One cannot possibly assess the effect of receiving a diagnosis of cancer. However, with many forms of the illness there is a degree of hope of ‘beating’ the condition.
Mesothelioma, unfortunately, is not one of those. The condition is a rare form of cancer that develops from the protective lining that covers many of the body’s internal organs, the mesothelium. It is often caused by exposure to asbestos.
Life expectancy is, in the main, between six and 18 months. The sufferer knows that the condition will prove fatal and that life sentence is severely limited.
The JSB Guidelines, 9th Edition establishes a range for damages for mesothelioma from £52,500 to £81,500. To help practitioners in placing a specific case within that bracket, the following description is provided: ‘The duration of pain and suffering accounts for variations within the bracket. For periods of up to 18 months, awards in the bottom half of the bracket may be appropriate; for longer periods of four years or more, an award at the top end.’
In the past three years the issue of general damages in these cases has troubled the courts on several occasions. The guidelines have been taken to heart by some defendants in trying to box damages for pain, suffering and loss of amenity (PSLA) by the rather arbitrary and simplistic factor of the duration of pain before death. There have been awards of £25,000 for six weeks of pain and suffering, £35,000 for a period of five to six months, £55,000 for two to three months of symptoms and £72,000 for 17 months of symptoms 1.
In recent months there have been two further cases. In Streets v Esso Petroleum Company Ltd  QBD unreported, the claimant, who was 60, suffered pain for four months before death. He underwent pleurodesis, biopsies and lung drainage. Wilkinson J awarded £65,000 for pain, suffering and loss of amenity.
In Fleet1, the deceased suffered with symptoms for 22 months. He also underwent pleurodesis, drainage of fluid, radiotherapy, medication for anxiety and morphine for the pain. He had the added problem of the tumour affecting the brachial plexus, creating pain in his arm which occasionally made him cry.
Quality of lifeMcKay J referred to the ‘tendency’ to assess general damages, principally, by reference to the duration of the fatal symptoms, but held that the ‘critical factor’ in the assessment ought to be ‘the quality of life over this time’. He awarded general damages at £77,500.
His lordship’s view echoes that of Master Whittaker, who stated in another case: ‘One also has to bear in mind that, typically, the worse symptoms of pain, suffering and loss of amenity occur in the last weeks and days of the disease’s progress and that the death, particularly where the pain is not well controlled, is a horrible one.’
The assessment of general damages for a condition which the claimant knows will imminently end his life is fraught with problems. There is a clear danger of demonstrating a remarkable degree of insensitivity to the plight of the sufferer.
Calibrating the scale of damages by reference simply to the duration of pain, some of which, in the early stages, may be relatively mild, is wholly unsatisfactory. The mesothelioma sufferer will invariably have a ‘horrible’ end to their life. The mental anguish cannot be calculated or understood. While accepting that no amount of money can possibly compensate for the knowledge of one’s imminent death, it would be far better to award a single figure for PSLA of, say, £100,000 to all sufferers irrespective of their life expectancy and/or the medical investigations that they have to undergo.
Putting a dying person, or their bereaved spouse, into court to listen to lawyers debate the extent of the sufferer’s pain is improper and reflects badly on the law and our society.
1 Gallagher v Vintners Armstrong Limited and Scshsegl Realisations Limited; Cameron v Vintners Defence Systems Limited  EWHC 2267; Smith v Bolton Copper Limited Unreported July 10, 2007 QBD; Beesley v New Century Group Limited  (EWHC) 3033 (QB); Fleet (widow and executrix of the estate of Michael Fleet dec’d) v Roy Fleet  EWCA 3166 QB: McKay J
Simon Allen is managing partner and head of personal injury at the Sheffield office of Russell Jones & Walker