Ten Years on: Why Harris v The Advocate General for the Ministry of Defence Still Defines Pleural Plaques Damages in Scotland

Ten years ago this year, the Court of Session handed down its decision in Harris v The Advocate General for the Ministry of Defence[2016] CSOH 49. Harris was only the second reported pleural plaques case since the Damages (Asbestos-related Conditions) (Scotland) Act 2009 made plaques an actionable harm in Scotland. It remains the last reported decision dealing with the quantification of pleural plaques claims in Scotland.

Pleural plaques are a scarring of the lungs but cause no symptoms. The 2009 Act made pleural plaques an actionable harm in Scotland after the House of Lords ruled in Rothwell v Chemical & Insulating Co Ltd and another [2008] 1 AC 281 that asymptomatic conditions did not give rise to a claim in damages. This means that, in Scotland (unlike in England & Wales), claims can be made for pleural plaques caused by negligent exposure to asbestos.

The first decision dealing with the value of a provisional pleural plaques claim under the 2009 Act was W v Advocate General for Scotland [2015] CSOH 111. In that case, the court dealt with the appropriate range of provisional damages awards for a person with pleural plaques, with associated moderate anxiety.

Provisional Settlements

Normally, personal injury claims in Scotland are settled on a "once-and-for-all" basis, and the door is closed to any future claims for losses arising out of the same cause of action. However, if a person has a proved or admitted risk of developing a serious disease or suffering some serious deterioration in his or her physical or mental condition, then they can ask for a provisional settlement. A provisional settlement leaves the door open for the injured person to bring a further claim (or claims) for damages if the specific risks proved or admitted eventuate. Provisional settlements are governed by section 12 of the Administration of Justice Act 1982.

The availability of a provisional settlement is conditional on the defender being a public authority or corporation or being insured or otherwise indemnified in respect of the claim. However, as pleural plaques are evidence that a person was exposed to asbestos, and as past exposure carries a lifelong risk of developing severe or life-threatening illnesses like mesothelioma, some pursuers do opt to seek a provisional settlement.

In W, when deciding on the appropriate award level, the court confirmed a person’s age, and therefore life expectancy, was not the only relevant variable in assessing the value of a pleural plaques claim. But if that person suffered greater apprehension, then the damages must be increased to reflect that. Provisional damages require the court to consider solatium (pain and suffering) for pleural plaques only.

Full and Final Settlements – A Harris Calculation

For the pursuers with pleural plaques who opt to settle their claim on a full and final basis, instead of just being awarded damages for their current condition, the pursuer is awarded an uplift on top of their provisional award in recognition of the risk of a more serious condition developing.

How precisely that full and final damages award should be calculated was dealt with by the court a decade ago in Harris. Mr Harris had worked for the Ministry of Defence as a boilermaker from 1961 to 1977, was exposed to asbestos, and developed pleural plaques. Liability was admitted. The medical evidence agreed between the parties put Mr Harris at a 5% increased risk of developing mesothelioma and a 0.2% risk of developing asbestos-related lung cancer.

The judge, Lord Boyd. adopted a two-stage approach, based on the method proposed by Smith LJ in her dissenting judgment in Rothwell. First, it fixed a solatium (pain and suffering) figure of £7,500 for the plaques diagnosis itself, drawing on the bracket set only months earlier in W. Second, it added a sum for the future risk of a more serious condition: the two percentage risks were combined to 5.2% and applied to the value of the claim if that risk eventuated; a multiplier was then applied to the relevant pecuniary loss heads, on the assumption that any cancer would develop about halfway through the pursuer's remaining life expectancy, and the sum was discounted for early receipt, producing £7,316. Lord Boyd preferred that approach over the defender’s argument for a single global award (based on plaques awards prior to Rothwell), and awarded £14,816, exclusive of interest.

That method of carrying out a full and final valuation of a plaques claim is still the method followed by practitioners and is referred to colloquially as a "Harris calculation”.

What evidence is required?

For the calculation to be carried out, evidence is required about the pursuer’s anticipated life expectancy, their risk of developing other asbestos-related conditions (both what those conditions are and what the relevant percentage risk of each condition is), along with details about the pursuer’s income or what income they might expect to be in receipt of by the time of the assumed date of death (for the purposes of the calculation, this is the mid-point of their life expectancy). The multipliers applied for percentage risk and life expectancy can greatly affect the value of the ‘future risk’ part of a Harris calculation.

Position Today

So where does that leave us today? A decade on, we still have only two decisions guiding the value of a pleural plaques settlement – W and Harris – and no further reported case has revisited or refined the two-stage methodology in Harris in the intervening years, so it continues to be applied largely as Lord Boyd applied it.

In W, Lord Pentland set a bracket for asymptomatic pleural plaques with associated moderate anxiety, with an upper figure of £9,000, a midpoint of £7,250, and a lower figure of £5,500, all in 2015 terms. Harris, in 2016, was assessed at £7,500 for a 70-year-old pursuer with a normal life expectancy who was not particularly anxious. Updated to today's values using the Retail Price Index, W's upper, midpoint, and lower figures become approximately £14,310, £11,527.50, and £8,745 respectively, and Harris becomes approximately £11,775.

These cases continue to inform appropriate valuations depending on the age of the pursuer, their residual life expectancy, and their level of anxiety. If you have a younger pursuer with a normal life expectancy, you expect their claim could come in higher than the figures in W and Harris. If you have a much older pursuer, or any pursuer with a shortened life expectancy, then that would suggest their award level would be lower.