift is reported in the Nottingham Post as stating: “The importance that he attached to his independent way of life is clear. It is exemplified by the fact that, even now, he continues to pay rent on his flat, plainly clinging to the hope that he may one day be able to return there.

“Thus, despite his age, his disease has had a devastating effect on his life. It is clear from the medical records that he has been well aware of the diagnosis and prognosis for more than five months now.

“He is a private man and has been unwilling to talk about his prognosis; however, there is no reason to suppose that he is not experiencing a real fear about the ordeal that may be in store for him, together with distress at the knowledge of his imminent death and its cause.

“Mr Ball’s age means that he does not have the distress of knowing that many years, even decades, of his life have been denied him. Importantly, however, the onset of illness forced him to leave his home and thus to lose his independence.”

Last Updated on Monday, 27 February 2012 19:13