Insurers may be able to reduce damages awarded in asbestosis-related claims
Insurers with asbestos-related claims should check if the claimant smoked, as they may be able to reduce any damages awarded. This was the outcome in Horsley v (1) Cascade Insulation Services Ltd (2) C&D (Insulation Operations) Ltd. Insurers should also check that the evidence stacks up, as any discrepancies could lead to further reductions in the level of award.
Mr Horsley (H) developed asbestosis after being exposed to asbestos when he worked for both defendants. His asbestosis and pleural thickening could develop into mesothelioma (5%) or lung cancer (24%). H sought a damages award of just under £400,000. Shortly before trial, he changed his evidence, saying he had planned to work until he was 70. He also changed his loss of earnings claim and made new contentions unsupported by evidence.
H was managing director of two companies, one in Dubai, the other in England. His disclosure in relation to his loss of earnings claim was late and limited. The judge queried the evidence regarding the Dubai company. He noted that H’s credibility would be undermined if the documents produced were bogus. H had also failed to fill out forms regarding his health; his statement that a doctor had advised him that smoking offered some benefit was implausible, as was his contention that he would not be liable to tax. As a result, the judge treated H's evidence with caution. The judge agreed H should be entitled to recover any losses in relation to future salary, excluding dividends. He rejected the suggestion that H would work until he was 70.
Doubts about H’s evidence meant that, even on a full liability basis, his damages were far below the sums he claimed. The judge deducted 15% for the risk that H’s smoking would make him unfit for work, then reduced his damages by 20% for contributory negligence due to smoking. H was awarded £45,000 in respect of general damages, as part of a total of just over £78,000.
The case highlights the court's caution where there are discrepancies in evidence, and when changes are made to facts.
Paula Jefferson is a partner, and Barbara Goddard, an associate, in the injury risk group at national law firm Beachcroft LLP