Awarding mesothelioma compensation can often appear to a victim of asbestos exposure and their family as hugely complex and confusing. In some instances, a defendant will dispute specific details or argue a technicality in a bid to deny or reduce their liability.

As a result, a mesothelioma claim can go to the Appeal court on one or more occasions. More distressingly still for the family, the victim can often pass away during the process and it is left to the spouse or a family member to try and continue seeking justice and pursuing the claim with their asbestosis lawyers.

In a recent case, a female victim of mesothelioma tragically died while still in her mid 40s just two years after she left her place of work, and which was claimed to be the cause of her fatal incurable cancer during her ten years of employment. The case was not only unusual because of the comparatively young age of the deceased – most victims only start to suffer asbestosis symptoms after 15 to 50 years or more and tend to be aged 60 and above – but also because of a dispute over when the husband’s claim for a “loss of dependency” should be first calculated.

Calculating a financial loss to be incurred in the future

In a personal injuries claim, the two components generally considered when calculating a financial loss are based upon those incurred in the past and those determined to be incurred in the future. Until fairly recently, the standard procedure of the courts was to assess for a lump sum needed to compensate the claimant for the future loss. A claim for ‘loss of dependency’ is usually made by any individual who was dependent on the deceased for their financial wellbeing, which is usually the husband or wife and the immediate family who are entitled to any loss of dependency. The judge needs to see the details of the family income and of the deceased at the time of the death, and any outgoings of the deceased.

In a case which involves a substantial loss of earnings claim, the defendant is expected to robustly challenge the basis on which the loss of earnings is calculated. A calculation usually begins by evaluating the annual net loss the claimant will incur in the future known as the “multiplicand” by applying the annual loss of earnings, which is then increased by a “multiplier”. The appropriate multiplier – determined by actuarial tables known as the “Ogden Tables” – is based upon the number of years between the date of the settlement and the date when the loss ceases. In a claim for future loss of earnings, this may be the date when the claimant would have retired.

Dispute over the multiplier date

In the case of the middle aged female victim, an annual figure was agreed for the loss of income and services to the family, but there was a dispute over the number of years by which it should be multiplied. The husband’s lawyers claimed the figure should be calculated from the date of the trial, as opposed to the date of death, which was set by the judge at the original hearing. The view expressed by the judges present at the Supreme Court appeal was that a loss of dependency calculated from the date of death would mean that the claimant would receive less compensation than if the calculation started from the trial settlement.

The judge also pointed to the recent changes in how awards may be made. Previously, the only option available to a judge was to award damages for future loss with a lump sum calculated using the multiplicand and multiplier approach. Now the court can order the whole or part of the damages to be made in period payments, and adjusted to account for inflation.

The good news for the husband is that he was able to see his original compensation awarded from the original hearing increased by nearly 9 per cent to a total just shy of £648,000.