The case of Ball v National Coal Board and British Coal Corporation have opened the way to fairer compensation to elderly victims of asbestos exposure.

The case involved a 92 year old former employee of the two Defendants who brought a claim for compensation following a diagnosis of mesothelioma.  In cases like this involving asbestos diseases there is always an award for the pain and suffering caused by the illness.  This amount is influenced by a set of guidelines issued by the Judicial Studies Board or JSB.  For many years claimant solicitors and indeed claimants themselves have pointed out the inadequacy of the amount set down, particularly those involving compensating mesothelioma and lung cancer sufferers.  This is currently £35,000 to £83,750.

The Defendants’, represented by the Secretary of State for Energy and Climate Change, tried to argue that, as Mr Ball was 92 he had only a short life expectancy in any event.  As a consequence the award should automatically be lower.  To paraphrase they were submitting that the older you were the less you should receive.

The judge, Mrs Justice Swift sitting in the High Court decided that the JSB guideline starting point of £35,000 for a short period of pain and suffering was too low.  In her written judgment she said, “Even if a deceased’s death has in the event been relatively peaceful, he or she will have been fearful since being told of the diagnosis of mesothelioma that a painful and distressing end lies in store.” 

With reference to the JSB guidelines she went on to say, “I consider the appropriate award of damages …. Significantly above the lower level which appears in the latest edition.”  Her decision paves the way for those older sufferers of asbestos disease to potentially obtain a larger amount of compensation regardless of their age and any expected loss of life expectancy, the award being based purely on the pain, distress and suffering caused by the condition.

Plymouth and Bristol-based asbestos-related disease specialist lawyer, Andrew Stinchcombe, has said, “This decision rightly recognises the JSB guidelines emphasis on suffering and not age.  It also removes another barrier, that of old age, to asbestos disease claimants being more adequately compensated for their illnesses.”

Swindon-based asbestos solicitor, Graeme Chisholm, believes, “This is a step in the right direction but those of us who represent those making asbestos compensation claims still feel the bracket is much too small considering the terminal nature of mesothelioma and the fact that it can be extremely painful and distressing.”

It is not known yet if the Defendants in the case plan to appeal.