Valuing claims for living asbestos claimants with a shortened life expectancy

A recent quantum decision of the High Court provides important guidance on the valuation of asbestos claims brought by living claimants with a shortened life expectancy, particularly in relation to lost years claims and care and assistance. 

Quantum judgments in mesothelioma cases are rare, and this decision relating to a case brought by Irwin Mitchell will be of interest to practitioners acting for both claimants and defendants.

Norman Pugh v Secretary of State for Energy Security and Net Zero

My client Norman Pugh developed pleural mesothelioma following exposure to asbestos during his employment with the former National Coal Board. Liability was admitted and judgment entered by consent. Proceedings continued on quantum only.

It is unusual that quantum assessments proceed in living mesothelioma claims; these claims are often settled during the claimant’s lifetime, to ensuring certainty of compensation and appropriate provision for future needs.

The Defendant raised five principal areas of dispute:

1.    The validity and valuation of the lost years claim;
2.    General damages for pain, suffering and loss of amenity (“PSLA”);
3.    The valuation of past and future care and assistance;
4.    Whether any claim for future non-NHS treatment should be adjourned; and
5.    Expenses, in particular the costs of property adaptations.

Expert evidence was provided by Dr R M Rudd (respiratory medicine), Professor P Szlosarek (oncology) and Ms Tracey Amphlett (care). The defendant relied on care evidence from Ms J Gowans. Medical evidence was uncontroverted. Sadly, Mr Pugh was too unwell to attend trial, and his evidence was admitted as hearsay, supplemented by compelling evidence from his daughter.

The lost years claim: Validity in principle

The defendant contended that a lost years claim could only be brought where the claimant had financial dependants, and only to the extent of that dependency.

HHJ Dunne rejected that argument. Relying on Pickett v British Rail Engineering Ltd [1980] AC 136, he confirmed that, for adult claimants, the lost years claim is a personal entitlement, recoverable irrespective of the existence of dependants. The loss is the claimant’s own lost earning capacity during the years by which life expectancy has been curtailed.

Although this judgment pre-dated the Supreme Court’s decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust, this position has since been reinforced, with confirmation that child claimants may also recover lost years earnings, subject to the usual evidential burden.

Valuation of the lost years claim

In principle, lost years earnings are recoverable net of living expenses. Traditionally, living expenses have often been assessed at around 50% of net income, although the courts have recognised that this is not an immutable figure and may be departed from where the evidence supports doing so.

This case provided such an example. Mr Pugh was demonstrably frugal, having drawn his maximum pension entitlement and lived well within his means. Detailed analysis of five years of bank statements showed that his discretionary expenditure amounted to approximately 37% of his net annual income, with the remainder saved. That analysis was not challenged.

The defendant argued either that the claim should fail entirely, or alternatively that a higher deduction should apply on the basis that Mr Pugh might have spent more on himself as he aged, particularly on care.

HHJ Dunne accepted the claimant’s approach and awarded the lost years claim with a 37% deduction, reflecting actual expenditure. This appears to be the first reported decision in which such a tailored deduction has been expressly adjudicated and awarded, opening the door to more nuanced assessments of the multiplicand where supported by robust evidence.

Pain, suffering and loss of amenity

Applying the Judicial College Guidelines (17th edition), adjusted for inflation to December 2025, the relevant bracket was £83,660 to £150,440.

Mr Pugh was diagnosed in September 2023 with a projected life expectancy to August 2026. He had undergone biopsies and prolonged immunotherapy, which ultimately had to be discontinued due to side effects. His independence and previously active lifestyle were significantly curtailed, and he was forced to move in with his daughter to receive care. His life expectancy was reduced by approximately 8.3 years.

Taking these factors into account, HHJ Dunne awarded £128,180, placing the award around two thirds of the way up the bracket. While the impact on Mr Pugh’s lifestyle was significant, the award reflected that the disease was pleural rather than peritoneal mesothelioma, and that life expectancy, though shortened, was not as limited as in some reported cases.

Care and assistance

A central issue in relation to care was the appropriate rate used to value gratuitous familial care.

The defendant argued for the basic hourly rate and a reduced number of hours from those set out in the care evidence and the Schedule of Loss, asserting that care was provided within the daughter’s home and therefore caused no additional inconvenience.

The court rejected that analysis. HHJ Dunne accepted the daughter’s oral evidence as to the practical and emotional impact of caring for her father, including early starts, evening and overnight care, and weekend support. The fact that care was provided outside conventional working hours justified the application of the daily aggregate rate.

The Judge also accepted in full the hours assessed by Ms Amphlett and awarded £29,561 for past care.

In relation to future care, the court accepted evidence that Mr Pugh would require professional night care in the final weeks of life. Of particular significance was Mr Pugh’s stated wish not to receive intimate personal care from family members, coupled with evidence as to the unreliability of statutory care provision at the end of life. HHJ Dunne awarded the future care claim in full, albeit over a shorter period due to recent clinical decline, totalling £46,986.

This judgment provides strong support for the proper valuation of familial care in mesothelioma claims and recognises the significant contribution made by unpaid carers, often at considerable personal cost.

Future treatment: Adjournment

Medical evidence indicated that second line systemic therapies might be offered in the future, including treatments not available on the NHS. The Claimant sought an adjournment of this head of loss, arguing that it could not be meaningfully quantified at the time of trial.

HHJ Dunne approved the adjournment. Building on Howard v Imperial London Hotels Ltd [2019] EWHC 202 (QB), this decision confirms that adjournment is an appropriate and effective mechanism in mesothelioma claims where future non NHS treatment may arise.

Property adaptations

Finally, the court considered the costs incurred in adapting the family home after the households merged. The claimant funded a ground floor extension to provide a bedroom and ensuite, as he could no longer manage stairs.

The defendant suggested that the works enhanced the value of the property but adduced no evidence to support that contention. This was not a Swift v Carpenter type capital expenditure claim. In the absence of evidence of enhancement, the costs were allowed in full.

Expert commentary

This decision provides welcome clarity on several recurring issues in mesothelioma litigation. In particular, it reinforces:
•    The personal nature of the lost years claim, and
•    The importance of evidence based valuation, whether in respect of living expenses or care needs.

The careful and fact specific approach adopted to the care claim may also assist in moving valuations beyond the modest figures historically suggested in case law. The contribution of family carers, and the savings they generate for statutory services, continue to warrant proper judicial recognition.

Find out more about Irwin Mitchell's expertise in supporting people and families affected by exposure to asbestos at our dedicated asbestos-related disease claims section.