Retirement Claims: an age old problem

It is now common for mesothelioma defendants to hear claimants say that they would have worked beyond normal state pension age. This can markedly increase damages. The evidential basis of such claims can be nothing more than a single line in the sufferer's witness statement. Some claims are advanced by dependants even where that basic evidence is missing. It appears to have become a standard approach.

Traditionally, state retirement for men occurred at 65 and for women at 60. Now, there is no fixed age for retirement at all. Entitlement to a state pension varies according to date of birth (the DWP's website carries a state pension age calculator). At best the state pension age can only be an indirect guide to a likely date of retirement.

The data

In 2011 the Office for National Statistics published data on the employment rates of those aged 65 and over. In 2008, the figure for men was 10.7%. By 2011 it had risen to 11.9%. Women are less likely to be in employment beyond the age of 65 (given their lower pensionable age). Even there, the figures suggest a changing landscape - with 4.7% being in employment in 2008 and 6.3% in 2011. These data do lend some statistical support to a trend towards later working.

Comment

Assertions and statistics are all very well. What a court must ask in each case however, is what this given individual is likely to have done. It is for the claimant to prove that he or she would have worked beyond state pension age. The weight of the evidence in the witness statement is a start.

In living claims, defendants can also make use of the Part 34 procedure to cross examine a claimant at an early stage. There is no requirement in Part 34, or the mesothelioma practice direction, for deposition to be confined to issues of primary liability.

There are a number of things to consider when looking at an individual’s claim:

(i) Are there any comorbid conditions that would influence their retirement age?

The arguments may be obvious but even seemingly trivial entries regarding alcohol intake and weight gain may build a picture of an unhealthy life style which might reduce the person’s ability to work. The typical mesothelioma sufferer is also more likely to be from a socio-economic group with lower life expectancy, but also lower healthy life expectancy - a key distinction when assessing earning capacity.

(ii) Financial necessity is often cited as the spur for a claimant's intention to carry on working.

It may be necessary to drill down into the detail.

• Does the claimant have a mortgage, and, if so, when will it be paid?
• What will the net household income be pre and post retirement?
• Can it be argued that part-time employment would be a more likely option for the claimant?
• Does the sufferer’s spouse work?

(iii) The type of work carried out by the sufferer has also to be considered.

Plainly those in manual trades are more susceptible to 'wear and tear' issues making retirement at state pension age more likely.

The likelihood of those involved in manual employment working beyond 65 is limited. According to UCATT, the construction union, the median retirement age of the construction worker is between 60 and 62. B&CE, the largest pension provider to the construction industry, advises that the average retirement age of its members is 62. The European Working Conditions Observatory (EWCO) records the average retirement age of the construction worker across Europe as a whole as 57.

(iv) Medical experts will usually make a comment on the viability of the claimant working but for their compensable condition.

In many cases, the claimant’s own expert finds it difficult to support the claim advanced.

(v) Investigate the person’s employer.

Would suitable work have been made available? Do they have other employees of similar age? There is no property in a witness. Enquiries can properly be made without the need to go through the claimant’s solicitor and, in some cases, it may be appropriate to make an application for non- party disclosure against an employer.

(vi) Where private pensions have been set up, the nominated retirement date can be of assistance - especially where it coincides with state pension age.

Inevitably we will see cases where the claimant has a robust, well argued and well documented case for seeking a higher award. Equally there is nothing to stop a defendant from arguing for an earlier date of retirement if the evidence is right. The devil is in the evidential detail.