Damages

Personal injuries - mesothelioma - negligence action against owner of factory where asbestos exposure occurred - deductibility of statutory compensation for mesothelioma Ballantine v Newalls Insulation Co Ltd : CA (Aldous, Robert Walker and Buxton LJJ): 15 June 2000

The claimant was exposed to asbestos in the vicinity of the defendants' premises while in his teens.

He developed malignant mesothelioma in 1997 and in March 1998 claimed compensation under the Pneumoconiosis etc (Workers' Compensation) Act 1979.

He brought an action for damages against the defendants in May 1998 and died in July 1998.

The action was continued by his widow and executrix.

The defendants admitted liability.

The parties agreed damages.

The only issue was whether the statutory compensation payment was to be deducted in whole or in part or at all from the award of damages.The trial judge set off compensation against the heads of loss for nursing care and loss of earnings, but not for pain and suffering and loss of amenity.

The defendants appealed, claiming that the entire compensation payment should be deducted.

By a respondent's notice the claimant submitted that no part of the payment should be deducted.Ronald Walker QC and Jeremy Freedman (instructed by Jacksons, Stockton on Tees) for the defendants.

David Allan QC (instructed by John Pickering & Partners, Oldham) for the claimant.Held, allowing the appeal, that compensation under the 1979 Act was awarded to compensate for the injury as a whole and all aspects of it, including pain and suffering, in the circumstances in which the Act applied; that in principle collateral benefits directly attributable to the injury were deductible to prevent double recovery, subject to certain exceptions none of which were applicable; that as a matter of principle the whole of the 1979 Act payment should be deducted from the damages.