Unless one has been in a life-threatening situation, it is impossible to grasp the concept of imminent mortality. When young, human beings are blinded from seeing the horizon of their lives by the light of expectation.

At my age, a sprightly 52, the line on the horizon is more clear and a little thicker but remains distant, or so I perceive it. We cannot truly contemplate our lives being shortened by a single day. However, we expect judges and the lawyers who ­present before them to attempt to value such a ­certain limitation of life expectancy in mesothelioma cases by reference to a system of recompense which, at one extreme, commences with a cut finger.

Dennis Ball was exposed to asbestos as a miner between 1967 and 1985. He developed symptoms of the fatal cancer, mesothelioma, in January 2011 and his life expectancy at trial in February 2012 had been reduced from 2.9 years to 3 months. He was 92 and living alone in a flat but, aside from ‘meals on wheels’, was proud of his independence and in reasonably good health.

Following the onset of symptoms his condition deteriorated and he ended up in a nursing home. He still clung on to his independence, demonstrated by the sad fact that he continued to pay the rent on his flat hoping that one day he would return. In the year to trial, Mr Ball had undergone radical surgery in the form of a thoracoscopy, had a pleural aspiration, undergone biopsies and was taking oramorph for the pain. He was, though, a stoical and private man who, typically for someone of his generation, did not bleat about his condition. Nonetheless, her ladyship held that he would have had ‘a real fear about the ordeal that may be in store for him’.

Fortunately, Mr Ball did not have to attend at the High Court to hear the arguments on the value of his damages for pain, suffering and loss of amenity (Ball v the Secretary of State for Energy and Climate Change EWHC 145 [QB]). His evidence was adduced in writing. He also had the good fortune to be represented by counsel, Ivan Bowley, and to have his case heard by a judge very experienced in asbestos claims.

Mrs Justice Swift produced a judgment which summarised accurately the history of recent mesothelioma cases dealing solely with the quantification of this head of damages. She contrasted the awards with the guidance provided within the recent editions of the JSB Guidelines (for which, in the 10th edition, the bracket of damages is £35,000-£83,750). The only indication within the guidelines as to where within the brackets an individual case is placed is by the type of mesothelioma, whether of the pleura or peritoneum, and by reference to ‘the duration of pain and suffering’. Having reviewed the authorities, her ladyship felt that the duration of the pain was but one factor and that there are ‘a large number of factors other than the duration of symptoms that will (or should) affect the level of award made in an individual case’.

These include:In light of previous authorities and the commentary within the JSB Guidelines, it is important to note that her ladyship felt that there was a tendency within the guidelines to ‘pigeonhole’ claims by reference to the duration of symptoms alone and that this individual factor should not be ‘determinative’ of the level of award. She also held that unless there is ‘an unusual feature’ then the ‘norm’ is for an award within the brackets of the JSB Guidelines.

  • The extent and effects of invasive investigations, for example, radical surgery, chemotherapy and radiotherapy.
  • The type of mesothelioma and whether the tumour spreads to encase other organs of the body, for example the lungs.
  • The level of symptoms, though accepting that even if the deceased’s death was peaceful there will still have been a fear of a painful and distressing end to life.
  • The previous state of health and level of activity of the claimant.
  • The duration of symptoms.

In relation to the claimant, his age was unusual. None of the decisions which her ladyship had to review involved a claimant who was beyond 80. An award of £50,000 was made.

I have argued that it reflects badly on society that a dying man should have to be involved in litigation to determine the level of damages that his condition merits. Surely, in a civil justice system which is contemplating the introduction of more tariffs and fixed-costs regimes, agreement could be reached on a single figure for pain, suffering and loss of amenity for all victims of mesothelioma? Playwright Arthur Miller once said ‘maybe all one can do is hope to end up with the right regrets’.

One hopes that Mr Ball does not regret the fact that, in pursuing his proper right to redress arising out of his negligent exposure to asbestos fibres, the last months of his life have been overshadowed by his involvement in the civil process.

Simon Allen, Russell Jones & Walker