Asbestos Claims - BC Legal · with the same features as severe plaques, then he called it diffuse pleural thickening, provided it was more than 5 cm wide. Identical shadowing, but

Asbestos Claims:

A Collection of Articles from BC

Disease News (Volume II)

April 2018

Asbestos Claims: A Collection of Articles from BC Disease News

October 2016

1 | P a g e

CONTENTS

PAGE 3

Introduction

PAGE 4

Pleural Thickening: The Importance of Blunting of One or More of the Costophrenic Angles of the Lung

(BCDN Edition 106)

PAGE 7

Fatal Damages and The Application Of The Ogden Tables: Multipliers For Future Dependency Must Be

Assessed As At The Date of Trial And Not Death (BCDN Edition 130)

PAGE 9

Fatal Damages and The Application Of The Ogden Tables: The Impact of Knauer In Fatal Disease Claims

(BCDN Edition 131)

PAGE 14

Low Exposure Mesothelioma Judgment: Case Comment on Smith v Portswood House Ltd (BCDN Edition

138)

PAGE 15

S.63 Factories Act 1961: The Statutory Interpretation of ‘Substantial Quantity of Dust’ (BCDN Edition

139)

PAGE 22

Material Contribution to Low Disability Asbestos Claim: Mayne v Atlas Stone Company Ltd [2016] EWHC

1030 (QB) (BCDN Edition 140)

Asbestos Claims:

A Collection of Articles from

BC Disease News (Volume II)

April 2018


October 2016

2 | P a g e

PAGE 24

Court of Appeal Ruling On De Minimis In Asbestosis Cases: Carder v University of Exeter (BCDN Edition

152)

PAGE 28

Asbestos Fibres Can Move in Soil, Says New Study (BCDN Edition 157)

PAGE 28

Crackdown on Counterfeit Cigarettes Containing Asbestos (BCDN Edition 157)

PAGE 29

Recent Developments in Mesothelioma Treatment and Detection (BCDN Edition 158)

PAGE 31

New Mesothelioma Treatment Shows Positive Outcomes (BCDN Edition 167)

PAGE 31

Feature: The Ogden Discount Rate And Its Impact On Asbestos Related Mesothelioma Claims (BCDN

Edition 168)

PAGE 38

Living Mesothelioma Claims: Andreou v S Booth Horrocks & Sons Ltd (2017) (BCDN Edition 172)

PAGE 40

Feature: Keytruda Treatment Costs in Mesothelioma Claims (BCDN Edition 176)

PAGE 49

Cape Plc Settles Asbestos Product Liability Claims With Insurers (BCDN Edition 177)

PAGE 50

Feature: Awards for Loss of Intangible Services in Mesothelioma Claims – an Update (BCDN Edition 177)

PAGE 55

Liability In Mesothelioma Claims: Bussey v Anglia Heating Ltd (2017) (BCDN Edition 185)

PAGE 58

Launch of Mesothelioma Breach of Duty Guide (BCDN Edition 185)

PAGE 59

Updated Mesothelioma PSLA Guide (BCDN Edition 186)

PAGE 59

Feature: Breach of Duty in Pleural Thickening Claim: McGowan (deceased) v AMEC Buildings Limited

(BCDN Edition 186)


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PAGE 72

Feature: Exposure to Asbestos from Sweeping (BCDN Edition 187)

PAGE 84

Brexit Minister Causes Controversy Over Asbestos Track Record (BCDN Edition 191)

PAGE 87

Feature: Fatal Damages Series: Part 1: An Example of the Judicial Approach to Assessment: Grant

(Widow & Executrix of the Estate of Douglas Michael Grant, Deceased) v Secretary of State for Transport

(2017) (BCDN Edition 193)

PAGE 93

Appeal Granted in Bussey v Anglia Heating (2017) (BCDN Edition 194)

PAGE 94

Asbestos Shipping Industry Judgment: Oldman v DEFRA (2017) (BCDN Edition 194)

PAGE 97

Asbestos Related Lung Cancer and Contributory Negligence: Blackmore v The Department for

Communities and Local Government [2017] EWCA Civ 1136 (BCDN Edition 195)

PAGE 99

Feature: Co-Morbidities in Mesothelioma Claims, Causation and Loss of Intangible Benefits: Magill v

Panel Systems (DB Limited) [2017] EWHC 1517 (QB) (BCDN Edition 195)

PAGE 105

Feature: Asbestos Related Lung Cancer and Contributory Negligence: Blackmore v The Department for

Communities and Local Government [2017] EWCA Civ 1136 (BCDN Edition 196)

PAGE 112

Mesothelioma Claim Dismissed on Facts: Lugay v London Borough of Hammersmith and Fulham [2017]

EWHC 1823 (QB) (BCDN Edition 197)

PAGE 117

Asbestos Victims Support Group Forum Success With Disclosure Application (BCDN Edition 198)

Introduction

BC Disease News has covered a wide range of issues that arise in asbestos claims. This reference guide

collates all of our articles into three centennial volumes, with the aim of making the information more

accessible and practically beneficial. This is the 2nd collection.

Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.

mailto:[email protected]



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Pleural Thickening: The Importance of Blunting of One or More of the Costophrenic

Angles of the Lung (BCDN Edition 106)

Introduction

Pleural thickening is the consequence of excess pleural fluid. The pleura is the membrane lining the inside

of the ribcage and surrounding the lungs – it is lubricated by pleural fluid. Inhaled asbestos fibres may

penetrate the lungs and irritate the pleura, causing additional pleural fluid to collect. When that fluid is

reabsorbed inside the body the pleura is thickened, limiting the normal expansion of the lungs and

resulting in shortness of breath. Pleural thickening is generally considered a dose related, cumulative

disease. The greater the exposure to asbestos, the worse the condition will be. The latency period for

pleural thickening is long: it is around 20 years or more. As to the incidence of pleural thickening, the

number of cases assessed for disablement benefit has more than trebled since 1991: there were 150 cases

in 1991 and 430 cases in 2013.1

Pleural plaques are localised areas of thickening of the pleura. They are asymptomatic and do not become

malignant. They merely indicate exposure to asbestos. However, there may well be a risk of other

asbestos-related conditions developing in any event owing to the exposure to asbestos. Pleural plaques

are often discovered incidentally, for example during an x-ray of the lung for other reasons. The latency

period for pleural plaques is 20 or more years. With respect to the incidence of pleural plaques, there

were an estimated 686 cases of non-malignant pleural disease mainly caused by asbestos in 2012 and a

substantial proportion of these cases were pleural plaques. The HSE suggests that this is an underestimate

and that there are substantially more individuals in the population with pleural plaques. 2

This article provides an analysis of how the medical literature defines pleural thickening and pleural

plaques and whether either are capable of causing a respiratory disability. In doing so there will be an

examination of whether blunting of the costrophrenic angle is a prerequisite for establishing a respiratory

disability by considering the courts approach to such cases.

Division in the literature- size v blunting

There have consistently been two definitions of pleural thickening within the medical literature, one based

on the depth and extent of pleural changes seen on x-ray or CT scans and the second, based on the

blunting of one or more of the costophrenic angles of the lung.

In 1984, the only definition in the radiological literature to distinguish diffuse pleural thickening from

pleural plaques was that of Sargent et al3 who characterised diffuse pleural thickening as a uniform,

homogeneous density without nodularity of contour, with accompanying costophrenic angle obliteration.

1 HSE, ‘Non-Malignant Pleural Disease’ < http://www.hse.gov.uk/Statistics/causdis/pleural/index.htm> accessed 4 August 2015. 2 ibid. 3 Sargent EN, Gordonson T, Jacobson G, Birnbaum W, Shiub M, ‘Bilateral Pleural Thickening: A Manifestation of Asbestos Dust Exposure’ (1978) 131 AJR 579.

http://www.hse.gov.uk/Statistics/causdis/pleural/index.htm


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In 1985, McLeod defined diffuse pleural thickening on a chest x-ray as a smooth density occupying at least

one quarter of the chest wall, with or without costophrenic angle obliteration.4 McLoud did not include

costophrenic angle obliteration as an absolute requirement, the paper does however give support for the

contention that there is loss of FVC where costophrenic angle obliteration is seen, but not where pleural

plaques that would meet the definition of pleural thickening based on size were seen.

Perhaps the leading paper on defining pleural thickening based on the radiological extent of pleural

changes seen, comes from Lynch5 . Lynch defined pleural plaques as discrete linear structures, in the

expected position of the parietal pleura up to 8 cm in dimension. If the dimension was greater than 8 cm

with the same features as severe plaques, then he called it diffuse pleural thickening, provided it was

more than 5 cm wide. Identical shadowing, but less than 8 cm in extent was deemed to be a pleural

plaque. Lynch failed to place any significance on the blunting of the costophrenic angles.

More critical, in a legal context is the cause of disability, as the definition of pleural thickening is of little

significance if the radiological changes are insufficient to cause a disability above de minimis, as

established in Johnson v NEI,6 and Cartledge v Jopling.7 In a paper entitled “Asbestos-Related Pleural

Diseases: Dimensional Criteria Are Not Appropriate to Differentiate Diffuse Pleural Thickening From

Pleural Plaques”,8 Approximately, 287 subjects with asbestos related pleural thickening were assessed

against the criteria based on size, and costophrenic angle blunting. The results were quite stark. When

the size definition was used, there was no difference from pleural plaques in the prevalence of respiratory

symptoms or in pulmonary function tests. However, when diffuse pleural thickening was defined as

obliteration of the costophrenic angle, chronic sputum, breathlessness and chest pain were more readily

seen. Most significantly, clear deterioration of lung function was seen on lung function testing as FEV1,

FVC and TLC were all shown to be significantly lower in those where blunting was present.

Movement towards costophrenic angle blunting as the appropriate definition

The 2002 update of the International Labour Office defined pleural thickening as diffuse ‘only in the

presence of and in continuity with, an obliterated costophrenic angle’.9 In a 2004 publication, the

American Thoracic Society titled, ‘Diagnosis and Initial Management of Non-Malignant Diseases Related

to Asbestos’, recorded that, ‘loss of lung function (forced vital capacity) is unrelated to the radiographic

extent of pleural thickening: a similar reduction in FVC was seen with little more than costophrenic angle

blunting as with extensive involvement’.10 The Industrial Injuries Advisory Council (‘IIAC’) in 2005 also

changed their definition for the diagnosis of diffuse pleural thickening and thus changed the DWP criteria

4 McLoud TC, Woods BO Carrington CB et al, ‘Diffuse Pleural Thickening in an Asbestos Exposed Population: Prevalence and Causes’ (1985) 144 Am J Roentgen 9. 5 Lynch DA, Gamsu G, Aberle DR, ‘Conventional and High Resolution Computed Tomography in The Diagnosis of Asbestos Related Diseases’ (1989) 9 Radiographs 523. 6 [2007] UKHL 39. 7 [1963] AC 758. 8 Ameile J, Matrat M, Paris C, et al., ‘Asbestos-Related Pleural Diseases: Dimensional Criteria Are Not Appropriate to Differentiate Diffuse Pleural Thickening From Pleural Plaques’ (2004) 45 Am J Ind Med 289. 9 International Labour Office, ‘International Classification of Radiographs of Pneumoconioses’ (Geneva, Switzerland, International Labour Organisation, 2002) 10 American Thoracic Society, ‘Diagnosis and Initial Management of Non-malignant Diseases Related to Asbestos’ (2004) 170 Am J Respir Crit Care Med 691.


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to establish eligibility for a state pension to: ‘unilateral or bilateral diffuse pleural thickening with

obliteration of the costophrenic angle(s)’.

We would be loath to put too much emphasis on the definition given to pleural thickening by the DWP,

as there is an obvious attraction to a body tasked with the administration of benefits on a limited budget,

to a simple test that can be undertaken with the most basic x-rays. Indeed this was identified by HHJ

Bullimore in England v Foster Wheeler (County Court (Sheffield), 14 August 2009, ([para 55]) of his

Judgment and it is clear the Courts can adopt a more scientific approach.

The medical literature is clearly split as to how pleural thickening and pleural plaques are defined, but the

crucial question for the Courts to decide, is whether the pleural changes, whether plaques or thickening,

are capable of causing a respiratory disability. On this point the literature appears to support the

contention that blunting of the costophrenic angle is an essential requirement of disability.

What is the costophrenic angle and how does blunting cause a disability?

The difference between a blunted and a sharp costophrenic angle is

seen here in the adjacent image. Key to understanding the cause of

disability from conditions of the pleura is the understanding of the

interaction between the diaphragm and the lower rib cage

expanding into the thorax11. Pleural plaques or visceral pleural

thickening without obliteration of the costophrenic angles have

normal lower rib cage expansion and thus the lung is able to expand

as it normally would and as such no loss is generally seen on FVC or

TLC12 or loss that is not considered significant.

How have the Courts dealt with the issue?

It is trite law that pleural plaques are not generally actionable, as they do not generally cause respiratory

disability. The only reported case on the issue as to the significance of the costophrenic angle to

respiratory disability is that of England v Foster & Wheeler. Dr Greenstone gave evidence for the claimant

and Drs Butland and Hind for the Defendants. Dr Greenstone was of the view that the claimant suffered

from pleural thickening causing a respiratory disability and felt that the pleural changes could be

categorised as pleural thickening based on size but admitted that pleural plaques without blunting of the

costophrenic angle do not cause a disability and that no blunting of the costophrenic angle was seen in

this case. Dr Butland was of the view that in the absence of costophrenic angle blunting the claimant’s

condition could not be categorised as pleural thickening and there was no evidence of disability. Dr Hind’s

view was that pleural thickening is possible without blunting of the costophrenic angle, but without such

blunting there could be no disability. Dr Hind also examined the size of the changes seen and felt the

11 Cleemput, J V, De Raeve J, Verschakelen J A, Rombouts J, Lacquet L M & Nemergy B, ‘Surface of Localised Pleural Plaques Quantitated by Computed Tomography Scanning’ (2001) 163 Am J Respir Crit Care Med 705. 12 Singh B, Eastwood PR, Finucane KE, Panizza JA & Musk AW, ‘Effect of Asbestos-Related Pleural Fibrosis on Excursion of the Lower Chest Wall and Diaphragm’ (1999) 160 Am J Respir Crit Care Med 1507.


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condition could not be categorised as pleural thickening. HHJ Bullimore gave his Judgment based more on

the quality of oral evidence he had heard, than the medical literature. He took the view that the radiology

did not support the contention that this was pleural thickening. It is unclear from the Judgment as to

whether this was due to the absence of costophrenic angle blunting but stated the radiological evidence

‘…does not indicate such extensive PP as in effect to mimic PT’ ([Para 56(g)]). It would seem that neither

on size, nor costophrenic angle obliteration criteria did the claimant satisfy the test.

Conclusion

It may be argued the reliance on costophrenic angle blunting is overly prescriptive, but the alternative is

the size definition of Lynch, in which the 8 x 5cm was the crucial criteria, for which the criticism of being

overly prescriptive seems just as apt. The issue is still to be finally determined by the Courts , but certainly

there is a strong evidential base in the medical literature that unless there is costophrenic angle blunting,

there is no impact on the lungs’ ability to function, no matter what the extent of the lung is covered in

pleural plaques/thickening.

Fatal Damages and The Application Of The Ogden Tables: Multipliers For Future

Dependency Must Be Assessed As At The Date of Trial And Not Death (BCDN Edition

130)

Introduction

In Knauer v Ministry of Justice [2016] UKSC 9, the Supreme Court overturned two previous House of Lords

judgments in unanimously ruling that the multiplier in assessing damages for fatal accident claims should

be calculated from the date of the trial, not the date of death. In this article we provide a brief outline of

the decision and follow on in the article below with an in-depth analysis of its impact on the assessment

of fatal damages, with working examples. We have previously considered the first instance decision of the

High Court in edition 60 (here).

Background

Since the House of Lords’ decisions in Cookson v Knowles [1978] and Graham v Dodds [1983] there has

been a distinct approach to the calculation of damages in fatal accident claims. This approach is that

damages ought to be split into two parts, pre-trial loss and future loss. Pre-trial losses will attract interest

at half the normal rates from death until trial, but the latter will attract neither interest nor an allowance

for inflation. In addition, one must take the multiplier for the calculation of future dependency as at the

date of death and then deduct from it the number of years that has elapsed between the death and the

trial to reflect the deduction for early receipt.

However, this has since been the subject of academic criticism and judicial scrutiny, particularly in the

case of the Law Commission, who recommended in their report Claims for Wrongful Death (1999, Law

Com No 263),i that the law in this area was in need of reform. The Law Commission recommended that

Ogden Table multipliers should be assessed as at the date of trial and not death-the latter methodology

http://www.bc-legal.co.uk/images/pdf/BCDN60


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was actuarially flawed and incorporated a ‘discount’ for early receipt in the period prior to trial and

resulted in under compensation for claimants. Further, it was suggested that the application of the

multiplier from the date of trial might be thought simpler and/or more accurate than date of death

assessment.

The Ogden Working Party from as long ago as 2000 considered these criticisms valid and had set out

alternative guidance on how multipliers for fatal damages should be assessed-see A8 Section D, pages 68-

72 of ‘Facts and Figures’ 2015/2016.ii However, until February 2016, when faced with future loss of

dependency claims the courts have found themselves bound by the decision of the House of Lords in

Cookson and have not followed the approach recommended by the Ogden Working Party-see the 3

leading judgements of White v ESAB Group (UK) Ltd [2002] P.I.Q.R. Q6, H (A Chid) v S (Damages) [2002] 3

W.L.R. 1179 and Fletcher v A Train & Sons Ltd [2008] EWCA Civ 413.

The facts of Knauer

Mrs Knauer was employed by the Ministry of Justice as an administrative assistant at Her Majesty’s Prison,

Guy’s Marsh. In the course of her employment, she contracted mesothelioma, from which she died in

August 2009. Her husband, Mr Knauer, made a claim for future loss of dependency under the Fatal

Accidents Act 1976. The Ministry of Justice admitted liability for Mrs Knauer’s death in December 2013.

In a hearing before Bean J in July 2014, the parties agreed the annual figure for the value of the income

and services lost as a result of Mrs Knauer’s death-the “multiplicand”. A dispute arose between the parties

as to whether the number of years by which that figure is to be multiplied-the “multiplier”, should be

calculated from the date of death or from the date of trial. The trial judge held that he was bound to follow

the approach adopted by the House of Lords in the cases of Cookson v Knowles [1979] AC 556 and Graham

v Dodds [1983] 1 WLR 808 and to calculate the multiplier from the date of death. The trial judge made it

clear that, absent that authority, he would have preferred to calculate the multiplier from the date of trial

in line with the approach recommended by the Law Commission in their report Claims for Wrongful Death

(1999, Law Com No 263). Bean J granted a certificate under section 12 of the Administration of Justice Act

1969 to enable Mr Knauer to leapfrog the Court of Appeal and for the matter to be considered again by

the Supreme Court.

Supreme Court Decision

It was unanimously held that calculating damages for loss of future dependency from the date of death,

rather than the date of trial, meant that the claimant was suffering a discount for early receipt of

compensation which would not in fact be received until after trial. In most cases it would result in the

claimant being under-compensated.

What does this mean for the assessment of damages for dependency in fatal accident claims and should

such losses now be calculated? We will compare the old and new methodologies to assess the future loss

multipliers in the below article.

It is important to note that this decision impacts on all Fatal Accident claims that are currently proceeding.


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Most fatal occupational disease cases arise from asbestos related mesothelioma and lung cancer. The HSE

have reported that the majority of mesothelioma deaths in recent years has been in those aged 75 and

above.iiiThe Institute of Actuaries Asbestos Working Party,iv suggests that most asbestos lung cancers are

diagnosed around the age bracket of mid-60s to early 70s and that a typical age of claiming compensation

for lung cancer is about 67 / 68.

In the article below we consider some fuller worked examples using these age parameters to see how the

decision affects the typical values in mesothelioma and lung cancer cases.

The judgment in Knauer v MOJ can be downloaded from here.

Fatal Damages and The Application Of The Ogden Tables: The Impact of Knauer In

Fatal Disease Claims (BCDN Edition 131)

Introduction

In the previous article we provided a case comment on the decision of Knauer v Ministry of Justice [2016]

UKSC 9, in which the Supreme Court overturned two previous House of Lords judgments and unanimously

ruled that the multiplier in assessing damages for fatal accident claims should be calculated from the date

of the trial, not the date of death. We have previously considered the first instance decision of the High

Court in edition 60 (here).

In this article we consider what the decision means for the assessment of damages for dependency in fatal

accident disease claims and how should such losses now be calculated? We start by broadly comparing

the methodologies to assess the future loss multipliers pre and post Knauer. We then provide a matrix

range of old and new valuations in asbestos related mesothelioma cases in which such dependency claims

most typically arise.

The old methodology

Let us take as an example a male diagnosed with asbestos related mesothelioma who dies from the

condition aged 70 in 2013. The medical evidence is that the deceased had a normal life expectancy and

would have lived for a further 17.2 years to age 87 but for the mesothelioma.

The claim is pursued by the deceased’s wife. She was aged 60 at the time death and included within the

claim is a dependency claim on the deceased’s pension income he would have provided for life. The

claimant’s life expectancy is to 88 and she would have outlived the deceased in any event. The

dependency would therefore have come to an end of the deceased’s death at age 87. The trial and

assessment of damages takes place 3 years after death in 2016. The key dates within our example are

represented on the timeline below.

https://www.supremecourt.uk/cases/docs/uksc-2014-0217-judgment.pdf

http://www.bc-legal.co.uk/images/pdf/BCDN60


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The pre-Knauer method of calculating dependency was as follows:

1. Calculate the overall period of dependency

In this case the overall period of dependency is the same as the deceased’s ‘but for’ life expectancy of

17.2 years (as determined by the medical evidence). In some cases it may be shorter-for example the

dependent may have a reduced life expectancy and would have died before the deceased or the

deceased’s health may have prevented services being provided beyond a certain age.

2. Calculate the multiplier for the overall period of dependency

Given the medical evidence of life expectancy the multiplier is taken from Ogden Table 28 (a term certain).

For a period of 17.2 years the multiplier is 14.01 (2.5% discount rate and interpolation).

3. Calculate the pre-trial dependency

This is £10,000 over 3 years or £30,000. The 3 year loss from death to date of trial is effectively treated as

special damages attracting interest of £225.

4. Calculate the post trial dependency.

The 3 year period is subtracted from the overall multiplier of 14.01 to calculate the multiplier for post trial

dependency. The balance of the multiplier is 11.01 (14.01-3).

The post trial dependency is therefore 11.01x £10,000=£110,100. No interest is awarded on this future

loss.

5. The overall claim

The overall claim=(i) Pre trial dependency (+interest) + (ii) Post trial dependency=

£30,000+ £225+£110,100= £140,325

To our timeline we have now added the overall duration of dependency and Table 28 multiplier and

further broken this down to show the pre-trial and post trial multipliers.


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The new methodology

How does the approach differ post Knauer?

The Justices appear to advocate the methodology provided by the Ogden Working Party and set out in

the Explanatory Notes to the Ogden Tables-see the current 2015/16 edition of Facts and Figures at section

A8, paragraphs 64-91 (pages 70-79) and also paragraphs 64 to 81 of the seventh edition of the Ogden

Tables downloaded here from. It is referred to as the ‘actuarially recommended approach’.

This new approach assesses the multiplier as at date of trial and applies discount factors to both pre-trial

and post-trial losses to reflect the risk that the deceased may have died in any event and not survived to

provide the dependency. These discount factors are found at Table E for pre-trial dependency and Table

F for post-trial dependency.

Part of Table E is replicated below and in our example of a male aged 70 at death and a 3 year period

lapsed between death and trial the discount factor is 0.97.

Table: Extract from Ogden Table E for males showing discount factor for 3 year pre-trial losses dependent

on age

Age of deceased at date of death 3 year period from death to trial

60 0.99

65 0.98

70 0.97

75 0.94

80 0.90

The multiplier for future dependency is then assessed from date of trial and not death. That multiplier

also has to be discounted by the Table F factor to reflect the risk that the deceased might have died

anyway before the trial and not survived to provide any post-trial dependency.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/245859/ogden_tables_7th_edition.pdf


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Part of Table F is replicated below and in our example of a male aged 70 at death and a 3 year period

lapsed between death and trial the discount factor is 0.93.

Table: Extract from Ogden Table F for males showing discount factor for post-trial damages where 3 years

period from death-trial

Age of deceased at date of death 3 year period from death to trial

60 0.97

65 0.96

70 0.93

75 0.88

80 0.83

So in our example the dependency is assessed as follows:

1. Pre-trial dependency

3 years x £10,000 x 0.97 Table E discount factor = £29,100.

Interest of £218 would be awarded on this past loss in the usual way.

2. Post-trial dependency

Determine the multiplier from trial and not death. The deceased would have been aged 73 with a life

expectancy of 14.9 years.

The Ogden Table 28 multiplier (2.5% discount rate and with interpolation) is 12.48.

Future dependency=£10,000 x 12.48 x 0.93 Table F discount factor=£116,064.

No interest is payable on future loss.

3. The overall claim

The overall claim=(i) Pre trial dependency (+interest) + (ii) Post trial dependency=

£29,100+ £218 +£116,064.=£145,382.

The Impact on Quantum

In our worked example the dependency claim has increased by £5,057 or 3.6% - a modest increase

individually but not necessarily insignificant across a large book of mesothelioma claims.

Range of Impact in mesothelioma claims


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Most fatal occupational disease cases arise from asbestos related mesothelioma. The HSE have reported

that the majority of mesothelioma deaths in recent years has been in those aged 75-80.v

In the table below we show the impact of the new methodology on dependency claims for deceased males

with age ranges of 65-80 at the time of death. We assume for all ages:

- dependency multiplicand on pension income = £10,000.

- dependency multiplicand on services until age 80 = £1,500.

Ready Reckoner Reserve Uplift

How do these increases in dependency impact upon the typical overall value of mesothelioma claims? We

show the £ and % uplift to the typical overall claim values in our Ready Reckoner Uplift table below. We

assume typical dependency claims as above plus the following heads of loss which will be fixed and

applicable to all the claims:

- General Damages (PSLA) = £75,000

- Past Care = £15,000

- Other Past Losses = £10,000

- Bereavement Award = £12,980

Total =£112,980

Ready Reckoner Uplift Table

AGE RANGES (AGE AT DEATH)

DEPENDENCY MULTIPLIER ON PENSION

DEPENDENCY MULTIPLIER ON SERVICES

DEPENDENCY INCREASE

Pre – Knauer

Post - Knauer

Increase £/% Pre – Knauer

Post - Knauer

Increase £/%

£ %

65 £167,525

£175,252

£7,727

4.6%

£18,843

£19,404

£561

2.9%

£8,288

4.9%

70 £141,225

£145,382

£4,157

2.9%

£13,323

£13,366

£43

0.3%

£4,200

3.0%

75 £112,825 £113,771 £946 0.8% £7,083 £7,186 £103 1.4% £1049 0.82%

80 £88,125 £87,460 -£665 -0.7%

N/A N/A N/A N/A -£665 -0.7%


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Deceased age at death

Pre Knauer valuation-Overall Claim Post Knauer valuation-Overall Claim

Increase in Overall Valuation

£ %

65 £299,348 £307,636 £8,288 2.77%

70 £267,528 £271,728 £4,200 1.5%

75 £232,888 £233,937 £1049 0.4%

80 £199,405 £200,440 -£665 -0.7%

The % increases in the final column could be used to provide a quick and broad-brush indication of the %

uplift to be applied to reserves across a book of mesothelioma claims. Ironically it appears the new

methodology has a negative impact on the dependency claim where the deceased was near the end of

normal life expectancy and will reduce the claim value slightly.

It is important to note that this decision impacts on all Fatal Accident claims that are currently proceeding.

The judgment in Knauer v MOJ can be downloaded from here.

Low Exposure Mesothelioma Judgment: Case Comment on Smith v Portswood

House Ltd (BCDN Edition 138)

In a ruling handed down by the High Court, Smith v Portswood House Ltd [2016] EWHC 939 (QB), an

employer has successfully defended a fatal mesothelioma claim arising from factory exposure during the

1970s.

The deceased was a wood working machinist, employed in the defendant’s joinery shop from 1973 to

1977. It was alleged he was exposed to asbestos dust from the manufacture of fire doors containing

asbestos cement sheets which he would cut to size using an electric saw connected to a dust extraction

system. As a result of this he developed mesothelioma in 2013 and sadly died in 2015.

The defendant’s witnesses (including the joinery shop manager) could not recall asbestos being used in

the manufacture of any item in the joinery shop. At the relevant time two types of fire door were

produced, half hour fire doors containing no asbestos and one hour fire doors containing an asbestos

sheet underneath the plywood facing. The defendant’s witnesses could not exclude the possibility that

one hour fire doors were made occasionally within the joinery shop.

It was alleged that the exposure was negligent and in breach of the Asbestos Regulations 1969 and section

63 of the Factories Act 1961 in terms of inadequate control of dust given off by the processes involved.

At the material time the Asbestos Regulations 1969 were accompanied by the Factories Inspectorate

Technical Data Note (TDN13), which set limits for ‘safe’ asbestos dust concentrations of 2 fibres/ml for a

four hour time weighted average (TWA) concentration and 12 fibres/ml for a 10 minute TWA.

Section 63 of the Factories Act required employers to remove dust or fumes by all practicable measures

where the same was ‘likely to be injurious’ or of a ‘substantial quantity’.

https://www.supremecourt.uk/cases/docs/uksc-2014-0217-judgment.pdf


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‘In every factory in which, in connection with any process carried on, there is given off any dust or fume or

other impurity of such a character and to such extent as to be likely to be injurious or offensive to the

persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken

to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent

its accumulation in any workroom, and in particular, where the nature of the process makes it practicable,

exhaust appliances shall be provided and maintained, as near as possible to the point of origin of the dust

or fume or other impurity, so as to prevent it entering the air of any workroom’.

The court found that the deceased making a fire door containing asbestos was an exceptional occurrence

and, when he used the saw, the extraction system collected the dust, keeping the dust levels below the

concentrations specified in the Factories Inspectorate TDN13. As such there was no breach of the Asbestos

Regulations 1969.

Further on the issue of s. 63 of the Factories Act, it was held that: ‘Any woodworking machine with

reasonable exhaust properties would discharge some dust as the irreducible residue implicit in the data

set out in TDN42. No doubt such residual dust could “fly up in the air” and (if so) it might well be difficult

for the operator to avoid inhaling some of it. Mr. Upton said that the extraction was very efficient so that

there was little in the way of dust in the air in the shop. He was not directly challenged on that statement.

In the circumstances, the evidence does not support a finding that there was a “substantial quantity of

dust” given off, and thus there is no basis for a finding of breach of section 63’.

The rationale of this decision focused very much on whether visible dust is the test of significance. On the

facts of this case there was evidence of extraction with little dust in the air and this seems to be the reason

that there was no ‘substantial quantity of dust’ found. It is unclear, if that were not the case, whether the

outcome would have been the same. Due to the lack of guidance in McDonald around this issue more

clarity around the statutory interpretation of s.63 would be useful and it is yet to be reported if this

decision will be appealed.

We have previously discussed the topic of low exposure mesothelioma in editions 89 (here) and 91(here)

of BC Disease News, these will be followed shortly by an updated feature on low exposure. In addition,

there will be a future feature in BC Disease News discussing the statutory interpretation of s.63 of the

Factories Act 1961.

S.63 Factories Act 1961: The Statutory Interpretation of ‘Substantial Quantity of

Dust’ (BCDN Edition 139)

Introduction

In the previous article we provided a case comment on the recent low exposure mesothelioma judgment

in Smith v Portswood House [2016] EWHC 939. Whilst this decision is welcomed by employers and insurers

as evidence that such claims can be successfully defended, it has once again raised questions regarding

the interpretation of s.63 of the Factories Act 1961. In this feature we will provide an overview of the

judicial interpretation of s.63 thus far with a particular focus on how ‘substantial quantity’ is defined. The


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key issue which we will be considering is does s. 63(1) import the concept of foreseeability such that

breach only arises where injury was reasonably foreseeable to the reasonably well informed factory

occupier - whether by actual or constructive knowledge?

The Factories Act 1961

Section 63 of the Factories Act (FA) 1961 (formally s.47 of the Factories Act 1937) required employers to

remove dust or fumes by all practicable measures where the dust was ‘likely to be injurious’ or of a

‘substantial quantity’.

The section states:

‘In every factory in which, in connection with any process carried on, there is given off any dust or fume or

other impurity of such a character and to such extent as to be likely to be injurious or offensive to the

persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken

to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent

its accumulation in any workroom, and in particular, where the nature of the process makes it practicable,

exhaust appliances shall be provided and maintained, as near as possible to the point of origin of the dust

or fume or other impurity, so as to prevent it entering the air of any workroom’.

It is clear then that there are two succinct limbs to the test in s.63. Firstly, is the character of the dust that

the claimant alleges to be exposed to ‘likely to be injurious’ and secondly is the dust of ‘substantial

quantity’.

The separate limbs of the test in s.63 was considered by Lord Evershed in the silicosis case of Richards v

Highway Ironfounders (West Bromwich) Ltd [1955] 1 WLR 1049, where he said:

‘The first thing to notice…is the dichotomy, which the judge observed, between cases of the emission “of

dust or fumes of such a character as to be likely to be injurious” on the one hand and “substantial quantities

of dust of any kind” on the other hand. In my judgment, the dichotomy was correctly noticed by the judge.

Having regard to the state of knowledge, it may be taken that the dust, with which we are here concerned,

was not at any material date dust within the first branch of the section, since it could not fairly be regarded

then as likely to cause silicosis. On the other hand, there is no doubt that the dust was emitted in substantial

quantities, so that it fell within the second branch of the language which I have read’.

However, the questions which we seek to address is whether foreseeability is only relevant to the first

limb where dust exposure is ‘likely to be injurious’ but not to the second limb where the exposure is

‘substantial’? In order to answer this question, one must look at how ‘likely to be injurious’ or ‘substantial

quantity’ is defined.

Injurious v Substantial Quantity

It is generally accepted that the condition and duty of care in the first limb of s.63, that the dust is ‘likely

to be injurious’ only arises where there is a reasonably foreseeable risk of injury. As such the employer


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can rely upon official guidance and standards of the time to establish what was considered to be safe at

the time and that their behaviours and practice were therefore reasonable.

However, there are no qualifying words in the second limb and so it has been argued that this is absolute

in its terms and does not require a foreseeable risk of injury. However, if the section is broken down into

two distinct parts and the duty in respect of ‘substantial exposure’ is not determined by knowledge, than

what does the word mean and when does a breach arise?

There appears surprisingly little judicial interpretation of the word’s meaning. In Wallhead v. Ruston and

Hornsby Ltd [1973] 14 KIR 285, Bagnall J (p. 293) described substantial as follows:

“‘Substantial’, in my view, does not mean merely ‘not negligible’: there must be, to use a common phrase,

‘a lot of dust’; and it must be substantial when given off, not substantial merely by accumulation over a

period.”

Ambiguous and subjective assessments of ‘substantial’ dust however serve little purpose (not least to

employers at the time with responsibility to safeguard the health and safety of their employees). In Boyle

v Laidlaw & Fairgrieve Ltd [1989] SLT 139, Lord Morrison whilst agreeing that a ‘substantial quantity’ of

dust means ‘a lot of dust’ went on to say:

‘In determining whether the defenders’ processes gave off such a quantity, it is in my opinion reasonable

to have regard to what is said in the Health and Safety Executive’s guidance note entitled ‘Occupational

Exposure Limits’ published in 1985. This document provides that: ‘Where there is no indication of the need

for a lower value, personal exposure should not exceed 10mg/m3 8 hour TWA (time weighted average)

total dust and 5 mg/m3 8 hour TWA respirable dust’. Mr Kelly’s view was that a figure in excess of this 10

mg limit would constitute a substantial quantity of dust, and I accept this view as indicating a reasonable

standard for determination of the question’.

In Carmichael v. Cockburn [1955] SC 487, in relation to s. 47 of the Factories Act 1937 (the predecessor of

section 63), Lord Thomson at (p. 490) said:

“Section 47 (1) appears to deal with two separate matters. Measures of protection are to be taken (1)

when there is an injurious element present and (2) where what is present is a substantial quantity of dust

of any kind. The contrast appears to be between something which has an injurious quality and something

where mere quantity has the injurious effect.”

Lord Thomson’s view suggests that in relation to the second limb (substantial quantity), a quantity can

only be regarded as substantial when its quantity is what makes it harmful – in other words, it is large

enough to have a known injurious effect. A quantity of asbestos dust could therefore only be regarded as

substantial if it was of an amount known at the time to have an injurious effect. Knowledge of its effect

(and so whether it was substantial) would be determined by available guidance documents.

In recent authorities, attention has turned to the question of whether the visibility of the dust the claimant

was allegedly exposed to is sufficient to satisfy the second limb of s.63.


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Visible Dust Requirement

In McDonald (Deceased) (Represented by Mrs Edna McDonald) v The National Grid Electricity Transmission

Plc [2014] UKSC 53, the claimant was pursued in common law negligence, breaches of s.47 (1) of the

Factories Act (FA) 1937 (subsequently s.63 of FA 1961) and regulation 2(a) of the Asbestos Industry

Regulations 1931(the mixing of asbestos by hand shall not be carried on except with a mechanical exhaust

draught to ensure so far as practicable the suppression of dust).

The trial judge dismissed all Mrs McDonald’s claims. On appeal, the Court of Appeal allowed Mrs

McDonald’s appeal under the 1931 Regulations (“the first appeal’” but dismissed her appeal under the

s.47 1937 Act (subsequently s.63 of FA 1961) (“the second appeal”). National Grid appealed to the

Supreme Court in the first appeal and Mrs McDonald cross-appealed in the second appeal. The Supreme

Court dismissed both appeals.

The second appeal was dismissed by a majority of four to one, Lady Hale dissenting. The majority agreed

that, while the rest of the statutory criteria are met, there was no sufficient evidence to rebut the Court

of Appeal’s conclusion that Mr McDonald had failed to establish that a “substantial quantity of dust” had

been given off by an asbestos mixing process at the power station. In reaching this conclusion the Supreme

Court gave some guidance regarding the judicial interpretation of the word ‘substantial’.

At para 86, Lord Kerr confirmed that the phrase ‘any substantial dust of any kind’ in s.63, does not mean

a substantial quantity of injurious dust. He went on in paragraph 87 to say that proper application of the

statutory words requires a staged approach: (i) is the dust, fume or other impurity which is given off of

such a character and given off to such an extent as to be likely to be injurious or offensive to the persons

employed? (ii) if not, has any substantial quantity of dust of any kind been given off in the workroom

where the claimant was a person employed? (iii) if the answer to (i) or (ii) is “yes” are there practicable

measures which can be taken to protect the persons employed against inhalation of the dust or fume or

other impurity and to prevent its accumulation in any workroom? And (iv) if the answer to (iii) is “yes”

have they been taken? In paragraph 88 he said that the question whether the dust is asbestos or other

injurious dust should therefore not obtrude into the initial assessment of whether the second limb of

section 47(1) is engaged. To do this conflates consideration of the second limb with considerations that

are relevant to the first limb.

It was submitted by the claimant’s counsel that as no reliable scientific means existed at the time of

exposure for measuring the concentrations of dust in the atmosphere, in those circumstances, the

assessment of dust levels had to be by reference to a ‘visible dust cloud’ even though the hazardous

proportion of the dust would be invisible to the naked eye. Further, he submitted that there was enough

evidence for the Supreme Court to conclude that such a visible dust cloud was present and that as a result

the substantial quantity of dust was made out.

Lord Kerr identified the following issues with this argument;

- There was no examination before the trial judge or the Court of Appeal of the issue whether the

only means of assessing whether dust levels were substantial was by visible assessment.

- There was no evidence given of how dense the cloud would have to appear to be.


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It was therefore concluded that the Supreme Court were not in a position to conduct retrospectively the

type of investigation that would be needed to solve these issues and so found that the second limb test

had not been satisfied. Lord Kerr was not therefore dismissing the claimant’s argument in its entirety but

instead simply stated that there was insufficient evidence to support it.

As such, the judgement did not satisfactorily deal with the issue of whether the second limb of section 63

(a substantial quantity of dust given off) imports the concept of foreseeability of harm and thus the

standard of knowledge at the material time. Lord Kerr (at [86]-[87]) was clear that the issue of a substantial

quantity of dust is simply a quantitative issue, nothing more. It does not involve a consideration about the

injurious nature of any dust (and thus what might be foreseeable about exposure to particular levels of

dust based on the standards of knowledge at the relevant time).

Lords Reed and Neuberger also appeared to adopt that position, without dealing with the point expressly

(at [208]). However Lord Kerr (at [86]) did leave open the possibility that the injurious propensity of the

dust may have a role to play in the issue of what are practicable measures of suppression. But of course

the injurious propensity of dust depends on what is known about the dust at certain times. Thus what is

practicable might well depend on the standards of knowledge at the relevant time. This would import the

standards of knowledge of the material time and the concept of foreseeability into the second limb of

section 63.

Lady Hale, in her dissenting judgment said that whilst she agreed with Lord Kerr that this limb of s.63

required only a quantitative assessment of the amount of dust, she disagreed with the conclusion of the

majority that there was no evidence that the quantity of dust given off at the relevant time was

‘substantial’. In Lady Hale’s opinion the evidence of both experts as to the amount of dust likely to have

been given off by the various activities carried on at the power station (for example, asbestos powder had

been mixed in oil drums, pre-formed sections had been cut and old lagging removed) were all activities

which would have given rise to high concentrations of asbestos dust. “In my view,” she said, “it shows that

the amount of dust given off was substantial.”

As such the question of what method should be adopted when assessing whether the dust given off was

substantial remains unanswered. It was suggested in McDonald that where there are no scientific means

available at the time to measure the level of exposure, reference should be had to the visibility of the

dust. However, it remains unclear what level of visibility would be needed in this scenario.

This issue arose again in the recent decision of Smith v Portswood House Limited, in which the deceased

was a wood working machinist, employed in the defendant’s joinery shop from 1973 to 1977. It was

alleged he was exposed to asbestos dust from the manufacture of fire doors containing asbestos cement

sheets which he would cut to size using an electric saw connected to a dust extraction system. As a result

of this he developed mesothelioma in 2013 and sadly died in 2015.

The defendant’s witnesses (including the joinery shop manager) could not recall asbestos being used in

the manufacture of any item in the joinery shop. At the relevant time two types of fire door were

produced, half hour fire doors containing no asbestos and one hour fire doors containing an asbestos

sheet underneath the plywood facing. The defendant’s witnesses could not exclude the possibility that


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one hour fire doors were made occasionally within the joinery shop but it was found that there were

extraction devices attached to the wall saws.

The defendant’s counsel submitted that the only guidance from the authorities is that ‘substantial

quantity’ involves a quantitative assessment and that there must have been ‘lots of dust’ or ‘clouds of

dust’.

In relation to the visibility test of substantial quantity, HHJ Curran pointed out that the deceased’s

evidence as to the dust given off had been that the suction device did not take away all of the dust that

was given off. When he said, “[t]he dust would fly up into the air when I was operating the wall saw and

I could not avoid inhaling it….” he did not specifically refer to the dust as being either visible or dense, nor

did he refer to it as “a cloud of dust”, nor was any other description of its appearance given.

He went on to say at para 131 that:

‘It will be remembered that Lord Kerr in McDonald (above) had said that there had apparently been no

examination before the trial judge or the Court of Appeal of the issue whether the only means of assessing

whether the dust given off had been ‘substantial’ was by visible assessment. Nor had any evidence been

given of how dense the cloud would have to appear to be. These, and “doubtless many other issues” he

said, would have been canvassed before the trial judge if there had been a clear confrontation of the

question whether, merely on its appearance, the quantity of dust which was generated in the workroom

satisfied the statutory requirement of being substantial.’

It appears from this that HHJ Curran is of the opinion, due to the lack of guidance in McDonald, that the

visibility of dust is not the only measure of substantiality. As such the judge turned his attention to the

standard of ventilation and extraction. In this regard the claimant’s expert said the following:

“… only primitive and unreliable methods of quantifying dust concentrations in air were available. Due to

inadequacies in the available dust measurement equipment, the majority of employers would not have

had access to any reliable means of measuring dust concentrations in the air and literature which published

asbestos dust concentrations from various work processes with asbestos was not generally available until

the early 1970s.”

As such he felt that in the absence of reliable methods of measurement the presence of visible clouds of

dust from work processes seemed to him to be the only method available to make any assessment of the

quantities of dust. He submitted that as the deceased had described dust ‘flying up into the air’ when he

operated the wall saw, even thought it had extraction equipment fitted to it, then if the deceased’s

evidence was accepted it must also be concluded that there must have been substantial quantities of dust.

HHJ Curran did not appear to be comfortable with this conclusion and stated that ‘it comes close to

reversing the burden of proof in circumstances in which the evidence of the discharge of substantial

quantities of dust rests upon a single sentence in the witness statement of Mr Smith, when it was

impossible for him to be cross-examined’. He also pointed out that there was no evidence given of how


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dense any ‘cloud of dust’ would have to appear to be to arrive at the view that there was a substantial

quantity.

It would appear that Lord Kerr’s approach in McDonald has been followed here, in that simply stating

there was a presence of dust will not be sufficient, as Lord Kerr stated, if the issue had been addressed

sufficiently these and ‘doubtless many other issues’ would have been examined. As such to establish a

‘substantial quantity’, there must be a reference to the dust being visible or dense and some further

description of the dust. As in McDonald there was no such evidence.

HHJ Curran QC then turned to the approach of Lady Hale in McDonald in which he stated at para 139:

‘If one were to take the approach favoured by Lady Hale in McDonald by having regard to the opinions of

both experts as to the amount of dust likely to have been given off by the various activities shown to have

been carried on at Millbrook, namely sawing of wood of all kinds, and on exceptional occasions sawing of

asbestos for a single one-hour fire-check door (as I have found to be the most which can be established on

the evidence) it cannot in my view be said to have been shown on the balance of probabilities that the

amount of dust given off was substantial.’

Despite the fact that this approach formed part of an obiter judgment HHJ Curran appears to have adopted

this test in the current case, notwithstanding its failing to meet the requisite standard.

As a result, it was found that the claimant had not proven on the facts that there was any ‘substantial

quantity’ of dust. What can we conclude about the definition of ‘substantial quantity’ from these

authorities?

Conclusion

It appears from the judgment in Smith that HHJ Curran QC was attempting to establish whether the second

limb of the test contained in s.63 FA was satisfied using the very limited guidance contained in McDonald.

It seems well established that the assessment of the second limb is purely quantitative. Additionally, it

appears that the courts will consider the availability of any scientific means of measuring dust at the time

of exposure and if this is not available they will then turn their attention to the evidence given of the

visibility of the dust. However, there remains a number of questions, including:

- What level of description is required regarding visible dust?

- What is meant by ‘doubtless many other issues’, as mentioned in McDonald?

- Will the test advocated by Lady Hale in McDonald regarding the dust given off being assessed by

reference the activities being carried out continue to be adopted?

- If s.63(1) has 2 separate limbs and the duty in respect of ‘substantial’ exposure is more absolute -

in the sense that foreseeability of injury is irrelevant - what is meant by an employer’s duty under

the section only to take ‘all practicable measures’? Does this mean that an employer can only take

measures against such risks which it ought reasonably to know about?


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Whilst this was a significant win for defendant practitioners, it should be borne in mind that the majority

of the reasoning in this decision was based on the evidence of the extraction procedure. This will not

always available where breach of statutory duty under the FA is alleged and so the outstanding questions

identified in relation to the interpretation of s.63 will eventually need to be addressed.

Material Contribution to Low Disability Asbestos Claim: Mayne v Atlas Stone

Company Ltd [2016] EWHC 1030 (QB) (BCDN Edition 140)

This was an asbestos related pleural thickening claim pursued by the estate of Keith Norman, who, during

his lifetime, commenced proceedings against three former employers in respect of his exposure to

asbestos in the 1950s and early 1960s. No insurance cover was found for the first defendant, Atlas Stone,

and third defendants, Walker Bros (Darlington) Ltd and the claim was served only against the second

defendant, Wheatley Winton Hayes Ltd. Mr Norman worked as a labouring assistant for Atlas Stone,

during 2 periods between 1951 and 1953, removing chunks of rubble and asbestos cement roofing sheets

from their factory. He then worked as a driver for the Defendant, a building company, for a period of eight

months between 1958 and 1959. He then went to work as a driver for Walker Bros. between 1959 and

1962, collecting asbestos sheets from a factory. During his period of employment with the Defendant, in

addition to transporting asbestos sheets, he was regularly involved in the demolition of prefabricated

buildings which contained various asbestos products. He attended the site on a daily basis, loading the

broken debris on to his lorry, stamping it down to compact it and driving it away.

The claim was solely in respect of Mr Norman’s pain, suffering and loss of amenity. The defendant

admitted that it was in breach of common law and statutory duty in relation to Mr Norman’s exposure to

asbestos during his employment with them. However, causation was denied.

The medical experts in the case were agreed on all matters relating to Mr Norman’s condition. Mr Norman

had pleural plaques and diffuse pleural thickening with associated infolded lung, attributable to

occupational asbestos exposure.

The percentage contributions of the three employers to his total asbestos exposure was agreed between

the parties as follows: Atlas Stone – 55.1 (that is, two periods at 24.49 and 30.61 combined); the Defendant

– 8.16; and Walker Bros. – 36.73. The medical experts agree that Mr Norman’s cardio respiratory disability

was between 70% and 80%. The vast majority of that disability, however, was due to very significant co-

morbid medical conditions, principally obesity, severe obstructive sleep apnoea, diabetes and chronic

heart failure. His death was unrelated to his asbestos induced disease. If diffuse pleural thickening had

been present on its own, without the co-morbid conditions, the experts agree that this would probably

have resulted in a 15% disability in an otherwise active and unrestricted individual. The severity of his

comorbid conditions means that the additional disability caused by asbestos induced diffuse pleural

thickening was only very minor, at around 5% of the 70% - 80% disability. As a result the defendant was

only responsible for 8.16% of a 5% disability. This was calculated as being an overall contribution of 0.4%.

The experts agreed that this 5% asbestos-attributable disability would probably not have prevented Mr

Norman from undertaking any specific activity, but would have made him a little more breathless when

undertaking those activities of which he was capable.


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Mrs Justice Cox DBE, pointed out that, in industrial disease claims based on negligence and breach of

statutory duty it is trite law that the claimant must prove on a balance of probabilities that the Defendant’s

breach of duty caused or materially contributed to his injury, as per Bonnington Castings Ltd v Wardlaw

[1956] AC 1956. Also, she highlighted that the claimant must show that he has suffered an actionable

injury, as explained in Rothwell v Chemical and Insulating Company Ltd and Another [2008] 1 AC 281.

The question was then posed - what is the position where an actionable injury has been materially

contributed to by a number of different tortfeasors?

The defendant submitted that since diffuse pleural thickening is a divisible and cumulative condition the

defendant could only be held liable for the additional damage, if any, that can properly be attributed to

its own breach of duty, which it was claimed did not result in an actionable injury.

The judge placed emphasis on the decision of Carder v University of Exeter [2015] EWHC 2399 (QB), in

which the claimant’s overall disability was assessed at 60 per cent, 40 per cent being due to asbestosis

and 20 per cent to other, unrelated causes. The expert engineer estimated that the second defendant’s

contribution to his total asbestos exposure was 2.3 per cent and that figure was agreed. Part of the agreed

medical evidence was that this 2.3 per cent contribution would not have made any noticeable or

measurable difference to the objective appearance and condition of the claimant’s lungs, or to his

perception of his symptoms and his ability to cope with daily tasks. Relying on this evidence the defendant

contended that because its asbestos exposure made no addition to the claimant’s symptoms and disability

it had not caused any actionable damage to the claimant, whose claim therefore failed on causation.

Rejecting this argument, which it was noted had not previously been advanced in a claim for asbestos

induced disease, HHJ Gore QC sitting as a Judge of the High Court found on the evidence, inter alia, that

the 2.3 per cent contribution to exposure was more than de minimis; that it did make a contribution to

the claimant’s development of asbestosis and his overall disability; and that the claimant was properly to

be regarded as ‘worse off’ in Rothwell terms. He had therefore suffered an actionable injury which

sounded in damages.

The defendant submitted that the present case was distinguishable from Carder on the facts, alternatively,

he claimed, the judge should decline to follow it since it is inconsistent with more recent appellate

authority, for example, Williams v Bermuda Hospitals Board [2016] UKPC 4.

This was rejected by Mrs Justice Cox DBE, who stated that the essential question in this case, is whether

it has been proved that Mr Norman suffered an actionable injury as a result of the totality of his exposure

to asbestos, to which this Defendant made a material contribution.

The judge decided that as a result of his total exposure over the specified periods, his overall 5 per cent

disability was clearly actionable, notwithstanding his substantial co-morbidities and a contribution of 8.16

per cent to that actionable injury which was small but nevertheless material.

In coming to this decision she stated:


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‘The suggestion that a claimant seeking damages for asbestos-related disease must go on to prove in

addition that a particular defendant made a material contribution to his disease process, in the sense that

the contribution of itself gave rise to a discernible or measurable injury, is unwarranted and is in my view

unsupported by authority. Such a requirement would ignore the totality of the claimant’s exposure to

asbestos during his working life and the quantifiable disability caused by that exposure. It would not accord

with either the reality of this industrial disease or, as Stuart Smith LJ saw it, “common sense”. It would

lead, in my view, to uncertainty and to arbitrary results and unfairness, both to claimants and among

defendants’.

Therefore the claimant was awarded 8.16% of £12,600, namely, £1,028. It should be noted that the

decision of Carder is due to be heard in the Court of Appeal in July 2016. As such, depending on the

outcome of this appeal, decisions such as this may yield a different result in future. We will continue to

update readers on developments in this area.

Court of Appeal Ruling On De Minimis In Asbestosis Cases: Carder v University of

Exeter (BCDN Edition 152)

Introduction

In the 1st instance decision of Carder v University of Exeter13, the claimant had been exposed to asbestos

during employments as an electrician giving rise to asbestosis. 97% of the claimant’s exposure arose with

an employer from the 1950s which was no longer in existence. The claimant initially pursued a claim

against both a Hospital Board, which was responsible for 0.3% of the overall exposure, and the University

of Exeter, responsible for 2.3% of overall exposure. The claimant discontinued against the Hospital Board

on the basis that its contribution to the overall asbestos exposure was de minimis. The claimant was

successful in his claim against the University as despite its contribution to the asbestosis being ‘very small’

it was still ‘material’. The University appealed on the basis that its exposure had not caused or contributed

to the claimant’s symptoms and disability.

In this article, we discuss the judgment of the Court of Appeal and consider its implications for ‘material

contribution’ defences in low exposure asbestosis claims.

Background

Asbestosis is fibrosis of the lung tissue and is a dose related disease. This means that the inhaled asbestos

fibres operate cumulatively to cause the disease and the extent and severity of the disease is related to

the quantity of fibres inhaled. In general, the greater the asbestos exposure the worse the disease

becomes. For that reason, asbestosis is sometimes describes as a ‘divisible’ disease, i.e. it can be divided

into the proportions attributable to different dose exposures. This is to be contrasted with indivisible

diseases, such as asbestos related lung cancer and mesothelioma, where the severity does not depend on

the asbestos dose.

13 [2016] EWCA Civ 790


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The test of causation for divisible diseases is known as the ‘material contribution’ test, also commonly

referred to as the Bonnington Castings test, where a defendant is liable if it is shown that it materially

contributed to the overall damage. A defendant is only severally liable to the extent of its contribution to

damage and apportionment of damages can apply as per Holtby v Brigham and Cowan (Hull) Ltd [2000]

ICR 1086.

Carder v University of Exeter

1st Instance

Mr Carder was 87 years old at the time of judgment and claimed damages for asbestosis

caused by his exposure to asbestos for two periods in the 1980s and 1990s by Exeter University. His overall

disability was assessed at 60 per cent, 40 per cent being due to asbestosis and 20 per cent to other,

unrelated causes. It was agreed evidence that the Universities’ contribution to the claimant’s total

occupational asbestos exposure and the asbestosis was 2.3%.

The University conceded it had made a ‘material though very small’ contribution to the asbestosis, but

this made no addition to the claimant’s symptoms/disability and had not caused him to be worse off

physically or economically. There was no actionable damage and it was wrong to treat a contribution to a

disease process as sufficient to found a claim for damages where such contribution did not make the

claimant ‘appreciably worse off’ - as per Lord Hoffman’s test in Rothwell v Chemical and Insulating

Company Ltd [2007] UKHL 39.

In doing so the defendant relied on the statement of the medical expert Dr Rudd, who said:

‘Having been asked whether the asbestosis fibre contribution of the defendant would have a) made the

objective condition and appearance of the lungs ‘notably different’, or (b) made lung function test results

‘materially different’, or (c) made subjective perception of symptomatology ‘noticeably different’, or d)

made the claimant’s ability to cope with daily tasks ‘measurably or demonstrably different’ for quite

different measures, he opined ‘I suspect the questioner wants to know whether without the exposure with

either or both of the defendants would any of items a) to d) inclusive be any different? The answer is they

would not’.

The judge at first instance, HHJ Gore, identified 8 factors which he considered made the claimant ‘worse

off’.

These factors included:

- In the opinion of Dr. Rudd, from a medical perspective, 2.3%, though very small was material and

beyond de minimis.

- The risk of development and the extent of asbestosis increase in relation to dose, which is an

indicator that the claimant has become worse off physically as a result of the 2.3% contribution.

- Because each source of asbestos will have contributed to the development of asbestosis in

proportion to the dose, the 2.3% contribution has made a contribution to the overall condition,


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albeit one that does not sound in the appearance of the lungs, the lung function test results,

perception of symptoms, or ability to cope with tasks of daily living.

- Persons with asbestosis are at an increased risk of lung cancer compared with persons with a

similar history of exposure who have not developed asbestosis. The condition will progress, and

there is a 50% risk that it progresses so seriously as to leave the claimant bed and chair ridden and

totally dependent.

- The jointly instructed engineer had asserted that the even smaller contribution of exposure by

one of the other small exposures was ‘probably not significant’ at 0.1 fibre ml years, he expressed

no such qualification in respect of the defendant’s exposure, perhaps because it was estimated at

eleven times greater, at 1.2 fibre ml years.

- The fact that the likely progression of asbestosis, together with the risk of it progressing to the

point that the claimant is virtually confined to bed and chair and dependent upon others, are to

be taken into account in the immediate award of damages, represents, in my judgment, being

worse off.

- Even if asbestosis in this case is asymptomatic in the way that pleural plaques in Johnston were,

on no view can this condition be described as benign.

As such HHJ Gore concluded para 34:

‘For all those reasons, I find that the claimant did suffer damage and injury that was actionable, and that

he has so proved as against this defendant even though its contribution was very small. He is therefore

entitled to damages’.

The full liability value of the claim was assessed at £67,500, and 2.3% of this was calculated as £1,552.50.

Court of Appeal Decision

On appeal, the defendant submitted that the judge at first instance should have concluded that, whilst it

had made a ‘material though very small’ contribution to the asbestosis, this had made no addition to Mr

Carder’s disability and had not caused him to be worse off, physically or economically, as required by

Rothwell. It was also submitted, that the judge had wrongly treated contribution to a disease process as

sufficient to found a claim for damages. Finally, the defendant claimed that HHJ Gore had considered the

effects of asbestosis as a whole, including the risks of malignancy associated with it and its current

symptoms when there were all factors which would have existed but for the appellant’s breach of duty

and were not increased by it.

The Master of the Rolls, in delivering a unanimous judgment, considered Rothwell and Holtby and noted

at para 22, that:

‘It can be seen that, in the context of asbestosis, the words ‘disease’, ‘impairment’, ‘injury’, ‘disability’ are

used interchangeably. I do not find this helpful. With respect to the House of Lords in Rothwell, it is

unprofitable to consider whether a particular medical condition should be characterised as a ‘disease’ or

an ‘injury’. Instead, the focus should be on whether, to use the language of Lord Hoffmann, the medical

condition has made the claimant worse off’…In my view, the use of labels to describe a medical condition

may be convenient; but it must not distract attention from the only relevant question, namely whether the


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claimant is materially worse off a result of the alleged tort, i.e. whether he has suffered damage’.

[Emphasis added].

Lord Dyson accepted that most of the 8 factors relied upon by the judge at 1st instance to find actionable

damage ‘were of little weight’. However, the defendant’s concession that the 2.3% exposure was a

material contribution i.e. not de minimis, to the asbestosis, was a ‘critical’ concession. Therefore he held

that the judge was correct in deciding that Mr Carder was slightly worse off. The severity of the disease

had been increased to a small, albeit not measurable extent.

‘It seems to be that there is a fundamental contradiction in the appellant’s case. On the one hand, Mr Kent

submits that Dr Rudd’s answers to the four questions show that the asbestos dust attributable to the

appellant made no material contribution to Mr Carder’s asbestosis: the 2.3% has made, and will make, no

difference to Mr Carder’s symptoms, disability or prognosis. On the other hand, he accepts that (i) 2.3% is

a material contribution to the entire dose of asbestos dust; (ii) each source of asbestos exposure will have

contributed to the development of Mr Carder’s asbestosis (including the risk of his developing it) in

approximate proportion to the dose of exposure received in each; and therefore (iii) the 2.3% made a

material contribution to Mr Carder’s asbestosis. It is not in dispute that asbestosis is a condition which, if

more than negligible in severity or extent, causes an individual to be worse off or to suffer damage. It is to

be distinguished from benign conditions such as pleural plaques’.

Comment & Conclusion

Shortly before Carder reached the Court of Appeal, we reported in edition 140 of BC disease news on the

High Court decision in Mayne v Atlas Stone Co Ltd, which concerned a multiple exposure asbestos-induced

diffuse pleural thickening case. The medical evidence in this claim was undisputed; pleural thickening

accounted for a 5% disability of an overall disability of between 70% and 80% and the defendant was

responsible for 8.16% of the 5% disability-so only 0.62% disability. It was also concluded that the individual

contribution to the pleural-thickening disability of any employer (including the defendant in this case)

would not have been perceptible by the deceased.

The judge found that the overall 5% disability attributable to asbestos was clearly actionable and the

defendant’s contribution of 8.16% of the overall 5% disability was small but nevertheless material. In

coming to this conclusion, the judge specifically stated:

‘The suggestion that a claimant seeking damages for asbestos-related disease must go on to prove in

addition that a particular defendant made a material contribution to his disease process, in the sense that

the contribution of itself gave rise to a discernible or miserable injury, is unwarranted and is in my view

unsupported by authority. Such a requirement would ignore the totality of the claimant’s exposure to

asbestos during his working life and the quantifiable disability caused by that exposure. It would not accord

with either the reality of this industrial disease or, as Stuart Smith LJ saw it, ‘common sense’. It would lead

in my view to uncertainty and to arbitrary results and unfairness, both to claimants and among

defendants’.


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The court held that if it accepted the defendant’s submissions that would mean the claimant had no cause

of action despite suffering an actionable injury and that this was never the intended outcome of the

decision of Holtby v Brigham & Cowan (Whole) Limited [2000] 3 All E.R.421 and that this did not lend

support to the defendant’s submissions.

The defendants in Carder and Mayne attempted to distinguish between contribution to a disease process

and contribution to the disability/symptoms. A material contribution to a condition which in itself makes

no difference to a claimant’s symptoms or prognosis is de minimis and not actionable. The claimants were

not appreciably or materially worse off.

This recent line of authorities in asbestos cases say that a material contribution to a condition in the

absence of contribution to symptoms or disability is sufficient to make someone ‘appreciably worse off’

for which damages can be paid and may reflect more on policy than legal principles. This will undoubtedly

be relied upon by claimants in other disease areas where de minimis arguments are raised.

Asbestos Fibres Can Move in Soil, Says New Study (BCDN Edition 157)

Last week, a new study by the Scripps Institution of Oceanography at the University of California, San

Diego, showed how asbestos fibres can move through sand and soil.14 15

The first phase of the study tested the long-held belief that asbestos waste piles are locked in place when

topped with soil. The study discovered that when organic acids from plants, fungi and bacteria coat

asbestos fibres, they can travel and move through sand and soil.

This obviously raises issues around the safety of asbestos waste piles within soil. Further research

continues.

Crackdown on Counterfeit Cigarettes Containing Asbestos (BCDN Edition 157)

Essex County Council and Trading Standards are in the process of leading a ‘crackdown’ on traders selling

counterfeit cigarettes.

The crackdown comes at a time where councils across the country are warning against the dangers of

counterfeit cigarettes, which have been found to contain asbestos, remains of dead flies, mould and even

excrement. The Local Government Association has said that fake cigarettes pose a fire risk, as well as

several risks to health.

Mark Flewitt, Executive Councillor for Housing, Planning and Public Protection Services in Southend-on-

Sea said:

14 Leigh Egan ‘Asbestos Fibers Can Move in Soil, Per New Study’ (Mesothelioma Lawyer Center, 20th September 2016) http://www.legalfutures.co.uk/latest-news/pi-cold-calling-ban-will-stay-place-says-sra-law-society-steps-attack-handbook-rewrite accessed 21st September 2016

http://www.legalfutures.co.uk/latest-news/pi-cold-calling-ban-will-stay-place-says-sra-law-society-steps-attack-handbook-rewrite

http://www.legalfutures.co.uk/latest-news/pi-cold-calling-ban-will-stay-place-says-sra-law-society-steps-attack-handbook-rewrite


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‘Some people view selling under-the-counter cigarettes as a victimless crime but Trading Standards teams

have previously found counterfeit cigarettes containing asbestos and human excrement in the past, posing

a massive risk to anyone smoking them.’

Recent Developments in Mesothelioma Treatment and Detection (BCDN Edition

158)

In edition 109 of BC Disease News we examined new mesothelioma research. Now we can report that in

August 2016, a unique drug derived from the Caribbean Sea squirt has shown promise in stopping the

growth of mesothelioma tumour cells.16

Researchers at the University of Vienna in Austria have discovered that trabectedin, a toxin the coral-like

animal uses against predators, may be an effective mesothelioma treatment. Group leader at the

University of Vienna, Walter Berger, has said it looks ‘very promising’ at this point.

In the study, published by the Molecular Cancer Therapeutics journal in early August, Berger’s team focus

on the development of novel strategies for therapy-refractory cancers, such as mesothelioma, brain

tumours and lung cancer. The study demonstrates how trabectedin serves as an effective chemotherapy-

like agent, which targets DNA and has been delivering an immune response. It also showed good synergy

when combined with cisplatin, a cytotoxic drug currently used in chemotherapy for cancer treatment.

Trabectedin could prove to be a major development in the treatment of malignant pleural mesothelioma.

Five sites in Italy are currently conducting the only clinical trial involving trabectedin and mesothelioma.

Early results are again said to be promising.

Elsewhere, there is new evidence that manipulating the process of protein synthesis inside cancer cells

could be vital to improving outcomes for certain mesothelioma patients.17

A new study, published in the Journal of the American Medical Association (JAMA) Oncology suggests that

using a drug to lower the levels of the amino acid, arginine, can slow the spread of pleural mesothelioma

and extend survival in patients who are deficient in a particular enzyme.

Malignant mesothelioma is highly resistant to most kinds of cancer treatments and patients are often at

a loss as to what to try next when chemotherapy, surgery and radiation fail. This new study suggests that

the new type of therapy could help conventional treatments to work more effectively.

The JAMA Oncology research demonstrates the importance of arginine, an amino acid necessary for

mesothelioma cells to produce the proteins that allow them to live and replicate.

16 Tim Povtak New Mesothelioma Drug Discovered in Sea Squirt Toxi, Asbestos.com, 30th August 2016 https://www.asbestos.com/news/2016/08/30/sea-squirt-produces-new-mesothelioma-drug-trabectedin/ accessed 28th September 2016. 17 Alex Strauss Attacking Pleural Mesothelioma From the Inside Out, 19th September 2016 http://survivingmesothelioma.com/attacking-pleural-mesothelioma-from-the-inside-out/ accessed 28th September 2016.

https://www.asbestos.com/news/2016/08/30/sea-squirt-produces-new-mesothelioma-drug-trabectedin/

http://survivingmesothelioma.com/attacking-pleural-mesothelioma-from-the-inside-out/


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A multi-centre, randomised clinical trial demonstrated that 68 of 201 mesothelioma tumours were

deficient in argininosuccinate synthase (ASS1), an enzyme necessary for arginine synthesis.18 In ASS1-

deficient patients, using a drug to artificially reduce the amount of arginine in the body made their

malignant mesothelioma cells more responsive to the effects of standard chemotherapy treatments. After

four months of weekly doses of the arginine-lowering drug, more than half of the 68 mesothelioma

patients experienced stability.

Elsewhere, this month, a new case report has led to researchers’ optimism about the potential benefits

of a highly targeted radiotherapy technique called Intensity Modulated Radiotherapy (IMRT) in people

with malignant pleural mesothelioma.19 IMRT is a form of radiotherapy that allows radiologists to precisely

deliver radiation in a shape that conforms to the shape of a mesothelioma tumour. This is important

because mesothelioma tumours grow on the pleural membrane and tend to be irregularly shaped, which

makes it difficult to treat them with less conformal radiotherapy techniques. Furthermore, tumours are

typically located adjacent to critical organs such as the lungs and heart. Radiotherapy plans must take this

into account to protect tissues from radiation damage.

The Italian case report details the treatment of a 73-year-old mesothelioma patient who was administered

a potentially lethal dose of radiation into his tumour, following a relapse 10 months after a surgery and

chemotherapy. He suffered no serious side effects from the high dose of radiation and there was no

progression in the mesothelioma in the 14 months after the IMRT. The patient is still alive 32 months after

diagnosis.

Finally, it is not only the treatment of mesothelioma which has seen recent developments, it has also

recently been reported that breath screening may aid in detecting early mesothelioma.20

In a study at Ghent University, researchers analysed the breath of 66 study participants, including 23 with

malignant pleural mesothelioma, for volatile organic compounds.

The study found that people with mesothelioma (and those who have been exposed to asbestos) tend to

exhale different levels of volatile organic compounds than healthy people do.

According to a summary of the study published in the Journal of Breath Research, the test was 76%

accurate at distinguishing the mesothelioma patients from either the asbestos-exposed people or the

healthy controls.

18 Alex Strauss Attacking Pleural Mesothelioma From the Inside Out, 19th September 2016 < http://survivingmesothelioma.com/attacking-pleural-mesothelioma-from-the-inside-out/> accessed 28th September 2016. 19 Alex Strauss, Italian Mesothelioma Patient Doing Well More Than a Year After IMRT, 24th September 2016 < http://survivingmesothelioma.com/italian-mesothelioma-patient-doing-well-more-than-a-year-after-imrt/ > accessed 28th September 2016. 20 Alex Strauss, Breath Screening May Help Detect Early Mesothelioma, 27th September 2016 < http://survivingmesothelioma.com/breath-screening-may-help-detect-early-mesothelioma/ > accessed 28th September 2016.

http://survivingmesothelioma.com/attacking-pleural-mesothelioma-from-the-inside-out/

http://survivingmesothelioma.com/italian-mesothelioma-patient-doing-well-more-than-a-year-after-imrt/

http://survivingmesothelioma.com/breath-screening-may-help-detect-early-mesothelioma/


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When it came to distinguishing between the asbestos-exposed people and those with mesothelioma, the

test had an 87% accuracy.

At present, there is no reliable way to screen for mesothelioma. Belgian researches say they are hopeful

that breath analysis may improve the odds. The paper concludes:

“Breath analysis by MCC/IMS allows malignant pleural mesothelioma patients to be discriminated from

controls and holds promise for further investigation as a screening tool for former asbestos-exposed

persons at risk of developing malignant pleural mesothelioma.”21

The study could prove vital in the future early detection of mesothelioma in patients which may improve

survival rates.

New Mesothelioma Treatment Shows Positive Outcomes (BCDN Edition 167)

This week, at the 17th World Conference on Lung Cancer, US drug company Merck announced that its

new cancer treatment Keytruda (also known as Pembrolizumab) has shown positive clinical outcomes in

difficult to treat cancers such as lung cancer and mesothelioma.22

Keytruda is an immunotherapy treatment for cancers which have spread or cannot be removed by

surgery. It acts by targeting and blocking a protein called PD-1 on natural T killer cells within the body.

This triggers the T cells to locate and attack cancer cells.

We have now started to see claims for the private cost of Keytruda treatment in mesothelioma claims,

typically at around £70,000.

In a future feature we look at this new treatment in detail. Does it have any clinical benefit in the treatment

of asbestos related lung cancer and / or mesothelioma? What are its costs? What are the typical outcomes

of treatment and how can quantum overall be affected by such outcomes? What must a claimant prove

in any claim for private medical treatment of this type?

Feature: The Ogden Discount Rate And Its Impact On Asbestos Related

Mesothelioma Claims (BCDN Edition 168)

INTRODUCTION

21 Lamote, Kevin, et al, “Detection of malignant pleural mesothelioma in exhaled breath by multicapillary column/ion mobility spectrometry (MCC/IMS)”, September 26, 2016, Journal of Breath Research, Volume 10, No. 4. 22 N.J. Kenilworth, ‘Updated KEYTRUDA (pembrolizumab) Data in Small Cell Lung Cancer and Mesothelioma Presented at 17th World Conference on Lung Cancer’ (Business Wire 6 December 2016)< http://www.businesswire.com/news/home/20161206005400/en/Updated-KEYTRUDA%C2%AE-pembrolizumab-Data-Small-Cell-Lung> accessed 9 December 2016.


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Damages in personal injury claims are designed to provide full compensation to claimants for losses

suffered as a result of someone’s wrongful actions - compensation should neither result in a claimant

being over or under-compensated.

The Ogden Tables are designed to assist in the calculation of lump sum damages for future losses in

personal injury and fatal accident claims - losses such as net earnings, cost of medical treatment, care,

and pension loss. Multipliers are applied to the present day value of a future annual loss to produce a

lump sum award. Lump sum awards mean that there is accelerated receipt of future losses not yet

incurred and so the lump sum must be adjusted to take into account the interest that can be earned on

the lump sum before it needs to be spent. This adjustment is made by applying a ‘discount rate’. The

discount rate reflects the interest that would be earned on the lump sum payment based on safe

investment within Index Linked Government Stock23. The Ogden Tables also take into account mortality

risks, and provide discounts for contingencies to try and ensure a claimant is fully compensated - but not

over compensated, nor under compensated. The tables are currently in their 7th edition and set out

different multipliers based on different discount rates ranging between - 2.0% to +3.0%.

The discount rate is set by the Lord Chancellor under powers provided by s.1 of the Damages Act 1996 (as

amended). The current 2.5% discount rate has been in place in England and Wales since July 2001. The

rate represents a rate of return over and above inflation.

It has long been argued by claimant representatives that the current discount rate is out of date and does

not reflect the substantial reduction in interest from Index Linked Government Stock and so its use results

in under compensation of claimants.

The converse argument is that claimants do not always invest cautiously in Government Stock and may

invest in mixed portfolios, including higher risk investments. Government Stock does not reflect the reality

of how claimants actually invest. Therefore it is argued that the current rate of 2.5% is still appropriate or

alternatively is set too low and results in over compensation of claimants.

The discount rate has long been under Government review. There were two MoJ consultations on the

issue in 20124 and 20135 to which the Government never responded. Apparently as a result of the threat

of legal action against it by APIL, the Government last week said it will announce the results of its review

by 31 January 2017 - although any change in the rate will require legislative implementation via s. 1 of the

Damages Act.

Applying different discount rates can have a significant impact on the lump sum awards made. The 2013

MoJ consultation provided the following example of an ongoing future loss of £50,000 p.a. for a male for

life. A 10 year old claimant would be awarded £1.7m if the discount rate were 2.5% compared to £3.2m if

the rate were 0.5%. A 60 year old claimant would be awarded £0.9m under a 2.5% rate compared to

£1.2m under a 0.5% rate. The following chart is reproduced from the 2013 MoJ Consultation.

23 These are Government bonds issued to finance its borrowing requirements and considered to be among the safest assets to hold. The Government sell bonds with a promise that they will pay back the money invested at a future date at an agreed rate of interest. These bonds can also be linked to the Retail Price Index (RPI) and payments adjusted in line with changes in the RPI.


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SO WHAT MIGHT A NEW DISCOUNT RATE BE SET AT?

There has been some judicial insight. In Simon v Helmot24 [2012], a Guernsey case to which the Damages

Act did not apply, differential discount rates were set-at 0.5% for non-earnings related losses and 1.5%

for earnings-related losses. In Thomson v Thompson [2015]25, in a judgment given in the Bermuda

Supreme Court but with the claimant living in the UK, it was decided, having heard evidence from an

actuary, that the appropriate discount rate in the UK for future losses was -0.5% for heads of damage

likely to be affected by price inflation and -2.5% for heads of damage likely to be affected by real earnings

increases-i.e. future loss of earnings.

We predict one of 3 outcomes-the rate will remain the same, or it will go down or it will go up! Whatever

happens it is hoped that a single discount rate will remain rather than several different rates depending

on the head of loss considered.

The Government as compensator for bodies such as the NHS will understandably be reluctant to reduce

the discount rate.

IMPACT ON MESOTHELIOMA CLAIMS

How will a changed Ogden discount rate impact on quantum in mesothelioma claims?

24 [2012] UKPC 5 25 [2015] SC (Bda) 44 Civ (17 July 2015)


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We look at a worked example below and provide a Fatal Damages Calculator and a simple quantum ready

reckoner table to allow you to carry out your own quantum assessments applying different discount rates.

Example of a fatal mesothelioma claim 70 year old deceased male

Let us take as an example a male who dies from asbestos related mesothelioma at age 70. The medical

evidence is that the deceased had a normal life expectancy and would have lived for a further 17 years to

age 87 but for the mesothelioma. He was married and a claim is pursued by his widow on behalf of the

estate and as a dependent. She was aged 60 at the time of death and has a normal life expectancy to age

88. She would therefore have outlived the deceased in any event. Her dependency upon the deceased

would have come to an end on his death when he reached 87.

The widow’s dependency on the deceased’s pension is valued at £10,000 p.a.

There is also a dependency claim on services valued at £1,500 p.a. which would have existed for 10 years

up to the deceased reaching age 80.

An assessment of damages takes place 3 years after death - so the deceased’s assumed age is 73.

The claim is valued at just under £277,000 (ignoring interest) based on the following heads of loss:


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How would this valuation change based on differing discount rates? The only affected heads of loss are

for dependency on pension - currently valued at £145,164 - and for dependency on services -currently

value at £13,334. The other heads of loss valued at £117,980 (or 43% of the claim overall) remain

unaffected.

We show the changes according to different discount rates in the table and figure below:


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Mesothelioma fatal damages tool

The HSE has reported that the majority of mesothelioma deaths in recent years has been in those aged

75-8026. Most fatal mesothelioma claims arise when the deceased is retired. Ogden Table 28 multipliers

are typically used with the ‘but for’ life expectancy or duration of services dependency based on medical

evidence and taken as term certain27. For a full explanation of the methodology for assessment of

damages in fatal claims please see editions 130 of BC Disease News here.

Our mesothelioma fatal damages tool below can be used to carry out your own assessments of quantum

in relatively straightforward cases applying differing discount rates. Just enter some brief factual details

of the claim, your financial and services multiplicands and select your discount rate-the tool will do the

rest.

The tool can be accessed here.

Ready Reckoner Table for fatal mesothelioma claims

Based on the same set of facts as our example above, but applying different ages for the deceased at

death (5 year brackets between ages 60-80), we set out below a ready reckoner table showing how

quantum changes with differing discount rates.

26 Health and Safety Executive, ‘Mesothelioma Statistics, http://www.hse.gov.uk/statistics/causdis/mesothelioma/mesothelioma.pdf?pdf=mesothelioma 27 See Knauer v Ministry of Justice [2016] UKSC9

https://www.bc-legal.co.uk/images/pdf/130%20BC%20Disease%20News%20-%2026.02.2016%20Edition%20130.pdf

https://www.bc-legal.co.uk/quantum.html

http://www.hse.gov.uk/statistics/causdis/mesothelioma/mesothelioma.pdf?pdf=mesothelioma


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These changes are also represented in the figure below.

Figure: Varying quantum assessments in fatal mesothelioma aged by age and discount rates

More detailed analysis, including how the value of a typical mesothelioma claim changes with each 0.5%

change in the discount rate by age and the potential overall range of change, can be found here.

https://www.bc-legal.co.uk/bcdn/10-detailed-analysis-on-a-typical-mesothelioma-claim-valuation-changes-against-discount-rate.html


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IMPACT ON A BOOK OF ASBESTOS CLAIMS

We have built a simple to use tool to help determine how quantum and reserve requirements might alter

across a book of asbestos related mesothelioma and lung cancer claims-living and fatal. For more details

please contact Boris Cetnik.

Living Mesothelioma Claims: Andreou v S Booth Horrocks & Sons Ltd (2017) (BCDN

Edition 172)

In a quantum only trial before the High Court, HHJ Walden-Smith assessed various heads of damage

claimed by a 76-year-old man who was terminally ill with mesothelioma and adjourned, until after his

death, the assessment of the value of the services he would have provided to his wife but for the disease.

The claimant was diagnosed with mesothelioma in 2016. He then brought proceedings against the

defendant, his former employer, in respect of exposure to asbestos in the early 1960s when he was a

heating and plumbing engineer. The defendant admitted liability. The claimant’s health had sharply

declined and he was unable to attend trial. It was estimated he would live for a few more months with his

symptoms becoming increasingly debilitating. His ‘but for’ life expectancy in the absence of

mesothelioma, was estimated to age 82-reduced from normal due to a history of heavy smoking.

The claimant and his wife, owned a 39-room hotel, three rental properties and their home which included

10 acres of land in which they grew fruit and vegetables used at the hotel or sold. The claimant contended

that before he became ill he was always on call to deal with any maintenance or security issues at the

hotel, he spent about two hours per week maintaining the rental properties and worked on the land for

five to six hours every day in spring and summer, somewhat less in winter. He claimed that as a result of

the mesothelioma he had to rely on paid gardeners and his granddaughter to carry out these tasks.

Damages were agreed in respect of loss of income, care costs, travel and sundry expenses but disputes

arose as to the cost of up keeping the properties, equipment that had already been purchased, future

losses, future aids and equipment, lost services and lost years financial losses.

Expenses and Upkeep

In relation to the upkeep of the claimant’s properties, the claimant estimated that he spent five to six

hours per day, seven days a week in the summertime working on his properties. This was reduced to three

to five hours per day for three to four days per week in the winter time. For this he sought £6,603.84. It

was argued that as a result of the mesothelioma he had to rely heavily on gardeners, and also his

granddaughter. Some receipts / invoices were attached to his statement of evidence of work being carried

out by others. The defendant offered, for the purposes of settlement, £4,500.

The court held that it was not sufficient for the claimant simply to produce invoices and say that the work

in respect of which he was claiming was work that otherwise he would be doing.

mailto:[email protected]?subject=%20Ogden%20Discount%20Rate%20Changes%20and%20Asbestos%20Claims


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HHJ Walden-Smith also pointed out that the land provided an income and as such had a partial business

purpose. As such she held that the land was ‘part business and part expensive hobby, not simply a garden

which requires maintenance’.

For these reasons, the court reduced the amount awarded to £4,500.

Equipment

The court then considered the cost of the equipment that the claimant had already purchased, for

example, he had a lift installed in his house to help him get between the three floors, which cost £84,000.

The defendant contended that chair lifts would have sufficed. The claimant had also bought a reclining

chair for £2,700, however, a nursing expert said that a £1,000 chair would have sufficed. In addition to

this, he had purchased two air purifiers, which he claimed he needed to help prevent infection.

The court concluded that there was a balance to be struck – the claimant was obliged to act reasonably in

his claim, but there was no requirement to take the cheapest option. However the court was also entitled

to consider whether the cost of something was wholly disproportionate to any perceived benefit. In

determining the reasonableness of incurring of a cost the court can consider the cost benefit.

The Judge did not find this head of loss an easy issue to resolve. It was not a viable defence to the

defendant to say that just because the chairlift was a viable and cheaper option then the cost of installing

the lift should be disallowed. The issue was whether the claimant had acted reasonably and the standard

of reasonableness is not a high one. However in this case there was no real additional benefit derived

from the lift compared to a chairlift. It was a cost wholly disproportionate to any perceived benefit. As

such the claimant was awarded the cost of a chair lift, £6,000, but not the lift installation. Similarly, the

court found that £1,000 was the appropriate award in relation to the reclining chair. However, it was

found that the air purifiers were a reasonable purchase and the claimant was awarded £1,708 in respect

of them.

For future aids and equipment, the claimant claimed for items including a bath lift, a mobility scooter and

an adjustable bed. The defendant argued that the fact that the claimant had not yet purchased such items,

yet could afford to, indicated that he did not need them. However, the court held that the claimant would

become progressively and significantly weaker and so would need the equipment, with the exception of

the bed which they said he would have bought if he had needed it. As such, he was awarded £1,800.

Lost Years Income Claim

The court then came to consider the lost years claim on income for which the claimant sought £203,000

and which the defendant assessed was at no more than £100,000 as there was nothing in the evidence

before the court, save for the state pensions, that established the level of the income from the hotel and

the three properties or with respect to the private pensions.

The court found this approach to be too harsh. The judge stated at para 77:


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‘It has to be accepted that the very nature of these claims are expedited because of the ferocious nature

of the disease itself, and it seems to me that the evidence that the claimant has provided with respect to

his income is sufficient to give a clear indication of the annual net income of the claimant even though it is

a fluctuating income’.

The court averaged the accounts over the last four years and came to a sum of £75,924 as the average

annual figure for the claimant’s income but this figure reducing in later years. The judge set out the

appropriate split multipliers for the lost years claim and applied a conventional reduction of 50% to the

losses.

Lost Years on Services

It appears the claimant also sought recovery for loss of services during the ‘lost years’-although the

amount claimed is not apparent from the judgement. Such head of loss is not recoverable-see Phipps v

Brooks Dry Cleaning Services Ltd.28 The defendant argued that the claimant had elected to bring a living

claim now and therefore should be dealt with now and as it was not something recoverable in law it should

be dismissed.

HHJ Walden-Smith held:

‘This is a proper claim that will be made in due course. In the circumstances, while it is clear from the

authorities that this is not something that this court can order, given that it has not been agreed between

the parties, I will adjourn this part of the claim in order that it can be dealt with post mortem. It would not

be right in my judgment for the claimant or the claimant’s estate or his widow in due course not to be able

to make a claim for something to which he is entitled simply by reason of it having been brought into these

proceedings. This discrete matter will therefore be adjourned’.

Dependency claims on services are of course recoverable in fatal claims. This approach to claims for lost

years may have wider implications for the handling of living mesothelioma claims. Firstly, it may mean

that insurers will need to revalue and reserve such claims on a ‘fatal basis’ to include a dependency claim

on services. Similarly, it may also mean that insurers are having to factor in a sum for a future dependency

claim in any offers to settle. This will also raise issues regarding interim payments to claimants – are these

to be assessed based on only the living element of the claim or can interim damages be paid based on an

anticipated dependency claim as well?

Feature: Keytruda Treatment Costs in Mesothelioma Claims (BCDN Edition 176)

INTRODUCTION

28 [1996] P.I.Q.R. Q100.


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In edition 167 of BC Disease News we reported on a new drug cancer treatment called Keytruda (also

known as Pembrolizumab) which, according to its manufacturers Merck, has shown positive clinical

outcomes in difficult to treat cancers such as lung cancer and mesothelioma.29

We are now seeing private treatment costs of Keytruda in an increasing number of living mesothelioma

claimants which are typically valued at around £70,000 or more. In this feature, we consider what

Keytruda is and whether there is evidence that it is an effective treatment in mesothelioma claims.

This feature is abbreviated from a longer paper which also addresses the legal recoverability of such

treatment costs-for a copy of the paper please email [email protected]

WHAT IS KEYTRUDA?

Keytruda is a new immunotherapy drug treatment which ‘wakes up’ the body’s own immune system to

fight cancer cells.

Cancer cells can be very adept at evading detection by the body’s immune defences and, in particular, our

‘T-cells’ which hunt down and kill foreign cells. The cancer cells disrupt certain signalling pathways of the

immune system so that the T cells are effectively switched off and the cancer cells can proliferate.

Keytruda falls within a class of immunotherapy drugs known as ‘checkpoint inhibitors’ which work by

making cancer tumours more visible to the immune system. PD-L1, or programmed death-ligand 1, is a

protein that has been shown to play a role in supressing the immune system and disguising the cancerous

cells from the immune system defences. According to Merck, Keytruda blocks an interaction between a

protein on the surface of T-cells, known as PD-1 and PD-L1 found on the surface of cancer cells so allowing

activation of the T-cells to find and kill cancer cells.

Keytruda was originally developed for treating melanoma skin cancer that has spread around the body,

and was approved by The National Institute for Health and Care Excellence (NICE) for use in England in

September 2015. When it was suggested that the treatment be used for non-small cell lung cancer

(comprising around 87% of lung cancers in the UK)30 patients, NICE rejected the proposal on the grounds

that there was no robust data on its long term benefits and it was not cost-effective.31 However, Merck

then presented newer data and offered a discounted price for the drug. Since December 2016, it has been

29 Cancer Research UK. Types of lung cancer. (2015). Available at: http://www.cancerresearchuk.org/about-cancer/type/lung-cancer/about/types-of-lung-cancer (Accessed: 8th December 2016) 30 McKee, S. NICE rejects MSD’s Keytruda for lung cancer. (2016). Available at: http://www.pharmatimes.com/news/nice_rejects_msds_keytruda_for_lung_cancer_1153495 (Accessed: 8th December 2016) 31 NICE recommends new lung cancer drug pembrolizumab | News and features | News | NICE. Available at: https://www.nice.org.uk/news/article/nice-recommends-new-lung-cancer-drug-pembrolizumab (Accessed: 10th December 2016)


http://www.cancerresearchuk.org/about-cancer/type/lung-cancer/about/types-of-lung-cancer

http://www.cancerresearchuk.org/about-cancer/type/lung-cancer/about/types-of-lung-cancer

http://www.pharmatimes.com/news/nice_rejects_msds_keytruda_for_lung_cancer_1153495

https://www.nice.org.uk/news/article/nice-recommends-new-lung-cancer-drug-pembrolizumab


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recommended for routine NHS use in non-small cell lung cancer patients displaying PD-L132 and was

placed on the Department of Health (UK) Cancer Drugs Fund List.33

In Europe, the European Medicines Agency (EMA) approved the use of Keytruda in melanoma and non-

small cell lung cancer where the patient had been treated with at least one chemotherapy regime.34

Similarly, in October 2016, the Food and Drug Administration in the US approved Keytruda as a first-line

treatment for non-small cell lung cancer that express PD-L1.35 (First-line treatments are those that are

generally accepted by the medical establishment for initial treatment of a given type and stage of cancer).

Last month, Merck announced its intention to ‘solidify its leading position’ for Keytruda in lung cancer

which it claims has the potential to become a foundational therapy for other cancers as well.36

Keytruda is now also being investigated and trialled as a potential treatment for mesothelioma. However,

Keytruda is not a curative treatment. The purpose of the treatment is to limit tumour growth and increase

remaining life expectancy.

THE COST

Keytruda is typically administered via a drip into a vein over 30 minutes. The treatment is repeated every

3 weeks for as long as it is seen to be effective or until side effects cause discontinuation of treatment.

The cost of Keytruda treatment is typically claimed for 2 cycles of treatment at around £70,000 as follows:

Cycle 1

- Oncologist & clinic fees and blood tests & CT scans providing a baseline measure of

mesothelioma activity = £2,000

- 6 doses of Keytruda at approximately £5,500 per dose = £33,000

Cycle 2

- CT scan to assess treatment outcomes=£2,000

- 6 further doses of Keytruda if scans show response = £33,000

32 National Cancer Drugs Fund (CDF) List< https://www.england.nhs.uk/wp-content/uploads/2017/01/national-cdf-list-v1-19.pdf> accessed 7 February 2017. 33 European Medicines Agency, ‘EPAR Summary For The Public’ < http://www.ema.europa.eu/docs/en_GB/document_library/EPAR_-_Summary_for_the_public/human/003820/WC500190993.pdf> accessed 7 February 2017. 34 U.S. Food & Drug Administration, ‘Pembrolizumab (KEYTRUDA) Checkpoint Inhibitor’ (Approved Drugs October 24 2016)< http://www.fda.gov/Drugs/InformationOnDrugs/ApprovedDrugs/ucm526430.htm> accessed 7 February 2017. 35 U.S. Food & Drug Administration, ‘Pembrolizumab (KEYTRUDA) Checkpoint Inhibitor’ (Approved Drugs October 24 2016)< http://www.fda.gov/Drugs/InformationOnDrugs/ApprovedDrugs/ucm526430.htm> accessed 7 February 2017. 36 Bill Berkrot, ‘Merck 2017 Forecast Reassuring; Full-Speed Ahead With Keytruda’ (Reuters 2 February 2017)< http://uk.reuters.com/article/us-merck-co-results-idUKKBN15H19N> accessed 7 February 2017

https://www.england.nhs.uk/wp-content/uploads/2017/01/national-cdf-list-v1-19.pdf

https://www.england.nhs.uk/wp-content/uploads/2017/01/national-cdf-list-v1-19.pdf

http://www.ema.europa.eu/docs/en_GB/document_library/EPAR_-_Summary_for_the_public/human/003820/WC500190993.pdf

http://www.ema.europa.eu/docs/en_GB/document_library/EPAR_-_Summary_for_the_public/human/003820/WC500190993.pdf

http://www.fda.gov/Drugs/InformationOnDrugs/ApprovedDrugs/ucm526430.htm

http://www.fda.gov/Drugs/InformationOnDrugs/ApprovedDrugs/ucm526430.htm

http://uk.reuters.com/article/us-merck-co-results-idUKKBN15H19N


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If the treatment response after 2 cycles was positive and without adverse toxicity, then further cycles of

treatment would follow. In such cases, and where there are also likely to be associated travel and

accommodation costs, the claim is likely to be considerably higher than £70,000.

SO DOES KEYTRUDA WORK IN MESOTHELIOMA CASES?

In April 2015 the preliminary results of a small clinical trial-known as the Phase IB Keynote-028 trial-

involving treatment of 25 mesothelioma patients with Keytruda were announced at the American

Association for Cancer Research Annual Meeting. The preliminary results were also published in a paper

in Cancer Research.37 The trial is investigating safety, tolerability, and preliminary efficacy of Keytruda.

Most of the 25 patients had received at least one prior course of chemotherapy, but had developed

tumours that were continuing to grow. The patients all had PD-L1 expression in at least 1% of their tumour

cells. The patients were given Keytruda doses of 10 mg/kg every 2 weeks for 6 months. Preliminary results

indicated that the drug improved clinical outcomes for these patients.38 Six patients had a positive

response in tumour size (24%), the cancer did not change in 13 patients (52%) and the cancer grew in 6

patients (24%). This suggests a disease control rate of 76%, representing the total of those whose cancers

responded to treatment and those whose cancers did not grow. Tumour shrinkage in the responders was

observed as early as 8 weeks after the first dose. The Keynote 28 trial is ongoing and should be complete

by August 2017 with further results to be published after that.

Further results, including some survival data, from Keynote 028 were reported at the International

Association for the Study of Lung Cancer (IASLC) 17th World Conference on Lung Cancer in December

201639. As of the 9th June 2016, median duration of follow-up was 18.7 months (range 1.5-24.6 months),

and 4 patients were still receiving treatment. The response rate (proportion of patients with tumour

shrinkage) was 28% (7 of 25 patients) and 48 % of patients had stable disease, resulting in a disease control

rate of 76%. [Compared to the earlier published findings, there is now one more patient whose tumour

shrank and one fewer with stable disease, giving the same rate of disease control]. It should be noted that

the definition of ‘stable’ adopted within the Keynote-028study includes those patients whose tumours

have grown within 25%. This group may include patients with slow progression disease, which may be the

natural course of the tumour and so the drug, in this instance, will not have given any benefit. The median

duration of response (time for which the tumour remained shrunk) was 9.2 months (range 2.4 months to

20.5+ months). Median progression-free survival was 5.8 months and 6- and 12- month progression free

survival rates were 50 % and 25 % respectively. Median overall survival was 18.0 months, with 6- and 12-

month overall survival rates of 83.5 % and 62.6 % respectively. However, no additional data, such as

survival in patients being given a different treatment type, were reported for comparison. [The figures

above are taken directly from the abstract of the conference report. Other sources, including Merck

37 Alley, E. W. et al. Abstract CT103: Clinical safety and efficacy of pembrolizumab (MK-3475) in patients with

malignant pleural mesothelioma: Preliminary results from KEYNOTE-028. Cancer Res 75, CT103–CT103 (2015).

38 Potential Immune Therapy for Mesothelioma. American Accosiation for Cancer Research: Cancer Discov (2015). doi:10.1158/2159-8290.CD-NB2015-067 39 Alley, E. et al. OA13.03 Long-Term Overall Survival for Patients with Malignant Pleural Mesothelioma on Pembrolizumab Enrolled in KEYNOTE-028. Journal of Thoracic Oncology 12, S294 (2017). Available at http://www.jto.org/article/S1556-0864(16)31543-X/fulltext (Accessed 19 February 2017)

http://www.jto.org/article/S1556-0864(16)31543-X/fulltext


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Newsroom, quote slightly different figures, such as the overall response rate of 20%, 5 out of 25

patients]40.

KEYNOTE 158, a larger, phase 2 Keytruda trial41 that includes mesothelioma patients42 is currently

underway, and is still recruiting participants. It is estimated that there will be 1100 participants in total,

though only some of these will be mesothelioma patients (mesothelioma is one of 11 types of tumour to

be included). Primary data is expected to be collected by September 2017, with the study estimated to be

completed by May 2019. There are not yet any publications of data from this trial.

Another phase 2 trial, NCT02399371, by the University of Chicago and the National Cancer Institute, aims

to investigate whether PD-L1 will predict the response of mesothelioma tumours (shrinking) to Keytruda43 44. This study is currently recruiting participants, and is expected to include 65 mesothelioma patients. In

part A of the study, the response rate (proportion of patients whose tumours respond) of Keytruda on all

mesothelioma patients will be assessed. If a particular amount, or threshold, of PD-L1 presence on the

tumour is identified as increasing the tumour response, part B of the trial will investigate the response

rate among a PD-L1 positive population that meets this threshold. The study will last for 3 years, and will

also investigate overall survival, progression-free survival and the disease control rate. Patients receive

200 mg of the drug intravenously over 30 minutes on day 1, and treatment is repeated every 21 days for

up to 24 months in the absence of disease progression or unacceptable toxicity. After the completion of

the study treatment, patients will be followed for up to 30 days (or 90 days for serious adverse effects),

every 8 weeks until the patient’s disease progresses or they start a new anti-cancer treatment, and then

every 12 weeks for 3 years. Some interim findings from this trial were announced at the 17th World

Conference on Lung Cancer45. Of 34 patients enrolled in May/June 2016, the median progression-free

survival was 6.2 months. Median overall survival is not yet reached. There were partial responses in 7

patients (21 %), stable disease in 19 (56 %), progression in 6 (18 %) and early death in 2 (6 %). These data

give a disease control rate of 76 %. PD-L1 expression did not correlate with response. An optimal PD-L1

threshold for drug activity could not be established from this small sample. This appears to be the first

report of PD-L1 properties of the tumour and response to Keytruda.

40 Merck newsroom, Updated Keytruda (pembrolizumab) Data in Small Cell Lung Cancer and Mesothelioma Presented at 17th World Conference on Lung Cancer), December 6, 2016 http://www.mercknewsroom.com/news-release/oncology-newsroom/updated-keytruda-pembrolizumab-data-small-cell-lung-cancer-and-mesoth (Accessed 20 February 2017) 41 [A phase 1 trial has an emphasis on safety and investigates what the most frequent and serious adverse effects

from the drug are, and may also investigate how the drug is metabolized and excreted. A phase 2 trial gathers

preliminary data on effectiveness of the drug. Participants receiving the drug may be compared to similar

participants receiving a different drug treatment or a placebo.]

42 Study of Pembrolizumab (MK-3475) in Participants With Advanced Solid Tumors (MK-3475-158/KEYNOTE-158) - Full Text View - ClinicalTrials.gov. Available at: https://clinicaltrials.gov/ct2/show/NCT02628067 . (Accessed: 10th December 2016) 43 Pembrolizumab in Treating Patients With Malignant Mesothelioma https://clinicaltrials.gov/ct2/show/NCT02399371 (Accessed: 19th February 2017) 44 Mesothelioma Cancer Alliance, https://www.mesothelioma.com/treatment/clinical-trials/NCT02399371/ (Accessed: 19th February 2017) 45 Kindler, H. et al. OA13.02 Phase II Trial of Pembrolizumab in Patients with Malignant Mesothelioma (MM): Interim Analysis. Journal of Thoracic Oncology 12, S293–S294 (2017).

http://www.mercknewsroom.com/news-release/oncology-newsroom/updated-keytruda-pembrolizumab-data-small-cell-lung-cancer-and-mesoth

http://www.mercknewsroom.com/news-release/oncology-newsroom/updated-keytruda-pembrolizumab-data-small-cell-lung-cancer-and-mesoth

https://clinicaltrials.gov/ct2/show/NCT02628067


https://www.mesothelioma.com/treatment/clinical-trials/NCT02399371/


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Results from a phase II study of Nivolumab (Opdivo), another PD-L1/PD-1 inhibitor, were also announced

at the conference46. Using data from 29 patients, a clear correlation between PD-L1 expression and

response was observed, whereby patients with greater PD-L1 expression were more likely to respond.

The Canadian Cancer Trials Group also has a phase 2 trial that is recruiting participants47. The study will

primarily investigate the progression free survival time, which is the time from when the patient is

allocated a treatment type (Keytruda alone, Keytruda with other drugs, or other drugs) until disease

relapses or progresses. The time frame of the trial is 32 months and 126 patients are expected to be

enrolled. The study is estimated to be completed in December 2019.

There are no phase 3 trials of Keytruda for mesothelioma at this stage, though data from phase 3 trials for

non-small cell lung cancer is available48 and phase 3 trials of other immunotherapy treatments for

mesothelioma are underway49.

The current data published from studies of Keytruda and mesothelioma relates to overall survival time

and to progression free survival. Publications have not included details of the patients’ symptoms and

quality of life, though some patients who responded to treatment have posted articles online describing

symptom improvement50. In addition, there does not appear to be any available data that indicates the

effectiveness of treatment for different sub-groups of patients, broken down by age or disease severity,

for example.

One area of ongoing investigation is Keytruda’s mechanism of acting as a PD-1 inhibitor and whether it

can be effective in mesothelioma tumours that do not show a positive PD-L1 expression. If there is no PD-

L1 involvement from the tumour, how can Keytruda act?

IS PD-L1 EXPRESSION REQUIRED?

An article discussing the preliminary results of the 028 trial51 identified there might not be a correlation

between PD-L1 expression and positive responses and ‘further research is needed to identify the patients

most likely to benefit from the drug. PD-L1 expression in tumour cells may be a potential biomarker, but

46 Quispel-Janssen, J. et al. OA13.01 A Phase II Study of Nivolumab in Malignant Pleural Mesothelioma (NivoMes): with Translational Research (TR) Biopies. Journal of Thoracic Oncology 12, S292–S293 (2017). 47 Pembrolizumab in Patients With Advance Malignant Pleural Mesothelioma https://clinicaltrials.gov/ct2/show/record/NCT02784171 (Accessed 20 February 2017) 48 Reck, M. et al. Pembrolizumab versus Chemotherapy for PD-L1–Positive Non–Small-Cell Lung Cancer. New England Journal of Medicine 375, 1823–1833 (2016). 49 A mesothelioma journal, Phase 3 mesothelioma trial due in the US in 2017 https://ajandray.wordpress.com/category/mesothelioma-treatments/research-into-new-treatments/ (Accessed 20 February 2017) 50 Mesothelioma survivor praises Keytruda for fresh optimism, September 9, 2016 https://www.asbestos.com/blog/2016/09/09/mesothelioma-survivor-praises-keytruda-optimism/ 51 Published in Cancer Discovery, D. Ross Camidge, MD, PhD, Director of the University of Colorado Comprehensive Cancer Centre’s thoracic oncology clinical program

https://clinicaltrials.gov/ct2/show/record/NCT02784171

https://ajandray.wordpress.com/category/mesothelioma-treatments/research-into-new-treatments/

https://www.asbestos.com/blog/2016/09/09/mesothelioma-survivor-praises-keytruda-optimism/


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whether it truly predicts therapeutic benefit or is merely prognostic – providing information on disease

outcome independent of therapy – remains to be established ’52.

Another study, of a different PD-L1/PD-1 inhibitor, found a clear correlation between PD-L1 expression

and response, using data from 29 patients. However, the numbers of patients with the greatest amount

of PD-L1 expression were small (3 patients). Data from larger study groups is needed. If the data suggests

that the response to Keytruda does not depend on the amount of PD-L1 expression, further studies will

be required to determine which features of the tumours are associated with response to Keytruda, so that

those patients that will benefit may be identified.

A review paper by Elly Marcq of the Centre for Oncological Research in Antwerp53, considers studies up to

September 2015 which looked at PD-L1 expression in mesothelioma. The results were as follows:

It can be seen that the percentage of patients who were found to have a positive PD-L1 expression ranged

from 20-70 %. Marcq stated on the available evidence that PD-L1 expression ‘can vary over time…and that

it is so far unknown if it is a conclusive biomarker for PD-1 and/or PD-L1 targeting immunology’.54

A research group from the University of Chicago has published plans for a study that aims to investigate

the mechanism of action of Keytruda, by comparing treated and untreated samples of pleura, and to

identify features of the tumour that may predict benefit or resistance to Keytruda55. An article on the

proposed study begins by noting that, ‘Although PD-1 inhibitors have demonstrated significant activity in

MPM, not all patients benefit’. This study will include 15 patients, and the primary data is expected to be

collected by March 201856.

At the IASLC 17th World Conference on Lung Cancer in December 2016, there was a 50-minute debate

entitled ‘Immunotherapy Does NOT Work in Mesothelioma’57, which suggests that there is doubt among

52 Ibid 53 E. Marcq et al, Targeting Immune Checkpoints: New Opportunity for Mesothelioma Treatment? Cancer Treatment Review (2014) 41 914 – 924. 54 Ibid 55 Kindler, H. et al. P2.06-029 Pilot Window-Of-Opportunity Study of Pembrolizumab in Patients with Resectable Malignant Pleural Mesothelioma (MPM). Journal of Thoracic Oncology 12, S1089 (2017). 56 A Pilot Window of Opportunity Study of the Anti-PD-1 Antibody Pembrolizumab in Patients with Resectable Malignant Pleural Mesothelioma https://clinicaltrials.gov/ct2/show/NCT02707666 (Accessed: 20 February 2017) 57 IASLC, http://wclc2016.iaslc.org/wp-content/uploads/2016/11/WCLC-2016-Scientific-Program.pdf see page 6 (Accessed 20 February 2017)


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some researchers and a lack of consensus regarding whether immunotherapy is effective for

mesothelioma. The Program for the conference is shown below:

Thus, at this stage, it could be argued that there is insufficient information to conclude that PD-L1 is a safe

biomarker of mesothelioma and it is therefore questionable whether PD-L1 immunotherapy would assist

in the treatment of mesothelioma. Furthermore, testing for the PD-L1 protein is carried out by

immunohistochemistry staining and it is rare for mesothelioma patients to be tested in this way. As such,

in most cases, defendants will be unable to determine if an individual tested positive for PD-L1.

An article in the Journal of Lung Cancer from January this year notes that, ‘Despite the significant interest

in immunotherapy for MPM, the failure of another immune checkpoint strategy, the low response rate to

a PD-L1 inhibitor, and the low mutational burden of MPM have diminished expectations for

immunotherapy for this disease’58. It is pointed out that the assumption that PD-L1 expression should be

predictive of a response to the drug is challenged by some results from small cell lung cancer studies. In

addition, the author notes that there are important differences between the 2 trials (Keynote 028 and

NCT02399371) from which data relating to the action of Keytruda on mesothelioma patients has been

published, such as the dosing, the frequency of imaging examinations, and the definitions used to define

tumour growth. The article also notes that, in the phase 2 trial, over half of the patients did not have

detectable PD-L1 expression, and responses were seen regardless. There is also a need for trials to

consider other factors for survival when selecting participants; for example, it has been suggested that a

particular mutation may increase long-term survival in mesothelioma patients59. Thus, trials that have

greater proportions of such patients may report increased disease control rates and survival times.

58 Mansfield, A. S. Immune checkpoint inhibition in malignant mesothelioma: Does it have a future? Lung Cancer doi:10.1016/j.lungcan.2017.01.004 59 Baumann, F. et al. Mesothelioma patients with germline BAP1 mutations have 7-fold improved long-term survival, Mesothelioma patients with germline BAP1 mutations have 7-fold improved long-term survival. Carcinogenesis 36, 36, 76, 76–81 (2015).


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Whilst it is unarguable Keytruda has shown promise in treating several cancer types, at this stage there is

very limited evidence regarding its potential treatment for mesothelioma. Keytruda should be regarded

as an experimental therapy for mesothelioma rather than a standard treatment.

USE IN OTHER COUNTRIES

In the USA, mesothelioma patients at several cancer centres can receive the drug through Merck’s special

Patients Access Program60. Towards the end of 2016, the FDA approved its use for metastatic non-small

cell lung cancer, but it is not yet approved for mesothelioma.

In Australia, Keytruda is available cheaply for melanoma, but costs thousands of dollars when used for

mesothelioma. It is available to those who participate in a trial or can afford to pay for the treatment,

including travel costs. There are currently several small trials underway in Australia, which are necessary

to get Keytruda approved on the Pharmaceutical Benefits Scheme for mesothelioma patients (it is

approved for melanoma). Merck subsidises about 30 % of the cost of Keytruda, so a typical dose costs a

patient $5,888. In New South Wales, if a patient is entitled to reparation from the Workers’ Compensation

Dust Diseases Authority (DDA), the DDA is willing to pay for Keytruda treatment in cases where the

consulting oncologist conforms that the patient has exhausted all other treatment options and Keytruda

could be beneficial. Payment is only made to those who were exposed to asbestos whilst working as an

employee in NSW61.

The European Medicines Agency lists Keytruda as being a treatment for melanoma and NSCLC that has

spread, and being specific for lung tumours that produce PD-L162.

CONCLUSION

Will Keytruda prove to be an effective treatment in claimants identified as having no PD-L1 present?

Arguably, based on Keytruda’s mechanism of acting, the treatment will serve no clinical benefit and, as

such, the cost of this treatment would be unreasonable - although in time it may be shown to have a

different mechanism of acting and still an effective treatment.

Even where claimants do have PD-L1 present will Keytruda always be a suitable treatment?

The participants in the Keynote 28 study, were selected based upon an ECOG performance level of 0/1.

ECOG is a grading system which describes a patient’s level of functioning in terms of their ability to care

60 Asbestos.com, Using Keytruda for Mesothelioma May Become a Reality, November 2, 2016 https://www.asbestos.com/news/2016/11/02/keytruda-for-mesothelioma-reality/ (Accessed: 20 February 2017) 61 Key facts you should know about Keytruda. Available at: https://www.slatergordon.com.au/blog/key-facts-you-should-know-about-keytruda. (Accessed: 20th February 2017) 62 European Medicines Agency - Find medicine - Keytruda. Available at: http://www.ema.europa.eu/ema/index.jsp?curl=pages/medicines/human/medicines/003820/human_med_001886.jsp&mid=WC0b01ac058001d124. (Accessed: 20th February 2017)

https://www.asbestos.com/news/2016/11/02/keytruda-for-mesothelioma-reality/


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for themselves, daily activity, and physical ability (walking, working, etc). The full ECOG scale can be seen

in the table below:63

Will the successful preliminary outcomes seen in the Keynote 28 study, in relation to extending life, apply

to patients further progressed in the disease with higher ECOG performance status?

At this stage and until we have the results of further clinical trials we cannot answer these questions.

Keytruda is an experimental therapy and only in the early stages of clinical trials to determine whether it

is a potentially effective treatment for mesothelioma.

The coming few years are set to see major developments in mesothelioma treatment-not just Keytruda-

which have the potential to significantly increase the cost of claims. The results of ongoing clinical trials

will hopefully answer many of the questions raised in this feature and bring some clarity as to where and

what treatments might be effective and whether costs are reasonably recoverable. We will continue to

update in this area on a regular basis.

Cape Plc Settles Asbestos Product Liability Claims With Insurers (BCDN Edition

177)

It has been announced this week that Cape Group, well known for its historical asbestos activities, has

entered into a settlement agreement with Aviva, RSA and Zurich, in relation to a number of product

63 Oken M, Creech R, Tormey D, et al. Toxicity and response criteria of the Eastern Cooperative Oncology Group.Am J Clin Oncol. 1982;5:649-655.


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liability claims linked to historic employer liabilities following trial in February 201764. According to Cape

the settlement agreement provides an upfront payment of £18m, inclusive of legal costs, with a deferred

payment of up to £34.5m payable between 2018-2023.

Cape stressed that the settlement does not imply any acceptance of liability on their behalf but rather,

the litigation if pursued could have a negative impact on the Scheme of Arrangement which was

established in 2006 to pay out in asbestos related claims related to Cape’s historic asbestos activities.

Cape were also keen to point out that this does not impact on the ongoing employer’s liability claim in

Cape Distribution Ltd v Cape Intermediate Holdings Plc [2016] EWHC 1119 (QB) which is listed for a hearing

in the Court of Appeal in July 2017. As a reminder, the facts of this claim were that the claimant, Cape

Distribution Limited (CDL) was a producer of asbestos-related products at its premise in Uxbridge. Former

employees of CDL subsequently developed asbestos-related illnesses and CDL have settled many of these

claims with the assistance of indemnities under an EL insurance policy with a predecessor of Aviva (the

Part 20 defendant). The policy covered the period 31 December 1956 and renewed annually until 31

December 1966.

CDL was at all times wholly owned by Cape Intermediate Holdings (CIH). In 1964 an agreement between

CDL and CIH provided for the transfer the whole of CDL’s undertaking, property and assets to CIH with an

indemnity in favour of CDL. In 2012, the Court of Appeal confirmed in Chandler v Cape Plc [2012] EWCA

Civ 525, that CIH had owed its own common law duty of care to a former employee of CDL who had

worked at the Cowley Bridge Works in 1959 and 1961-1962 (CIH’s duty being additional to those duties

owed by CDL as employer) and that CIH was directly liable to the former employee of CDL in tort for his

asbestos-related illnesses. As a consequence, by this action Aviva, exercising rights of subrogation in the

name of CDL, seeks an indemnity (alternatively contribution) from CIH under the Civil Liability

(Contribution) Act 1978 (‘the 1978 Act’).

We will continue to update readers on the outcome of the appeal later this year.

Feature: Awards for Loss of Intangible Services in Mesothelioma Claims – an

Update (BCDN Edition 177)

INTRODUCTION

In edition 21 of BC Disease News we considered awards for loss of intangible services in accordance with

the principle expressed in Regan v Williamson65, which involved death of a wife and mother. In this week’s

feature we provide an update on this head of loss-sometimes also referred to as a Regan Award or Loss

of Care & Attention from a Spouse (or parent)following the more recent decisions in Mosson v Spousal

64 Preliminary Results For Year Ended 31 December 2016 (Cape Plc)< http://www.capeplc.com/news-and-media/news-announcements/2017/03/preliminary-results-for-year-ended-31-december-2016.aspx> accessed 16 March 2017. 65 [1976] 1 WLR 305

http://www.capeplc.com/news-and-media/news-announcements/2017/03/preliminary-results-for-year-ended-31-december-2016.aspx

http://www.capeplc.com/news-and-media/news-announcements/2017/03/preliminary-results-for-year-ended-31-december-2016.aspx


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(London) Ltd [2015] EWHC 53 (QB) and Wolstenholme v Leach’s of Shudehill Ltd [2016] EWHC 588 (QC).

Such loss is commonly sought in fatal mesothelioma claims but is it recoverable in law?

BACKGROUND

It is an inevitable and grossly unfortunate consequence of an individual contracting mesothelioma that

the children and partner of the deceased are left without a mother/wife or, more often, a father/husband.

Of course, they can bring a dependency claim under the Fatal Accidents Act 1976 for future financial losses

and loss of future services that would have otherwise been provided but for the death. However, the

services provided by a parent or partner go far beyond that which could be replaced by commercially

sourced services. Parental life guidance, for example, is irreplaceable. However, the general rule under

the Fatal Accidents Act is that damages are solely for lost financial dependency66. So are these ‘intangible’

services compensable?

The principle in Regan v Williamson

In Regan v Williamson, Watkins J affirmed, at 308, that the law was simply to compensate for lost services,

not to compensate for grief, loss of companionship, or loss of parental guidance. However, he noted that

it may seem a harsh law. While his Lordship did not go so far as saying these things could be compensated

as services as such, as Lord Edmund-Davies opined as arguable in Hay v Hughes67, he held, at 309, that the

notion of ‘services’ had been construed too narrowly. ‘It should, at least, include an acknowledgement

that a wife and mother does not work to set hours and, still less, to rule. She is in constant attendance,

save for those hours she may well give the children instruction on essential matters to do with their

upbringing and, possibly, with such things as their homework. This sort of attention seems to be as much

of a service, and probably more valuable to them, than the other kinds of service conventionally so

regarded’.

On that basis, any award for services may, therefore, acknowledge that a wife or mother is in constant

attendance upon her children or husband.

SUBSEQUENT AUTHORITY AND EXTENSION OF THE PRINCIPLE

The Regan decision was first instance so does not strictly bind other courts. Curiously, it has not been the

subject of any considerable higher judicial consideration, despite seemingly creating a new head of loss,

or, at the very least, significantly modifying an existing head of loss. That said, in Spittle v Bunney68, it was

held, at 858-859, that the ‘special qualitative factor’ in Regan had been approved, at least by implication,

in the Court of Appeal decision of Abrams v Cook69.

66 Kemp and Kemp, ‘Quantum of Damages’, [29-052]. 67 [1975] QB 790 68 [1988] 1 WLR 847 69 (Unreported, 18 November 1987).


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Importantly, in Beesley v New Century Group Ltd70, Hamblen J held, at [83], that ‘the principle of making

awards for loss of intangible benefits is now well established…It reflects the fact that services may be

provided by a mother, wife, father or husband over and above that which may be provided by a paid

replacement. In principle, there is no reason for differentiating between the position of children and

spouses in connection with the availability of such awards.’

Beesley not only confirmed the principle but confirmed it extended further than mothers/wives to

fathers/husbands.

However, in the more recent High Court decision of, Mosson v Spousal (London) Ltd [2015] EWHC 53 (QB)

this approach was thrown into doubt. The court declined to make an award for loss of intangible services

in a claim for damages for personal injury under the Law Reform (Miscellaneous Provisions) Act 1934 and

Fatal Accidents Act 1976 brought by a widow after her husband's death following a prolonged illness with

mesothelioma.

This was a claim for the inconvenience of paying for the services under the loss of services claim and using

the damages to purchase them. The defendant alleged that it was not a valid head of claim, however, the

claimant argued that such claims are now ‘well established’ as per Beesley.

Garner J, preferred the approach of the defendant and found that:

‘I have had careful regard to these previous cases, in particular to the reasoning of Hamblen J and Mackay

J. I take on board the fact that the making of awards of this sort has become increasingly commonplace.

However I regret to say that, for two reasons, I find myself in disagreement with the conclusions of the

other judges of this Court to whom I have referred. I can see no proper jurisprudential foundation for this

claim’.

The judge’s reasons were firstly, that damages for personal injury were intended to put the claimant in

the position she would have been had the tort not occurred but there could be no precise equivalence in

money terms of every loss that flowed from an injury or a death. In the case of claims for services, the

award was the best estimate of the value, rather than the cost, of services lost. The court had already

made an award in respect of loss of services which was done by estimating the cost of providing

commercially what would otherwise have been provided by the deceased. The award recognised the

advantages and disadvantages of having services provided commercially rather than by the deceased and

there was no room for an additional award for the loss of intangible benefits over and above the claim for

lost services.

Secondly, he found that the claimant was seeking further compensation for the inconvenience of paying

someone to do what her husband would have done voluntarily and that was a claim of the sort which

bereavement damages were intended to cover, as described in William Latimer-Sayer, Personal Injury

Schedules: Calculating Damages, 3rd edn (London: Bloomsbury Professional).

70 [2008] EWHC 3033 (QB).


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He concluded at para 77 that:

‘Bereavement takes many forms and has many consequences. Where the consequence can be valued in

financial terms, they can be a separate head of claim. But where they cannot, in my judgment, they fall to

be regarded as part of bereavement damages. In those circumstances the claim for intangible services is

not a proper claim in law.’

Although he did note that:

‘Were a higher court to say that I was wrong about that, and that such an award could be made in principle,

I would favour the approach of Mackay J over that of Hamblen J. In my view, it would be necessary to prove

some circumstance out of the ordinary to justify an additional award. There is no such unusual

circumstance here; the claimant is the spouse of the deceased, not his child and she and he were of a

similar age.’

The findings in Mosson were contrary to several cases following Regan aswas noted in the most recent

decision on the issue, Wolstenholme v Leach’s of Shudehill Ltd [2016] EWHC 588 (QC). This was a

mesothelioma claim in which a widow brought a claim on behalf of her husband’s estate under the Law

Reform (Miscellaneous Provisions) Act 1934 and as his dependent within the meaning of the Fatal

Accidents Act. As part of the claim, the head of loss for loss of the special services of the husband was

included. The defendant submitted that this was not a recoverable head of loss and in doing so, relied on

the judgment in Mosson. The claimant relied on a number of authorities, including Beesley. HHJ McKenna,

sitting in the High Court, in making an award of £2,500 under this head of loss, said:

‘For my part, I am persuaded that such awards are indeed usual to reflect the advantages in having jobs

around the house being done by a husband or partner in his or her own time and convenience rather than

having to go out to find and choose commercial providers and to have to work around their convenience

and or availability and the decision in Mosson is, as it seems to me, contrary to the weight of authority’.

As such, it would seem that Mosson was a temporary departure from the usual approach to loss of

intangible services claims and that the position in Regan and Beesley has been restored following

Wolstenholme.

Aside from questions about how far the principle extends, it is at least clear than an award can be made

to represent the lost intangible services provided by a partner or parent. Most awards have been made in

respect of the loss of a wife/mother; mesothelioma has been the area where extension of the awards has

been made to husbands/fathers. How much are these Regan v Williamson awards? The decided cases

suggest that the average award is £2,000 to £3,000. Children tend to be awarded less than spouses, in the

region of £500 to £1,000 more.

The following section reviews Regan v Williamson awards that have been made in mesothelioma claims

and a range of other claims.

CASES MAKING A REGAN AWARD


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- Mehmet v Perry [1977] 2 All ER 529 – fatal accident leading to the death of wife/mother. Held it was

reasonable for father to give up working to care for (5) children, of whom two (aged 6 and 3) suffered a

rare blood disorder. Husband and children entitled to recover relatively small sums for the loss of personal

care and attention from the deceased over and above the loss of housekeeping services. £1,500 (£9,113

in 2017) awarded to the children; £1,000 (£6,075 in 2017) awarded to the husband.

- Topp v London Country Bus (South West) Ltd [1992] PIQR 206 – the deceased wife/mother was killed by

a minibus belonging to the defendants. Liability not established but quantum was nevertheless addressed.

Child would have been awarded £2,500 (£4,894 in 2017) for loss of her mother’s care and advice; husband

would have been awarded £2,000 for loss of his wife’s care and attention.

- Whitmore v Malin (1995) Lawtel Document Number: AM0502355 – fatal accident leading to the death

of wife. £2,000 (£3,636 in 2017) awarded to the husband for services rendered by a wife over and above

those rendered by paid helpers.

- Johnson v British Midland Airways Ltd [1996] PIQR Q8 – the deceased wife/mother was killed along with

two of her three children in an aeroplane crash. Liability admitted. Award made for loss of the value of

services over and above those which can be bought. Caution exercised to avoid overlapping awards. Child

awarded £3,500 (£6,186 in 2017); husband awarded £2,500 (£4,419 in 2017).

- Baden-Powell v Central Manchester (2002) Lawtel Document Number: AM0900442 (approved out of

court settlement) – deceased wife/mother died following clinical negligence. An amount for loss and care

and attention for each child was paid in the sum of £5,000 (£7,660 in 2017).

- H v S [2003] QB 965 (CA) – divorced mother of four children, three of whom were minors, killed in a car

accident. Awards were initially made of £1,000 (£1,488 in 2017); £5,000 (£7,441 in 2017) and £7,000

(£10,417 in 2017) for special services that only a mother could provide. On appeal, the latter two awards

were reduced to £3,500 (£5,208 in 2017) and £4,500 (£6,697 in 2017) respectively. There was no reason

to depart from the conventional maximum of £5,000 (£7,441 in 2017), even in the case of a very young

child.

- Beesley v New Century Group Ltd [2008] EWHC 3033 (QB) – deceased husband died of mesothelioma

following occupational exposure to asbestos. The deceased performed a number of jobs around the home

at his own time and convenience. This was the intangible benefit. An award of £2,000 (£2,530 in 2017)

was made to the widow.

- Manning v King’s College Hospital [2008] EWHC 3008 (QB) – deceased wife/mother died following clinical

negligence. The children were each awarded £4,000 for the loss of the love and devotion of a mother. The

husband, who himself had a shortened life expectancy owing to cancer and would therefore have relied

on the special care and attention provided by his wife, was awarded £3,000 (£3,796 in 2017).

- Fleet v Roy [2009] EWHC 3166 (QB) – The deceased husband died of mesothelioma following

occupational exposure to asbestos. Interestingly, at [25], it was said the awards are traditionally an

attempt by the courts to value the services of a mother or a father over and above the commercial cost


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of replacing them; it should not be always automatically be extended between spouses. However, in this

case, a payment was justified because the widow was considerably old than her husband and would, as

the years went on, needed more than usual care. The husband was awarded £2,500 (£3,159 in 2017).

- Streets v Esso Petroleum (2009) Lawtel Document Number: AM0201440 – Deceased husband and father

died of mesothelioma following occupational exposure to asbestos. The son was aged 22 at the time of

trial. A Regan award of £2,000 (£2,527 in 2017) was made to the widow.

- Devoy v Doxford [2009] EWHC 1589 (QB) – Deceased husband died of mesothelioma following

occupational exposure to asbestos. The deceased’s wife was 63 at the time of death and suffered from

Parkinson’s disease, osteoporosis and a painful spinal condition. It was held the widow could recover for

the loss of the deceased’s love and affection. Such a claim could arise where undoubtedly the widow has

lost the love and affection and the very special attention which the deceased would have given to her in

respect of her disabilities had he lived. The sum of £2,000 (£2,527 in 2017) was awarded.

- Wolstenholme v Leach’s of Shudehill Ltd [2016] EWHC 588 (QC), - the deceased’s husband died of

mesothelioma following occupational exposure to asbestos. The deceased’s wife had three sons and

brought a claim as a dependent. It was held that the widow could recover for the loss of the services of

her husband around the house. The sum of £2,500 (£3,159 in 2017) was awarded.

CONCLUSION

Regan v Williamson awards are, despite Mosson, an accepted head of loss. Questions remain over exactly

how far the principle extends and when an award should be made. They are modest awards. In 2003, H v

S suggested a maximum conventional award of £5,000. In 2016, that means a Regan award should not

exceed in the region of £7,500. Typically, in the case of the loss of a father/husband in mesothelioma

claims, the award will be in the region of £2,000-£3,000. However, it is vital to remember that the award

is not an automatic one in the case of fathers/husbands, as Fleet makes clear. It appears that some

justification – some very special care – is still necessary to enable a Regan award to be made. In Beesley

the deceased performed domestic tasks, in Fleet the deceased would have provided more than usual care,

and in Devoy very special care would have been given by the deceased in relation to his widow’s

disabilities. Accordingly, on the authority of these cases, Regan awards should be resisted in cases where

there is not some justification for making the award in respect of a father/husband.

Liability In Mesothelioma Claims: Bussey v Anglia Heating Ltd (2017) (BCDN

Edition 185)

This week, the High Court have held themselves to be bound by the decision in Williams v University of

Birmingham [2011] EWCA Civ 1242, and found that a widow’s claim for damages following her husband’s

death from mesothelioma failed, as she could not prove, on the balance of probabilities, that the levels of

his exposure to asbestos, during the course of his employment, exceeded that set out in TDN 13 of 1970.

Between 1965 and 1968 the deceased was employed as a plumber with the first defendants, at the time

known as Anglia Heating Ltd. He then had a period of self-employment, but in 1969/70 he went to work


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for Pump Maintenance Ltd, the second defendants, until 1980. He then worked for Anglia Television for

about 20 years as a plumber.

The deceased developed mesothelioma in 2015 and died in January 2016. His wife, the claimant,

commenced proceedings, for negligence or breach of statutory duty, in July 2016, against the first and

second defendant, alleging that the deceased had developed mesothelioma as a consequence of being

brought into contact with asbestos during his employment with them. The claim against the second

defendant was settled shortly before trial.

The judge in this case, HHJ Yelton, was concerned only with issues of liability and quantum was agreed.

The claimant had made three statements before his death which were not greatly detailed with regards

to the work he carried out. The claimant was not called to give evidence and neither the defendant, nor

the claimant, traced or called those who ran the first defendant or anyone who worked there with the

deceased. As such, the only oral evidence was from the defendant’s expert and the claimants.

Having heard the evidence of both experts, HHJ Yelton stated that he was satisfied on the balance of

probabilities that:

‘(1) The defendants were at the material time a substantial firm of domestic plumbers in the Norwich area

and indeed the largest such business. That of course is very different from being part of a multi-national

company.

(2) During his employment with the defendants the claimant was mostly employed in domestic heating

and plumbing work.

(3) The deceased’s exposure to asbestos during this employment came from cutting asbestos cement pipes,

usually flue pipes from a boiler or a gas fire, with a hacksaw and also from handling asbestos rope, from

which a length was teased out, and then used to caulk joints on the new flue pipes. The pipes had a

diameter of 4 to 6 inches and the asbestos used was almost always chrysotile (white asbestos), the most

commonly found type and the least toxic. The deceased did not carry out lagging or insulation work in the

course of his employment.

(4) The deceased’s own estimate was that this cutting and caulking occurred about once every two to three

weeks, and I accept that.

(5) Dust was produced from the cutting. The dust was not all from the asbestos and much of it (Mr. Brady

thinks about 85 to 90%) was from the cement used in the pipes. There could be three or four cuts in relation

to each flue and each cut would take about 5 minutes.

(6) Some dust went on to the deceased’s clothes. After carrying out this work he would blow on the cut

end of the pipe, and later sweep up, which produced visible dust as it was done.

(7) The asbestos rope (which in his earlier statements the deceased describes as “string”, which is a

misleading term) was dusty and some of the dust came off on to his hands. It is on this point that I accept

the evidence of Mr. Brady, who had spoken to the deceased about it. Rope of this type often contained

amosite (brown asbestos) as well as the more common and less toxic chrysotile.

(8) During his employment with the first defendants, the deceased was not given any advice about reducing

exposure to asbestos dust.

(9) It was exposure to asbestos which caused the claimant to develop mesothelioma’.


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In terms of the level of asbestos the deceased would have been exposed to, the judge favoured the

evidence of the defendant’s expert. He agreed with him that the dust from sweeping would produce a

similar result in the atmosphere to that from cutting and that the claimant’s proposition that this would

be as high as 100 fibres/ml was not sustainable. Further, he agreed that the sweeping took place after a

job which involved cutting and was unlikely to have taken more than a few minutes. HHJ Yelton also stated

at para 20:

‘I also bear in mind that the exposure to asbestos in this case was very limited in time. On the basis that

the deceased was involved in the cutting of flue pipes once every two or three weeks, his involvement with

the dust was not in my judgment substantial although not de minimis. On the figures set out above (which

can only be estimates) the deceased was exposed to asbestos dust for up to an hour once every two to

three weeks’.

Further, he rejected the claimant’s reliance on the fact that the deceased had the rope with him in his

vehicle and that he carried the pipes into the building where he would be working as he said that the

exposure in those circumstances was likely to be minimal and of ‘little or no importance’.

It was concluded that, on the balance of probabilities, the deceased was not exposed to levels of asbestos

dust beyond those set out in TDN13, which had not been published at the time of his employment with

the first defendant.

In this respect, the defendant relied upon the decision of Williams, which established that the correct legal

test for breach of duty where there was more than de minimis exposure, was whether the degree of actual

exposure made it reasonably foreseeable to the defendant that, as a result of its conduct, the respondent

would be exposed to the risk of contracting mesothelioma and that was to be based on its knowledge at

the time of the exposure.

The claimant submitted that the decision of the Court of Appeal in Williams was reached ‘per incuriam’,

i.e. a lack of due regard to the law or the facts and should not be followed. It was this formulation of the

test of reasonable foreseeability that the claimant disagreed with. Instead, the formulation of the test of

reasonable foreseeability as seen in the Court of Appeal decisions of Maguire and Jeromson, which also

concerned pre-1970 exposure, was preferred. In these cases, it was held that an employer would be found

to be in breach of their common law duty of care if he failed to reduce his employee’s exposure ‘to the

greatest extent possible’.

Whilst it was agreed that the exposure of the deceased in this claim could have been reduced, HHJ Yelton,

pointed out that Williams had in fact been followed by a number of first instance decisions including,

McCarthy v Marks & Spencer Plc [2014] EWHC 3183, Hill v John Barnsley & Sons [2013] EWHC 520 (QB),

Woodward v Secretary of State for Energy and Climate Change [2016] EWHC 939 (QB) and Smith v

Portswood House Ltd [2016] EWHC 939 (QB). As a result he found that he could not accept the claimant’s

argument re Williams as the doctrine of precedent, recently restated by the Supreme Court in Willers v

Joyce [2016] UKSC 44, meant that High Court Judges are bound by decisions of the Court of Appeal and if

there are two inconsistent decisions, the later should be followed. As such, despite the apparently


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conflicting Court of Appeal decisions in Jeromson, Maguire and Williams, as Williams was the most recent,

that should be the decision that is followed.

As such, in the present case, in order to succeed, the claimant must be able to show on the balance of

probabilities that it was reasonably foreseeable that the deceased could contract mesothelioma, based

on knowledge at the time. As we noted above, it was found that the deceased’s exposure did not exceed

the limits outlined in TDN13.

In this regard, the judge found, that despite the fact that the exposure to asbestos in the present case

preceded TDN13:

‘...it would in my judgment be perverse to find that TDN13 increased rather than decreased the levels of

exposure which a responsible employer would regard as safe. In other words, if the decision in Williams is

correct, then a claimant cannot succeed in a claim of this nature in relation to a period before 1970 by

showing that exposure to asbestos was at a lower level than provided by TDN 13.’

This is the same approach to TDN13 taken in Hill, in which Bean J stated:

‘…if, using Aikens LJ’s words, it is the best guide to what was regarded as an acceptable level of exposure

in 1970, it is hard to see that such a level would have been regarded as unacceptable in 1968 or 1969’.

He went on at para 44:

‘Having concluded that the claimant has failed to prove that the levels of the deceased’s exposure to

asbestos exceeded those set out in TDN 13 (although they were not de minimis), it seems to me that I am

bound by the logic of Williams to hold that she has failed to prove that the first defendants were negligent’.

Therefore, the claim was dismissed.

It is thought that this case will proceed to the Court of Appeal shortly.

Launch of Mesothelioma Breach of Duty Guide (BCDN Edition 185)

Liability is becoming an increasingly live issue in mesothelioma claims. In this Guide we consider how the

courts deal with these liability issues and what practical handling guidelines can be gained. In part 1 of

this Guide we consider the essential requirement of the claimant proving exposure on balance of

probabilities. We then go on in part 2 to consider the common law regime for proving exposure and show

why exposure to any level of asbestos does not automatically amount to a breach of duty of care. Finally

in Part 3, we compare the approach at common law with the statutory regime for asbestos and ask

ourselves if the latter imposes more onerous duties on employers or if it simply mirrors those obligations

at common law.

The Guide can be accessed here.

https://www.bc-legal.co.uk/images/pdf/Meso%20Breach%20of%20Duty%20Guide.pdf


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Updated Mesothelioma PSLA Guide (BCDN Edition 186)

Two years since our last edition, this week we release the 4th edition of our mesothelioma PSLA guide.

This contains information on actual awards for mesothelioma, dependent on age and the period between

onset of the disease and death, or anticipated date of death. These are provided in the form of ‘ready

reckoner’ tables, organised by award size, claimant age and duration of symptoms.

In addition to this, our mesothelioma PSLA calculator can be accessed here - and provides estimated

common law awards according to age and duration of symptoms, based on these ready reckoner tables.

The guide can be accessed here.

Feature: Breach of Duty in Pleural Thickening Claim: McGowan (deceased) v

AMEC Buildings Limited (BCDN Edition 186)

INTRODUCTION

This month, BC Legal has been successful in defending a claim for pleural thickening in the High Court case

of McGowan (deceased) v AMEC Buildings Limited, based on a failure of the claimant to prove, on the

balance of probabilities, that the deceased had been exposed to negligent levels of asbestos during his

employment with the defendant.

The purpose of this feature is to explain the decision and how it may be used in practice, alongside a

review of how our tool, ABC Asbestos, can be utilised in claims such as this.

FACTS

The claim was brought by the widow of the deceased, Mr McGowan, who died in January 2013 of an

unrelated cardiac arrest. The claimant alleged that the deceased, a bricklayer, working in the erection of

structures comprising reinforced concrete blocks, developed pleural thickening as a result of occupational

exposure to asbestos between 1949-1973 whilst employed by the defendant.

The claim was pursued in both negligence of common law and breach of the statutory duties set out in

the provisions of the Building (Health, Safety and Welfare) Regulations 1948, the Construction (General

Provisions) Regulations 1961 and the Construction (Working Places) Regulations 1966.

The claim was originally one for asbestosis, however, on the basis of both the parties’ medical evidence,

it was agreed the deceased had suffered from idiopathic pulmonary fibrosis of unknown cause, rather

than asbestosis and by trial the claim was for bilateral diffuse pleural thickening and folded lung which

the medical experts likely attributed to asbestos exposure whether occupational, domestic or

environmental. However, the experts agreed that there was a lack of evidence to establish where or when

the deceased was exposed to asbestos, to what levels, and whether these fell within the limits that were

perceived at the relevant time of exposure to be safe.

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Both parties instructed histopathologists, who carried out tests on samples of the deceased’s lung taken

after death. It was agreed that this showed no evidence of asbestosis with only one asbestos body

discovered on seven sections of lung. Further, electron microscopic mineral fibre analysis detected no

asbestos in what was described as a ‘well-sampled’ lung.

The claimant submitted that this absence could be due to fibres degrading or being cleared from the lungs

over time. However, the defendant, submitted that even taking into account the passage of time, one

would have expected more fibres to have been present in the lungs if the deceased had occupational

levels of asbestos exposure. On this issue, Mrs Justice Andrews found that absence of fibres detected in

the lung tissue after death, which occurred 40 years after the deceased ceased working for the defendant,

did not undermine the thesis that the cause of the bilateral diffuse pleural thickening could have been

exposure to significant levels of asbestos, either at work or somewhere else.

Instead she phrased the key issue for the court as follows:

‘…to determine …whether Mr McGowan was exposed to concentrations of asbestos dust that would have

been foreseeable as causative of harm by the standards of the day, during the course of his employment

with the defendant’.

In relation to this point she went on to say that:

‘If the levels of asbestos to which an employee was exposed were not contemporaneously recognised as

hazardous, then the employer cannot be found in breach of duty because personal injury in such

circumstances would not be foreseeable’.

Andrews J confirmed that the approach to foreseeability is that established in the leading judgment in

Williams v The University of Birmingham [2011] EWCA Civ 1242, i.e. level of exposure would be deemed

as recognisably hazardous if they exceeded the limits specified in the available guidance at the time.

[Importantly, Andrews J pointed out that the concept of foreseeability is imported into the statutory

obligations the claimant relied upon and as such there is no material distinction to be drawn between the

different causes of action in terms of what the claimant must prove in order to establish liability – as per

Abraham v Ireson & Son (Properties) Limited [2009] EWHC 1958 (QB).]

The focus of this case was on the period between 1966-1973 and as such the argument was concentrated

on whether the deceased was exposed to levels of asbestos dust that were higher than those that were

perceived to be safe during this period-which from 1970 were the hygiene levels imported via the

Asbestos Regulations 1969 and the 1970 Department of Employment and Productivity Technical Data

Note 13.

The experts were unable to put forward any medical or other literature that suggests what the level of

exposure would have to be to cause pleural plaques and whether this would exceed those considered to

be safe. Although the ‘Helsinki criteria’ for diagnosis and attribution of asbestos-related diseases was

relied upon by the claimant, which states:


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‘For diffuse pleural thickening, high exposure levels may be required. Bilateral diffuse plate pleural

thickening is often associated with moderate or heavy exposure as seen in cases of asbestosis and should

be considered accordingly in terms of attribution – i.e. this type of pleural thickening is considered to be

close to asbestosis in terms of exposure’.

The claimant argued therefore that based on the deceased’s medical condition he must have been

exposed to levels exceeding the recognised hygiene levels from 1966 onwards. The defendant countered

this by reiterating that the sample of the lungs had shown no asbestos fibres of asbestos.

Interestingly, the HSE mesothelioma occupation statistics for male and female deaths aged 16-74 in Great

Britain in the period from 2002-2010 were relied upon by the defendant in order to show that male

bricklayers and masons have a lower proportional mortality ratio for mesothelioma than the average

mortality rate for mesothelioma across all male occupations. Andrews J said that this use of mesothelioma

as the calibrator was appropriate, because levels of exposure and the incidence of mesothelioma are

closely correlated so that:

‘…if Mr McGowan had been working only as a bricklayer, the statistical evidence suggests that the

background levels of exposure to asbestos fibres in the construction environment would not have been

sufficient to render his employers in breach of duty. Likewise, the statistical evidence in relation to

steelworkers does not show a higher proportional mortality rate’.

Despite the fact that the deceased did not only work as a bricklayer and when looking at similar statistics

for the construction industry this showed that deaths from mesothelioma were higher than average,

Andrews J still held that it would be dangerous to seek to draw any adverse conclusions from the fact that

somebody was working on a building site at the relevant time.

Eventually, the lack of a witness statement from the deceased proved fatal to this claim as it was

concluded that:

‘At the end of the day, unfortunately for the claimant, the claim falls at the very first hurdle because it is

impossible on the evidence for the court to determine what level of exposure, if any, to asbestos fibres Mr

McGowan was exposed to during the period with which this case is concerned. It seems plain to me, on

the balance of probabilities, that the diffuse pleural thickening was due to some form of exposure to

asbestos, but there is no evidence as to when that happened, what level of exposure there was or over

what period he was exposed to it. One cannot draw an adverse inference against the defendant simply

because Mr McGowan spent a very lengthy period working for the defendant. There is no evidence that he

was exposed to asbestos in childhood but, equally, there is no evidence that he was not. Similarly, there is

no evidence that he was not exposed to asbestos when he was working as a clerk of works after he ceased

working for the defendant’.

DISCUSSION


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The Judgment does not yet have a neutral citation number, but will soon be reported on Lawtel and

Westlaw and will likely be subject to the same scrutiny that any Judgment in asbestos litigation is subject

to.

While only a first instance decision and not binding on any lower Court, these decisions do provide road

maps and a judicial rationale for subsequent decisions. You only need to look at Paragraph 2 of Mrs Justice

Andrews Judgment in McGowan, as mentioned above, to see that she followed the exact same rationale

of Mrs Justice Swift in Abraham v Ireson & Son (Properties) Limited [2009] EWHC 1958 (QB), another first

instance decision, in relation to the concept of foreseeability being imported into the various Construction

Regulations.

The case adds to the asbestos jurisprudence in some areas, fails to deal with controversial areas of law in

others, but does provide helpful passages that we believe will be quoted at ‘show cause’ hearings and

Trials going forward. The Judgment also deals with the first foray into the evidential weight to be placed

on mortality data for the trade of a Claimant and whether any inference as to the level of exposure can

be drawn.

AREAS OF INTEREST

The following areas are identified as areas where the case will have an impact and they will be addressed

in turn in this feature:

1. Further confirmation from the High Court that the Building & Construction Regulations do not add to

common law duties.

2. Another case in which a Claimant failed to prove exposure to asbestos/breach of duty.

3. Useful passages on the evidence required to prove breach of duty that correspond to the analysis

provided by BC Legal Breach of Duty Tool.

4. The conflict between Cherry Tree and Williams v University of Birmingham [2011] EWCA Civ 1242 and

post 1965 exposure to asbestos.

5. The use of mortality data for various trades to bolster or undermine allegations of significant exposure

to asbestos.

6. The dosage threshold for pleural thickening.

BUILDING (HEALTH, SAFETY AND WELFARE) REGULATIONS 1948, CONSTRUCTION (GENERAL PROVISIONS)

REGULATIONS 1961 AND CONSTRUCTION (WORKING PLACES) REGULATIONS 1966 ADD NOTHING TO THE

COMMON LAW

The interpretation of the above Regulations is of crucial importance as many asbestos claims involve the

Construction Sector in the 1960’s—mid 1990’s.

The position taken in McGowan was that the words ‘likely to be injurious’ within the Building and

Construction Regulations import an element of foreseeability and that an employer must have known the

exposure to C was capable of being ‘injurious’. This wording is also found in s.63(1) of the Factories Act

1961 which imposes a duty on a factory occupier to protect against exposure to dust. Crucially, however


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under the second limb of section 63(1) there is also a duty to protect against exposure to ‘substantial dust

of any kind’, which arguably involves no element of foreseeability. However, this second limb does not

appear in the Construction Regulations and thus we are left being able to argue that the statutory

provisions simply mirror the co-existing common law duty of care and what is foreseeable is to be judged

by the relevant standards of the day.

At Paragraph 2 Andrews J endorses the interpretation of Swift J in Abraham v Ireson & Sons (Properties)

Limited [2009] 1958 (QB):

There is now another hurdle in the way of a Claimant aiming to argue a stricter interpretation of the

Building and Construction Regulations and another High Court Judge is less likely to find an alternative

interpretation, where it would mean departing from two previous decisions of the High Court. The case

presents a further evidential hurdle for those trying to make that argument and is enough to avoid

Judgment at a ‘show cause’ hearing, where such a point is taken.

ANOTHER CASE WHERE THE CLAIMANT HAS FAILED TO ESTABLISH EXPOSURE / BREACH OF DUTY

Claimants are currently having a bad run of cases where they are failing to discharge their evidential

burden of proof:

• Brett v University of Birmingham [2007] EWCA Civ 88

• Harrington v DECC [2008] EWHC 2658 (QB)

• Pugh v Joseph Parkes [2008] EWHC 2964 (QB)

• Abraham v Ireson [2009] EWHC 1958

• Reynolds v DECC [2010] EWHC 1191 (QB)

• Asmussen v Filtrona [2011] EWHC 1734 (QB)

• Williams v University of Birmingham [2011] EWCA Civ 1242

• McGregor v Genco [2014] EWHC 137

• Atkinson v DECC [2014] EWHC 3773 (QB)

• McCarthy v M & S [2014] 3183 QB

• Woodward v DECC [2015] EWHC 3604 (QB)

• Prescott v University of St Andrews[2016] CSOH 3

• Sloper v Lloyds Bank [2016] EWHC 483 (QB)

• Smith v Portswood House [2016] EWHC 939 (QB)

• McGowan (Deceased) v AMEC (2017)


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McGowan will be added to that list and when viewed as a whole it can be seen how important the quality

of evidence as to exposure is to the success of a claim.

In many cases that evidence will be lost forever, upon the death of the Deceased.

FINDINGS ON EXPOSURE - ‘THE FIRST HURDLE’

Andrews J was unable to make findings of negligent exposure to asbestos or findings of exposure to

asbestos at all.

Crucially she gave Judgment on what evidence was missing that meant she could not make key findings

of fact:

The key evidence missing was:

1. Evidence as to frequency of exposure.

2. Evidence as to level of exposure.

3. Distance from exposure if asbestos usage is by others.


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We feel the ‘falls at the very first hurdle’ will be a much used quote where the evidence is poor or

incomplete by ‘show cause’ hearing or trial.

CHERRY TREE v WILLIAMS

Exposure post 1970 is clearly governed by Williams and the guidance given to employer within TDN13.

The guidance within TDN13 allows an employer to weight an exposure over a 4 hour period, so long as

the peak exposure does not exceed prescribed levels over a 10 minute weighted period. What was the

position prior to 1970? The Ministry of Labour produced guidance to employers based on an 8 hour time

weighted period, that did not deal with shorter term peak exposures. That guidance was contained within

the various ‘Toxic Substances in Factory Atmospheres / Dust and Fumes in Factory Atmospheres’ 1960,

1966 and 1968. Those documents deal only with 8 hour time weighting and relatively high short term peak

exposures would fall below such levels when averaged over an 8 hour period. One question is whether

short term exposures, that may be high, but with an average below the guidance to industry when

weighted, can give rise to negligence at common law?

Given her findings on the absence of evidence of exposure, Andrew J did not have to deal with this.

However, she endorsed both approaches:


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Williams is stated as the ‘leading case’, but account given to the effect of peak exposures. To that end it

might be read that Williams and Cherry Tree are not that inconsistent, as high short term peaks would be

caught by the short term levels within TDN 13. This was the thinking of Bean J in Hill v John Barnsley [2013]

EWHC 520 (QB):


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In Hill exposure was up to 99 fibre/ml, so very high in 1968/69 and its negligence was obvious. The key

question remains unanswered where the peak exposures are much lower than this.

USE OF MORTALITY DATA IN ASBESTOS CASES

McGowan is the first time HSE mortality data has been used to prove factual exposure, or the absence of

it.

The Claimant’s case was based on inference that an employee working in the Construction Sector would

likely have been exposed to significant quantities of exposure, by the very nature of the job.

Mr McGowan was actually a steel erector and his job was compared to that of a brick layer, which based

on HSE data, carried a statistically low risk of mesothelioma. As such the HSE data assisted the defendant’s

argument:


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For Mr McGowan the data rebutted the presumption, as the risk to his profession was low at 85.6-106

mortality ratio.

Claimants may use this data in weak cases to bolster the poor evidence left.

However, general data on risk cannot prove specific exposure and the burden will always be on the

Claimant to prove what he did, how he did it and the nature and extent of his exposure. All the data can

show is that others working with the same job title were exposed and have a higher risk of mortality. It

cannot prove where the Claimant would fall within that data set. A Claimant cannot use generic

epidemiology to prove specific exposures or causation. This falls fowl of the general principle that the

general does not prove the specific. In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, Lord Rodger discussed

this problem as follows:

‘The example in question can be traced, via the speech of Lord Mackay of Clashfern in Hotson , at p 789,

to the dissenting judgment of Brachtenbach J in Herskovits v Group Health Cooperative of Puget Sound

(1983) 664 P 2d 474 a decision of the Supreme Court of Washington:

“Brachtenbach J dissented. He warned against the danger of using statistics as a basis on which to prove

proximate cause and indicated that it was necessary at the minimum to produce evidence connecting the

statistics to the facts of the case. He gave an interesting illustration of a town in which there were only

two cab companies, one with three blue cabs and the other with one yellow cab. If a person was knocked

down by a cab whose colour had not been observed it would be wrong to suggest that there was a 75%

chance that the victim was run down by a blue cab and that accordingly it was more probable than not

that the cab that ran him down was blue and therefore that the company running the blue cabs would be

responsible for negligence in the running down. He pointed out that before any inference that it was a blue

cab would be appropriate further facts would be required as, for example, that a blue cab had been seen


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in the immediate vicinity at the time of the accident or that a blue cab had been found with a large dent

in the very part of the cab which had struck the victim”’.

However, the data may be useful for raising the spectre of exposure elsewhere not considered by a

Claimant. Judges like to be able to identify a possible cause other than the Defendant, if they are going to

find against a Claimant. It always assists a Defendant to be able to point to another potential cause. In this

case McGowan worked as a Clerk of Works with other Defendants and at 143, this carried a higher

mortality risk due to mesothelioma than either of his trades with AMEC:

This point was not lost on Andrews J:

The data may well assist the construction of a competing narrative on exposure and a Judge who feels the

mesothelioma might have been caused by another unpursued entity may have more reason to find for

the Defendant in front of them.


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We may see more use of this data and it is obvious from an analysis of it, that those in the Construction

sector were exposed to asbestos on a regular basis. The generic cannot prove the specific and that remains

the Claimant’s evidential burden.

THE DOSAGE THRESHOLD FOR PLEURAL THICKENING UNDER HELSINKI 2014?

Andrews J gives possible authority for a much higher than expected dosage threshold for diffuse pleural

thickening:

Her summary of Helsinki criteria confirms diffuse pleural thickening needs ‘high exposure’ levels and that

bilateral diffuse plate pleural thickening is often associated with ‘moderate to heavy exposure’ akin to the

type seen in asbestosis.

This did not accord with the medical evidence in this case or what we would consider to be established

thinking. Quantum was agreed in advance of Trial and no oral evidence was heard from the Chest

Physicians and no submissions made on Helsinki, beyond the requirement within the Joint Report that the

pleural thickening would be attributable to asbestos exposure, if the Helsinki criteria for that are met. The

defendant proceeded on the basis of the exposure needing to be higher than that for pleural plaques, but

that no one knew how high, and the Claimant could not prove the extent of the deceased’s exposure.


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Andrews gave Judgment that exposure akin to asbestosis levels was required to establish diffuse pleural

thickening, but the 2014 Helsinki paper actually indicates that, for low grade asbestosis, lower exposure

levels (than 25 fibre/ml years) may establish causation:

This is the first time a Court has referred to the updated Helsinki criteria.

CONCLUSIONS

The Judgment is helpful on a number of levels, but these are summarised as follows:

1. Further confirmation of the various Building and Construction Regulations adding nothing to the

common law.

2. Claims will face significant hurdles where the evidence of exposure is poor, or just not concluded. There

are several passages on what evidence is required to find against a Defendant that will help a Defendant

‘show cause’.


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3. ‘Falls at the first hurdle’ which be a much used quote at show cause hearings and trial.

4. We may see more use of mortality data which is not generally favourable in respect of the Construction

Industry. However, the general findings cannot assist a Court with the specific findings required to

establish liability.

5. The Court appears to accept that pleural thickening requires a higher levels of exposure than previously

thought.

Feature: Exposure to Asbestos from Sweeping (BCDN Edition 187)

INTRODUCTION

We discussed last week the judgment of Bussey v Anglia Heating in which some interesting comments

were made in relation to levels of asbestos exposure as a result of sweeping/cleaning asbestos. In this

week’s feature, we take a closer look at the likely asbestos exposure to workers undertaking this activity.

We firstly consider which occupations most commonly come into contact with asbestos-containing

materials and are likely to sweep/clean asbestos residue. We then look at the medical literature on what

the likely concentration of airborne asbestos fibres workers will be exposed to whilst carrying out this task

and compare these with levels of exposure seen in other activities known to have a high risk of exposure.

Finally, we consider what has been said about sweeping of asbestos and volume of exposure in the recent

decisions of Bussey and Hill v John Barnsley [2013] EWHC 520 (QB).

A SHORT BACKGROUND OF ASBESTOS

Asbestos is a term used to describe the fibrous forms of several naturally occurring minerals. The three

main types of asbestos that have been used commercially are crocidolite (blue asbestos), amosite (brown

asbestos) and chrysotile (white asbestos). All types are known to cause dangerous health effects in

humans, though crocidolite and amosite are more dangerous than chrysotile. When asbestos fibres are

inhaled, the body can remove the larger fibres, but the microscopic fibres can stay in the lungs for many

years, and eventually cause fatal lung diseases.

The likelihood that one will develop asbestos-related disease increases with the following:

Exposure to the most dangerous types of asbestos;

Young age when exposure starts;

Number of fibres breathed in;

Number of times exposed; and

Smoking.

Those working in a wide range of trades may come across asbestos-containing materials (ACMs). In

general, disturbance of ACMs can cause fibres to be released, and tasks that cause significant disturbance

to the ACMS will result in more fibres being released. Sweeping up asbestos debris can produce very

elevated airborne asbestos fibre concentrations. The concentration of fibres, usually measured as number

of fibres per millilitre of air (fibres per ml) depend on the type of asbestos, the quantity involved and the

particular form of debris. The various measurements of the concentrations of airborne fibres during

sweeping are presented in this article.


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OCCUPATIONAL ASBESTOS SWEEPING

Different ACMs contain differing amounts of fibres, and therefore have different potential for release of

fibres into the atmosphere. In general, airborne fibre concentrations are highest for work on sprayed

insulation, and much lower for other types of thermal insulation and lagging, then in descending order for

insulation board, ceiling tiles and lowest for asbestos cement products.71

ACMs may be manipulated in a number of ways including sawing, sanding and drilling. These tasks often

result in asbestos debris on the floor that needs to be cleaned up which is often done by way of sweeping.

According to a 2007 review by Williams and colleagues, workers who might perform general clean-up of

asbestos products include insulators, pipefitters, painters, labourers, maintenance workers and

abatement workers.72

Mowat estimated that in an 8-hour day, 1 or 1.5 hours would be spent sweeping.73 For some tasks,

however, it is feasible that sweeping would only take around 15 minutes.

WHAT AIRBORNE CONCENTRATIONS ARISE FROM SWEEPING?

LITERATURE REVIEW:

We go on, later in this article, to discuss the difficulty of making an accurate assessment of asbestos

exposure for insulating workers. This difficulty is due to the variety of materials used, each containing a

different amount of asbestos, and due to the intermittent nature of the work. Both of these factors help

to produce widely different dust concentrations, not only between processes, but also during the course

of a particular process. Without continuous dust monitoring of every process it is not possible to establish

accurate estimates of time weighted dust exposures for insulating workers.

Pipe Lagging

However, despite these difficulties, in a well-known paper from 1971, P.G. Harries provides a list of

asbestos dust concentrations measured from air samples in various tasks associated with pipe lagging in

boiler rooms within warships.74 Concentrations are given for the ‘general atmosphere’ and the ‘breathing

zone’. He found that larger concentrations of dust in the general atmosphere were generated by removing

asbestos ‘plastic mix’ from container (mean 199, range 48-328 fibres/ml), mixing asbestos ‘plastic mix’

with water in bucket (mean 167, range 53-377.4 fibres/ml) and blowing down asbestos debris (from

inaccessible ledges, using an air hose) than by cleaning calcium silicate debris (mean 489 range 140-932

fibres/ml). However, sweeping and bagging amosite debris had the highest mean value and the highest

71 J. E. Chisholm, Health and Safety Laboratory, ‘Asbestos Exposure of Maintenance Workers’. 72 Williams, P. R. D., Phelka, A. D. & Paustenbach, D. J., ‘A Review of Historical Exposures to Asbestos among Skilled Craftsmen’ (1940–2006). Journal of Toxicology and Environmental Health, Part B 10, 319–377 (2007). 73 Mowat, F., Bono, M., Lee, R. J., Tamburello, S. & Paustenbach, D., ‘Occupational Exposure to Airborne Asbestos from Phenolic Molding Material (Bakelite) During Sanding, Drilling, and Related Activities’. Journal of Occupational and Environmental Hygiene 2, 497–507 (2005). 74 Harries, P. G., ‘Asbestos Dust Concentrations in Ship Repairing: A Practical Approach to Improving Asbestos Hygiene in Naval Dockyards’. Ann Occup Hyg 14, 241–254 (1971).


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upper value of all the tasks investigated (mean 564 range 76.3-1191 fibres/ml). Breathing zone

measurements were not taken for sweeping and bagging amosite debris, and the measurements for

removing asbestos ‘plastic mix’ from container (mean 217 range 48-470 fibres/ml) and mixing asbestos

‘plastic mix’ with water in bucket (mean 256, range 24-579 fibres/ml) were higher than for cleaning

calcium silicate debris (mean 155, range 90-277 fibres/ml). The author notes that previously men who

cleaned calcium silicate debris, ‘blowed down’ the debris and swept the amosite debris would not have

been protected.

Asbestos Insulating Board

For work involving asbestos insulating board (AIB), the single value provided in the report HSG 213 is

sometimes quoted – Introduction to asbestos essentials by HSE (2001).75 This report gives an exposure for

sweeping AIB debris of up to 100 fibres/ml. However, this is not an actual range of values, and no mean

or average value is provided. This figure should be interpreted with caution because the numbers in this

publication are very rounded, and these levels were provided to illustrate examples of poor practice.

Cement and Demolition Works

The HSE report HSG-189-2 notes that sweeping up asbestos cement debris after remote demolition work

is likely to produce airborne dust concentrations of greater than 1 fibre per ml.76

Hand sawing, machine drilling, removal of asbestos cement sheeting, stacking of asbestos cement sheets

and remote demolition of asbestos cement structures all have typical exposures less than that from

sweeping. This is demonstrated in the figure below (taken from HSE 189-2).

75 HSE (2001) ‘Introduction to Asbestos Essentials’. HSG213. Health and Safety Executive, HSE Books. 76 HSE (1999) ‘Working with asbestos cement HSG189/2’. Health and Safety Executive, HSE Books.


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It was also found in HSE report EH35 that site clearance after remote demolition work could give rise to

airborne fibre concentrations greater than 1 fibre per ml, however this does not specifically mention

sweeping.77

Non-Shipyard and Shipyard Settings

The 2007 review by Williams and colleagues, mentioned above, investigated literature on historical

asbestos exposures among skilled craftsmen in various non-shipyard and shipyard settings.78 They found

several papers that specifically mention sweeping.

- Mowat and colleagues measured airborne fibre concentrations to which electricians were exposed.79

They took 18 samples for personal (breathing zone) exposure and 36 for area exposure (approximately

77 HSE (1989) ‘Probable asbestos dust concentrations at construction processes Guidance Note EH35’. Health and Safety Executive. 78 Williams, P. R. D., Phelka, A. D. & Paustenbach, D. J., ‘A Review of Historical Exposures to Asbestos among Skilled Craftsmen’ (1940–2006). Journal of Toxicology and Environmental Health, Part B 10, 319–377 (2007). 79 Ibid


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1.8 m from the centre of the work surface at a height of 1.5 m) during 30 minutes of sweeping of Bakelite

(an early plastic, to which fillers such as chrysotile were added to improve its properties). The mean fibre

concentration was 0.07 fibres per ml and the range was less than 0.04 to 0.18 fibres per ml for personal

exposure, and the mean was 0.03 fibres per ml and the range was less than 0.02 to 0.08 for area exposure.

These figures are estimated time-weighted averages for 8 hours. The researchers estimated total daily

exposures assuming that a worker performed several different activities for 0.5, 1 or 2 hours within an 8-

hour day. These measured asbestos concentrations from work with Bakelite were lower for sweeping than

for sawing and sanding.80

- Rohl and colleagues measured airborne fibre concentrations for painters in the construction industry.81

Peak personal exposure when sweeping the floor after drywall installation for 15 minutes was 41.1 fibres

per ml and when sweeping for 30 minutes was 26.4 fibres per ml.

- Verma and Middleton measured personal exposure for 9-30 minutes while sweeping drywall

construction debris among painters in the construction industry.82 The mean exposure was 15.1 fibres per

ml with a range of 4.0 to 26.5 fibres per ml.

The source of asbestos in the Rohl and Verma and Middleton papers was Ames tape and jointing

compound/putty that contained chrysotile asbestos.

Clean-up Activities

The Williams review also discusses some papers that mention clean-up activities, though not specifically

sweeping. The clean-up of insulation materials and debris was capable of producing relatively high

airborne fibre concentrations during the clean-up or bagging of waste insulation. Samples collected for

0.5-3 hours in the late 1960s during clean-up yielded average fibre concentrations ranging from 1 to 4.8

fibres per ml. The clean-up of lagging materials on-board United States Flag Vessels also yielded fibre

concentrations ranging from 2.4 to 3.3 fibres per ml, based on samples collected for 4 minutes. Much

lower fibre concentrations were reported during clean-up activities for 0.5-2 hours during marine

construction in private shipyards, with an average fibre concentration of 0.2 fibres/ml reported in the late

1960s. Similarly, average fibre concentrations were found to range from about 0.6 to 1.2 fibres/ml during

the clean-up of asbestos spillage on-board Australian naval vessels. An unexpectedly high value for the

average fibre concentration (155 fibres/ml) was reported during clean-up of asbestos debris in the early

1970s at a British naval dockyard. The clean-up and storage of gasket materials was expected to produce

insignificant exposures to asbestos. Average fibre concentrations during such tasks were found to range

from 0.04 to 0.1 fibres per ml in United States Navy shipyards based on samples collected for 6-132

minutes in the mid-1970s. Higher fibre concentrations ranging from 0.24 to 3.4 fibres per ml were

reported for short-term samples collected over 4022 minutes for workers and observers during clean-up

related to piping repair on-board U.S. Flag vessels. For abatement workers, the clean-up of asbestos

80 Ibid 81 Rohl, A. N., Langer, A. M., Selikoff, I. J. & Nicholson, W. J., ‘Exposure to asbestos in the use of consumer spackling, patching, and taping compounds’. Science 189, 551–553 (1975). 82 Verma, D. K. & Middleton, C. G., ‘Occupational exposure to asbestos in the drywall taping process’. American Industrial Hygiene Association Journal 41, 264–269 (1980).


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material debris or use of HEPA vacuuming and wet wiping techniques yielded average fibre concentrations

ranging from 0.03 to 0.2 fibres/ml for short-term and longer term samples. The reviewers provide a

discussion of the limitations with these data, which relate primarily to differences in sampling

methodologies or workplace environments, the details of which were not always reported by study

authors.

Further, the Asbestos Research Council (ARC) dust survey found that: for dry brushing up of Turnabestos

or Asbestolux insulation boards, the average concentration was 19.4 fibres per ml. For AIB, brushing up

was the activity that produced the smallest average dust concentration; handling (open site), handling

(enclosed site), sawing with either hand saw or power saw, surforming, drilling and fixing to structures

and bagging off dust from extractor all had higher average concentrations. For dry brushing up of semi-

compressed partition board (AC sheet) the average breathing zone concentration was 15.0 fibres per ml;

for Turnabestos or Asbestolux ceiling panels the average breathing zone concentration was 1.4 fibres per

ml. Unstacking, sawing and re-stacking, cutting holes with hand held drill, handling board after drilling and

fixing to structures produced higher average dust concentrations than brushing up However, for many of

these tasks, the lowest recorded concentration was lower than the average concentration for sweeping.

For ceiling panels, brushing up was the activity with the lowest average concentration, which was also

lower than the lowest recorded concentration for sawing with a hand saw, bevelling, fixing with screws

and fixing with adhesive. Only one measurement was taken for each material. However, the levels of dust

were tested under varying conditions and efficiency of dust extraction.83 It must not therefore be assumed

that the results reflect the exact amount of dust emitted when cutting or handling any particular product.

In 2005 the Health and Safety Laboratory reported on measurements of airborne fibre concentrations

released during the maintenance and removal of chrysotile containing textured decorative plasters and

paints.84 For removal of textured decorative coating from the kitchen ceiling and wall of a house, following

application of a glycol ether/ethanol gel, the personal concentration of fibres from scraping ceiling and

sweeping was 0.07 fibres per ml. This is estimated to be the peak worker exposure, and the authors of the

report estimate that workers will spend no more than a quarter of the time during a removal with peak

exposure. This means that their cumulative exposure if likely to be at least 5 times lower than the peak

average. Simulation of removal activity in a house was carried out. The test was done dry, with no

extraction and with doors and windows closed to simulate conditions of poor control. The concentrations

of fibres during dry sweeping of floor debris after scraping were between 0.02 and 0.04 fibres per ml. A

series of simulations in a small volume test cabin with no ventilation were also carried out by HSL. Due to

the test conditions these results are likely to be significantly higher than would be found at most sites and

demonstrate the likely upper levels of airborne fibre concentrations. For Artex powder, the fibre

concentration was 1.6 fibres per ml when sweeping.

We now provide a comparison of the findings on exposure from all of the aforementioned studies in the

table below:

83 ARC Dust Survey Phase II. 84 Health and Safety Laboratory, Airborne fibre concentration during the removal of asbestos containing textured decorative plasters and paints and the risk to workers, IFS/05/13, 2005.


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Among these studies, the highest detected concentration of airborne fibres was 1191 fibres per ml,

reported by Harries, for sweeping and bagging amosite debris in pipe lagging. The lowest concentrations

were reported by Mowat for sweeping Bakelite. Without the Mowat study, the lowest concentration

reported was 1.4 fibres per ml, reported in the ARC dust survey, for brushing up debris from AIB ceiling

panels.

In the review by Williams, difficulties in the comparison of data between studies are discussed. Limitations

of the data include: many of the published or unpublished studies do not provide sufficient detail with


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respect to their study approach or design to be able to fully understand the type or duration of exposure;

the definition or classification of various job tasks was not always readily transparent in the published

literature and may have differed based on study design, industry or time period; air sampling data

collected prior to the late 1960s have a lower degree of precision than those collected in later years (no

studies included here were earlier than the late 1960s);

different sampling methodologies were used to collect the air samples, and consistency and precision of

the analytical measures also varied considerably over time; the available air sampling data were not

sufficient to characterise the distribution of fibre concentrations during specific tasks (few studies

reported on the statistical variance in their data) and; the data were not adequate to determine the types

and proportions of asbestos fibres encountered in different occupational settings.

HOW DO LEVELS FROM SWEEPING COMPARE WITH LEVELS FROM OTHER ACTIVITIES?

The following table appears in the HSE report HSG 213 (2001)85:

This shows that sweeping AIB debris is one of the activities with the highest potential for exposure, along

with dry removal of sprayed (limpet) coating and dry removal of lagging.

The small amount of data available contains substantial variations, not only in the airborne concentrations

produced by sweeping but also in the relative concentrations from sweeping compared to other activities.

Some papers, HSG 213, HSG 189-2 and Harries, found that sweeping was an activity that produced one of

the highest concentrations of airborne fibres, whereas the ARC dust survey found that it produced a

relatively low concentration. However, comparing results from different studies is non-trivial, because the

studies differed with regard to the type of asbestos material being studied, the

workplace/industry/occupational group being studied, the numbers of samples taken, the time periods

over which samples were taken, and the methods of determining the fibre concentrations.

85 Ibid


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JUDICIAL DISCUSSION

In the recent judgment of Bussey, some useful comments were made regarding asbestos exposure as a

result of sweeping asbestos. In this case the deceased had worked mainly in domestic heating and

plumbing work. His exposure came from cutting asbestos cement pipes, usually flue pipes from a boiler

or a gas fire, with a hacksaw and also from handling asbestos rope, from which a length was teased out

and then used to caulk joints on the new flue pipes. The asbestos used was almost always chrysotile. Dust

was produced from the cutting although much of it was from the cement used in the pipes. There could

be three or four cuts in relation to each flue and each cut would take about 5 minutes. After carrying out

this work the deceased would blow on the cut end of the pipe and sweep up which produced visible dust

as it was done.

In relation to the level of exposure caused by these activities the claimant’s expert concluded (after

originally stating that it was ‘anyone’s guess’) that the airborne fibre concentration for fitting rope was

only a very small proportion of the amount reported by Harries (mean 118 fibres/ml), of 10 fibres/ml. In

response to this HHJ Yelton, stated:

‘I am not satisfied that I can take the figure here as being as high as 10 and I do not think that comparison

between the deceased’s circumstances and those prevailing in the Navy dockyard are at all helpful’.

This is an example of Harries’ high fibre concentrations being considered unsuitable for estimation of

exposure levels from tasks outside dockyards.

Turning to the level of exposure caused by sweeping, the claimant’s expert thought that might be as high

as 100 fibres/ml. The defendant’s expert did not agree with this figure and thought that the levels in

relation to this activity would be very low. In addition, he thought that much of the pipe cutting which

caused the dust which was eventually swept, would have been carried on outside and that the sweeping

of any such dust would produce similar levels of asbestos dust in the atmosphere to that from cutting.

The judge held that:

‘I think he was correct about that and that Mr. Brady’s [claimant expert] view that it was anything like as

high as 100 is not sustainable. Sweeping took place after a job which involved cutting and seems unlikely

to have taken more than a few minutes’.

As such, he went on to say:

‘I also bear in mind that the exposure to asbestos in this case was very limited in time. On the basis that

the deceased was involved in the cutting of flue pipes once every two or three weeks, his involvement

with the dust was not in my judgment substantial although not de minimis. On the figures set out above

(which can only be estimates) the deceased was exposed to asbestos dust for up to an hour once every

two to three weeks’.

So HHJ Yelton found that sweeping would lead to no higher exposure than the activity that generated the

dust being swept.


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However, the notion that sweeping would lead to no higher exposure than the activity that generated the

dust may be disputed upon further consideration. Activities such as cutting of AIB may take place a

number of times during one day, or be undertaken by several people at the same time. If the area is swept

every few hours or at the end of the day, the amount of dust that has accumulated on the floor from

multiple boards being cut is much more than from the cutting of one piece of board by one person.

Therefore the airborne concentration generated by sweeping could be much higher than the

concentration reported when someone is cutting AIB. Though sweeping is a short-term activity, it does

pose risk to the standard of 12 fibres per mL for 10 minutes weighting set in TDN13 (see below), depending

on the asbestos content of the material.

This was made clear in Billingham v John Barnsley,86 in which the deceased had been employed by the

defendant in 1968/9 and 1969/70 at a power station where plant or equipment was installed and pipes

would be lagged. Dry sweeping of asbestos was carried on but only of the floors. The deceased carried

out testing the strength of girders. It was alleged that the deceased, as part of the testing, would throw a

chain up, feed it over the girder and catch it on the other side and then drag the chain across the dusty

girder, covering himself in asbestos dust which had settled there from asbestos lagged pipes.

The Judge found that the claimant was exposed for short periods to very high airborne fibre

concentrations for half a minute or a minute at a time, possibly as high as 100 fibres/ml in the first few

seconds, from disturbing dust on girders. He found that this exposure was far more than the levels which

were to be set out in TDN13 a year or two later. The Judge found that the employers negligently failed to

comply with their duty of care and the claim was successful. A possible difference between this exposure

and that from sweeping is that this claimant was likely exposed to high concentrations many times a day,

and one would not expect to sweep many times a day.

Sweeping can generate relatively large quantities of dust, but sweeping tasks do not take up too much

time compared to other activities, so the elevated dust levels will not be sustained for long periods of

time. It would depend upon the full range of a worker’s duties and their relative durations what proportion

of their total asbestos exposure was due to sweeping. A worker such as a painter, who perhaps has to

sweep up debris left by other workers but then has little exposure to asbestos dust, would have a

significant proportion of their exposure caused by sweeping. Conversely, for a worker undertaking tasks

such as machine cutting followed by a short time sweeping, the majority of their exposure to asbestos

would likely be due to other tasks. The exposure profile of each case needs to be considered individually.

RISK CONTROL

The 1967 ARC guidance was focused on risks to workers who were directly involved in working with

asbestos materials.87 It was stated that: ‘where hand-cutting and working has to take place regularly, a

dust exhaust system will often not be possible. Where any risk of inhaling asbestos dust is present,

operative should wear approved type respirators’. It was also stated that: ‘Floors should be kept free of

86 Hill v John Barnsley [2013] EWHC 520 (QB). 87 The Asbestosis Research Council (1967) ‘Recommended Code of Practice For Handling, Working and Fixing of Asbestos and Asbestos Cement Products in the Building and Construction Industries’.


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cutting dust, using portable industrial vacuum cleaning equipment. In the event of this not being available,

the floor can be lightly sprinkled with damp sawdust immediately before sweeping up’.

An alternative to sweeping that has a much lower potential for release of fibres into the air is vacuuming

with a Type H vacuum cleaner. This is a vacuum cleaner fitted with a high efficiency filter that removes

very small particles, such as asbestos fibres, from the discharged air. Most domestic vacuum cleaners do

not have such a filter, and would blow fibres back into the air.

HOW DO THESE CONCENTRATIONS COMPARE WITH EXPOSURE LIMITS AND STANDARDS AND COMPLY

WITH LEGISLATION?

A control limit is a maximum concentration of asbestos fibres in the air, averaged over any continuous 8

hour, 4-hour or 10-minute period. Employees must not be exposed above this level. The hygiene guidance

limits for asbestos between 1960 and 1990 are shown in the table below:


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The results from most of the studies discussed in this feature suggest that these control limits would likely

be exceeded enormously during sweeping activities in the past. However, it has been suggested in Bussey

that some of these levels seen in the studies e.g. Harrie, were not in fact sustainable and instead would

only produce levels of asbestos exposure no higher than the activity that generated it.

CONCLUSION


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There are few reported data regarding airborne concentrations of asbestos fibres produced during

sweeping, and it is difficult to compare data between studies, for a number of reasons. Some of the data

reported in studies is based on a single measurement. Sweeping has the potential to produce relatively

large concentrations of airborne asbestos fibres, though it is unlikely to be performed for long periods of

time. Consideration of the whole range of tasks performed by a worker is required in order to determine

whether sweeping made a significant contribution to their overall exposure to airborne asbestos fibres.

Brexit Minister Causes Controversy Over Asbestos Track Record (BCDN Edition

191)

This month, the Prime Minister, appointed Steve Baker MP as the Junior ‘Brexit’ Minister. The

appointment has caused controversy due to Mr Baker’s history of campaigning for reform of asbestos

controls.88

In particular, the union, Unite, has raised concerns over the appointment, referencing parliamentary

questions posed by Mr Baker in October 2010 in which he asked the secretary of state for work and

pensions, (then) Chris Grayling: ‘If he will bring forward proposals to amend the provisions of the Control

of Asbestos at Work Regulations 2002 to distinguish the white form of asbestos and the blue and brown

forms of that substance’. He then went on to request that an inquiry be commissioned into the

appropriateness of the health and safety precautions in force in respect of asbestos cement.89

These comments relate to the relaxation of law on control and use of chrysotile which is a very

controversial global topic.

There are two mineral groups within asbestos: Amphibole and Serpentine. Within these two main groups

there are further, distinct types of asbestos, as shown in the following diagram:

88 Ben Kentish, ‘Theresa May Names Eurosceptic MP Steve Baker As Junior Brexit Minister Under David Davis’ (The Independent 13 June 2017)< http://www.independent.co.uk/news/uk/politics/theresa-may-steve-baker-eurosceptic-junior-brexit-minister-david-davis-exiting-eu-european-union-a7788226.html> accessed 26 June 2017. 89 HC Deb 27 October 2010, col 314W.

http://www.independent.co.uk/news/uk/politics/theresa-may-steve-baker-eurosceptic-junior-brexit-minister-david-davis-exiting-eu-european-union-a7788226.html

http://www.independent.co.uk/news/uk/politics/theresa-may-steve-baker-eurosceptic-junior-brexit-minister-david-davis-exiting-eu-european-union-a7788226.html


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Three main types of asbestos fibres were commercially used in the UK: crocidolite (blue), amosite (brown)

and chrysotile (white).

All 3 types are generally thought to create a risk of dangerous health effects in humans, though crocidolite

and amosite are more dangerous than chrysotile. In practice this was reflected by differing & lower

occupational hygiene exposure limits applied to crocidolite & amosite asbestos in the UK since 1970 as

against white asbestos.

Importation of crocidolite in the UK was banned after 1970 due to developing knowledge in the 1960s of

its particular carcinogenic potency and association with mesothelioma. Amosite however, continued to

be widely imported and used until about 1980. Chrysotile imports and use continued into the 1980s, but

then declining until a total import ban came into effect in 1999.

However, in many other countries around the world, such as Canada, Russia and Brazil asbestos continues

to be mined. It also continues to be used and imported in the US to a limited extent. Its use is also

widespread in developing countries such as China, India and Brazil.90

Image Source: Asbestos.com: Worldwide Asbestos Maps

90 Arthur L Frank MD, The Global Spread of Asbestos, Annals of Global Health Vol 80, Issue 4, July-August 2014 257-262.


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It has long been argued by some that chrysotile is ‘safe’ and does not cause asbestos diseases such as

asbestosis, lung cancer and mesothelioma.91 This position has caused much controversy and many

worldwide public health bodies, such as WHO, say that chrysotile kills thousands of people and call for the

complete ban on the use of all asbestos worldwide.

The law relating to asbestos prohibition in the UK and the controls on how existing asbestos is handled is

mostly governed by European Union legislation, hence the concern over Mr Baker’s new role. Unite state:

‘Much of the existing legislation, which bans the use of asbestos and controls how the substance is

removed, is governed by European Union legislation. Mr Baker’s appointment raises concerns that when

the so-called ‘Great Reform Bill’ becomes law, he will be able to use his position to weaken asbestos laws,

bypassing effective parliamentary scrutiny’.

91 International Chrysotile Association, ‘Safe Use of Chrysotile’ http://chrysotileassociation.com/en/sfuse/default.php accessed 29 June 2017.

http://chrysotileassociation.com/en/sfuse/default.php%20accessed%2029%20June%202017


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We will be looking at the issue of whether chrysotile is safe in future editions of BC Disease News.

Feature: Fatal Damages Series: Part 1: An Example of the Judicial Approach to

Assessment: Grant (Widow & Executrix of the Estate of Douglas Michael Grant,

Deceased) v Secretary of State for Transport (2017) (BCDN Edition 193)

INTRODUCTION

Following our recent series of features on breach of duty in mesothelioma claims, we now turn our focus

to assessment of damages in these claims. Whilst this series will have an emphasis on quantum in fatal

and ‘lost years’ disease claims, much of it has equal application to any personal injury claims. As with the

mesothelioma series, we will also be supplementing this series of features with a practical and easy to use

guide.

Throughout the series we will be looking at both fatal and ‘lost years’ claims. Fatal claims arise where the

person exposed to a harmful substance / injured has died and the claim is pursued by the

estate/dependent(s) of the deceased. These claims are governed entirely under the statutory provisions

of the Fatal Accidents Act 1976 (FAA) and the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA).

‘Lost years’ claims arise where the claimant is still alive but has a reduced life expectancy as a result of the

exposure / injury.

As an introduction to some of the more typical heads of loss, in this feature we consider the recent

decision of Grant (Widow & Executrix of the Estate of Douglas Michael Grant, Deceased) v Secretary of

State for Transport [2017] EWHC 1663 (QB), which provides a useful illustration of how the courts

approach the assessment of these types of claims and reportedly awarded the highest ever PSLA award

for mesothelioma.92 We will then go on to look at each head of loss and quantum in more detail in future

editions of this series.

FACTS

The deceased was a previous employee of British Railways Board (BRB) from 1959 until December 1960

during which time he was based in the boiler shop and was exposed to asbestos in the course of his work.

He began experiencing pain in his chest in July 2011 at the age of 67 and in November 2011 he was

diagnosed with mesothelioma. He had three courses of chemotherapy but during the latter part of 2014

his condition deteriorated and as a result he died in November 2014, aged 70.

The deceased, after having left BRB had built up a successful business in fruit and vegetables which

eventually allowed him to sell the business and properties for £1.35 million which he used partly to build

a house for himself on farmland and on the majority of the rest he built a golf course, club house and

92 12 KBW, ‘Harry Steinberg QC and Patrick Kerr Obtain Highest Ever PSLA Award for Mesothelioma In Case Which Sees The Return of Intangible Benefits’ (12 Kings Bench Walk 4 July 2017)< https://www.12kbw.co.uk/harry-steinberg-qc-patrick-kerr-obtain-highest-ever-psla-award-mesothelioma-case-sees-return-intangible-benefits/ > accessed 13 July 2017.

https://www.12kbw.co.uk/harry-steinberg-qc-patrick-kerr-obtain-highest-ever-psla-award-mesothelioma-case-sees-return-intangible-benefits/

https://www.12kbw.co.uk/harry-steinberg-qc-patrick-kerr-obtain-highest-ever-psla-award-mesothelioma-case-sees-return-intangible-benefits/


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driving range which opened in 2010. During this time he had also established and sold a successful

company selling and recycling stone and tarmac which he sold for £778,000. When the golf course was

opened in 2010 it was managed by himself, and he also employed a chef, receptionist and green keeper.

With the last of the remaining land, the deceased had aimed to use it for development purposes, it was

accepted at trial that his intention was to derive income from this piece of land.

The deceased’s wife brought a claim under the LRMPA and the FAA. The defendant was the successor to

the liabilities of BRB and accepted liability however, a number of heads of loss were in dispute:

Under the LRMPA:

- PSLA

- Care and assistance

- Business expenses

- Certain miscellaneous expenses

- Certain funeral expenses

Under the FAA:

- Past income dependency

- Pas services dependency: domestic services

- Past services dependency: business services

- Future income dependency;

- Future services dependency;

- Loss of intangible benefits

We will now briefly outline the court’s approach to the heads of loss in which some noteworthy comments

were made.

PSLA

In order to understand the dispute as to the award for pain, suffering and loss of amenity, it is necessary

to outline the course of the deceased’s illness. As we have already mentioned, the first symptoms were

experienced in 2011 and consisted of chest pains and breathlessness. A referral was made by his GP for

an X-ray. On three occasions, fluid had to be aspirated from his pleural cavity. He was subsequently

referred for a pleural biopsy and in November 2011, diagnosed with mesothelioma. Following diagnosis,

the deceased had two courses of chemotherapy, each consisted of six cycles with breaks in between

throughout 2011 and 2013. In 2014 he had a third course of chemotherapy which was an experimental

treatment by way of tablets. This treatment was ineffective and in October 2014 he was referred for

palliative radiotherapy but he died before the treatment could commence.

The claimant described some of the symptoms suffered by the deceased during this time which included

ringing in the ears and hallucinations as well as nausea and vomiting. From July 2014, the deceased began

to experience severe pain in his chest and back. Higher doses of morphine were prescribed and the

deceased became increasingly incapacitated, although eventually it became impossible to control the

deceased’s pain.


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In considering what award to allow for PSLA the parties agreed that the JC Guidelines should form the

basis of the judge’s assessment. The Guidelines suggest a bracket of £53,200 to £95,700 and the parties

agreed that the award in this case should be towards the upper end of the bracket given that the duration

of the symptoms from onset to death was 40 months which was considerably longer than usual for cases

of mesothelioma.

The claimant put forward a number of comparable cases in which the claimant had been awarded close

the top end of this bracket. The defendant submitted that the deceased’s symptoms were not sufficiently

far from the norm to justify an award right at the top end of the bracket. In response to this, Deputy High

Court Judge Chamberlain Q.C stated:

‘I bear in mind that some of the symptoms suffered by Mr Grant were typical for mesothelioma. But the

evidence discloses five factors that justify an award close to the top end of the bracket in this case. First,

the duration of Mr Grant’s symptoms (40 months) was unusually long. Second, he had three courses of

chemotherapy, which at times had extremely unpleasant side-effects, described by the claimant in her

witness statement and evidence. These included not only the nausea, vomiting and general debilitation

often associated with chemotherapy, but also hallucinations, which must have been frightening for Mr

Grant, as they plainly were for the claimant. Third, although the evidence established that Mr Grant

sometimes worked for long hours after his diagnosis, at least in the period before 2014, the claimant

described him suffering symptoms of breathlessness, intermittent pain and night sweats during this period.

He was prescribed morphine from January 2014 and reported severe pain form July 2014. Fourth, the pain

Mr Grant endured in the last months of his life, between July and November 2014 was, on the evidence,

extreme. It was not adequately controlled by medication. The claimant describes Mr Grant waking during

the night, both at the Great Western Hospital and in the last week of his life at the Prospect Hospice, crying

out in pain and asking to be allowed to die. He was completely incapacitated in these last months and

doubly incontinent. Fifth, Mr Muir’s evidence establishes that Mr Grant was concerned to ensure that the

claimant was provided for after his death. The discussions he initiated with Mr Muir and the incorporation

of HBP were directed to that end. But he must have known that the success of the development was far

from certain and this would, I find, have been a significant source of concern to him in his last months’.

As a result the judge held that the appropriate award for PSLA was £92,500. We will discuss in more detail

the effect the JC Guidelines have on an assessment of a PSLA award and also the approach that the courts

take to comparable cases, in future features in this series.

It is noteworthy that the duration of the deceased’s symptoms was the primary consideration of the judge

in this case. We have previously discussed advances in chemotherapy, radiotherapy and immunotherapy

in relation to the treatment of mesothelioma. Invariably if life expectancy is extended by these treatments

then will awards at the high end of the JC Guidelines become more frequent?

Readers can access our mesothelioma PSLA guide which contains a ready reckoner table of comparable

cases by duration of symptoms and award size (here).

Care and Assistance


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The claimant claimed for care provided by her to the deceased for 3 hours per day in the period from

September 2011 to September 2014, an additional 9 hours per day for the periods of chemotherapy, 10

hours per day reflecting fulltime care in the period September to November 2014, 9.5 hours per day from

12 to 18 November 2014 when the deceased was at the Prospect Hospice and time spent travelling to and

from hospital/hospice and visiting the deceased.

The defendant attempted to rely on the principle established in Evans v Pontypridd Roofing Ltd [2001]

EWCA Civ 11657 and applied in Huntley v Simmonds [2009] EWHC 405 (QB), where there was no award

for the time spent by relatives in hospital visits in the absence of evidence that they were providing

services not provided by the hospital staff. However, this was dismissed by Chamberlain Q.C. as the

patient in that case had been in a coma and so was not receiving emotional support. However, it was

noted that some of the sums claimed for during the periods when the deceased was in hospital were too

high, as although some allowance may be made for the emotional support provided at these times, the

award should be modest.

Following a review of some of the well-established authorities relating to this head of loss, the judge

determined at para 31:

‘There is nothing in the authorities to which I was referred that rules out an award for the time spent in

providing emotional, as well as physical, support. I suspect that many professional nurses, especially those

practising in palliative care, would find it hard to draw a clear distinction between the two. Sometimes,

the care required will be physical; at other times, it will consist simply of comfort. In the case of a patient

like Mr Grant suffering from hallucinations or night sweats, for example, some nursing care was plainly

required’.

As such he concluded that a distinction between emotional and physical care would be artificial as long as

the need for it arises from the injury for which the defendant is responsible.

The judge also rejected total reliance on the deceased’s medical records, as he said this would result in an

‘underestimation of the evidential value of the claimant’s own description of her husband’s symptoms

and the care she provided in relation to them’. This was specifically in relation to the claimant’s evidence

that the deceased suffered from hallucinations and vomiting, which were symptoms not recorded in the

medical evidence.

An award of £29,000 was made for nursing and assistance, significantly lower than the £43,000 originally

claimed, but higher than typical awards in fatal mesothelioma claims.

Business Expenses

This head of loss was claimed for the costs of paying three individuals to perform tasks in the golf course

business that the deceased and the claimant would have done if the deceased had not become ill.

However, the defendant pointed out that there was insufficient evidence of these payments and as such

the judge noted that the comments of Lord Goddard CJ in Bonham-Carter v Hyde Park Hotel Ltd (1948) 64

TLR 177 would apply, namely that:


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‘Plaintiffs must understand that, if they bring actions for damages it is for them to prove their damage; it

is not enough to write down particulars, and, so to speak, throw them at the head of the court, saying:

“This is what I have lost, I ask you to give me these damages”. They have to prove it’.

In this case the judge accepted that there was some evidence that the individuals had indeed been paid

and noted that it was the deceased that would have organised payment rather than the claimant herself,

however, she could have requested evidence from the individuals themselves but had failed to do so. In

spite of this the claimant was awarded £5,000 under this head of loss.

Funeral Expenses

The cost of the headstone (£4,867) and the funeral reception (£1,875) were disputed. The authority of

Gammell v Wilson [1982] AC 27, was relied upon as authority for the proposition that the cost of a

headstone is in principle allowed as part of ‘funeral expenses’ under the LRMPA. However, Chamberlain

Q.C. deemed the cost too high and as such only allowed £1,200.

The principle in Gammell was again followed and it was held that the costs of a reception are

irrecoverable. The judge held at para 55:

‘I am not convinced that they [authorities] are wrong. Receptions are not always held after a funeral. When

they are held, there is no invariable practice of providing refreshments. This makes it difficult to suppose

that Parliament intended to include them within “funeral expenses” in s. 1(2) (c) of the 1934 Act (or for

that matter in s.3 (5) of the 1976 Act)’.

Dependency Claim

A dependency claim was made for past and future income and financial support lost as a result of the

deceased’s death. In terms of the past income, it was agreed that the joint income on death was

£10,629.32 and the appropriate dependency ratio was two thirds, which gave an annual dependency of

£7,086.57. The claimant’s income of £1,792.44 would have to be deducted from this so that an annual

loss of £5,294.13 suffered by the claimant as a result of the death of her husband could be reached. The

defendant contested this on the grounds that this loss was set off against the more substantial losses of

the golf club which was set up by the deceased.

Chamberlain Q.C. disagreed and held at para 61:

‘Approaching the matter from first principles, the Defendant’s primary contention is difficult to accept…The

larger part of this loss reflects the state pension that Mr Grant would have continued to receive (and from

which the claimant would have continued to benefit) had he not died. It is nothing to the point that, at the

time of death, the losses incurred in running the golf club were considerably greater than the couple’s joint

income: if the claimant had not chosen to sell the golf club, she might still be incurring them, but without

the additional income derived largely from Mr Grant’s pension. The key question is whether Mr Grant’s

death made the claimant worse off in terms of income. On the agreed facts, the answer is yes’.


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As such it was concluded that the claimant was entitled to be compensated for that lost income and was

awarded £12,814.

The largest part of the dependency came from the future income dependency in respect of the

development of the land left over after the building of the golf club which it was accepted the deceased

had aimed to use for development purposes and to derive some income. The defendant disputed the

claim in its entirety on the grounds that at the time of the deceased's death, planning permission had not

been granted and in any event, the deceased would have needed to hire professional support in order to

make a success of the venture and so his contribution to the success of the development was doubted.

In this regard, the judge held that the deceased had ‘energy, drive and propensity for hard work’ and so

would have made a success of the development albeit with the assistance of professional advice. It was

necessary to financially estimate what contribution the deceased would have made to the venture and

this was a complicated process:

‘Some discount must then be made to reflect my finding that Mr Grant would in any event have had to

engage the services of a property development consultant for assistance and advice in relation to some

tasks. It is difficult to assess with accuracy how much work would have been done by Mr Grant and how

much by the consultant. I bear in mind that Mr Grant may well have required more help at the start of the

project (as he learned how to manage and promote a large scale commercial development), but it is also

relevant that Mr Grant was 70 years old when he died and it is likely that his capacity to undertake work

on the development would decline as he approached 80. Bearing this in mind, I assess the value of the

contribution he would have made to the development at 50% of the cost of employing a consultant on the

terms set out in Mr Preece’s report’.

As such, it was found that this was a compensable head of loss in principle but as the judge had assessed

the value of this head of loss using a method which was not advanced at trial by either party, neither party

had the opportunity to make submission and therefore the calculation of the amount to be awarded was

adjourned to allow the parties to make submissions.

Loss of Intangible Benefits

We have discussed the topic of ‘intangible benefits’ several times in BC Disease News, most recently in

edition 177 (here) in relation to the recent conflicting decisions of Wolstenholme v Leach’s of Shudehill

Ltd [2016] EWHC 588 (QC) and Mosson v Spousal (London) Ltd [2015] EWHC 53 (QB).

‘Intangible benefits’ refer to the children and partner of the deceased being left without a mother/wife

or, more often, a father/husband. Of course, they can bring a dependency claim under the Fatal Accidents

Act 1976 for future financial losses and loss of future services that would have otherwise been provided

but for the death. However, the services provided by a parent or partner go far beyond that which could

be replaced by commercially sourced services. Parental life guidance, for example, is irreplaceable.

However, the general rule under the Fatal Accidents Act is that damages are solely for lost financial

dependency. We posed the question, in previous editions, are ‘intangible’ services compensable?


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In Mosson, it was held that there was ‘no proper jurisprudential foundation’ for these claims.

The claimant in Grant said that she had ‘lost not just someone who provided income, services and care;

but the convenience, comfort and security of having someone who gave this help out of love and affection.

She has also lost the deceased’s emotional support, kindness and companionship’.

The defendant relied on Mosson, and submitted that this is not a recoverable head of loss.

Chamberlain QC examined the authorities in this area, which we will not repeat here but will look at in

more detail in a future feature in this series. He derived the following principles:

1. Aside from the award for bereavement, there can be no claim under the 1976 Act for non-pecuniary

loss. This means that there is no right to compensation for loss of ‘emotional support, kindness and

companionship’.

2. The courts have sometimes recognised that a dependant may suffer a pecuniary loss as a result of the

death of a relative that is not adequately compensated by an award for services dependency. The award

for services dependency is calculated with reference to the cost of replacing those services commercially

and this cost may be an imperfect proxy for the true value of the deceased’s services lost.

3. There is a separate reason why an award for services dependency, calculated by reference to the cost

of replacement services, may be inadequate to value the loss of the deceased’s services. A wife whose

husband used to do all the minor repair work around the house now has to find and choose the painter,

plumber, decorator et al and make the arrangements for them to come and do what needs to be done.

These are things she did not have to do before. The time spent by the claimant in doing them has a

pecuniary value.

As such, it was concluded that the judge in Mosson was incorrect to find that cases which allowed claims

for loss of intangible benefits lack a proper jurisprudential foundation because they offend the principle

that damages are available for pecuniary loss only. As such, he awarded a modest sum of £2,500 for this

loss.

CONCLUSION

This decision provides useful judicial guidance for assessment of damages in fatal damages claims. Whilst

we have only briefly discussed some of the more interesting findings in this decision, next week we will

begin to look at these heads of loss in more detail, starting with PSLA, as part of our fatal damages

quantum series.

The full judgment in Grant can be accessed here.

Appeal Granted in Bussey v Anglia Heating (2017) (BCDN Edition 194)

http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2017/1663.html&query=(title:(+grant+))


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We previously reported on the asbestos decision of Bussey, in edition 185 (here). In this decision, the High

Court held itself to be bound by Williams v University of Birmingham [2011] EWCA Civ 1242, and found

that a widow’s claim for damages following her husband’s death from mesothelioma failed. She could not

prove, on the balance of probabilities, that the levels of his exposure to asbestos, during the course of his

employment, exceeded that set out in TDN 13 of 1970. As such, the risk of the deceased contracting

mesothelioma was not foreseeable.

It has now been reported that the claimant applied for permission to appeal on two grounds:93

1. The determination of the level of exposure;

2. The application of Williams to the facts of this case.

Permission has this week been granted and the case will be heard before the Court of Appeal in due

course. We will continue to keep readers abreast of any developments.

Asbestos Shipping Industry Judgment: Oldman v DEFRA (2017) (BCDN Edition 194)

This week, we report on the latest first instance asbestos decision to consider the application of Williams

v University of Birmingham [2011] EWCA Civ 1242. In Oldman v DEFRA (County Court at Norwich, 20th April

2017), HHJ Maloney Q.C. held that this case, concerning exposure during work on ship engines, was most

factually similar to that of Jeromson v Shell Tankers UK Ltd [2001] I.C.R. 1223, in terms of the work carried

out and the dates and levels of exposure. As such, Williams was not applied and it was held that the

defendant, as in Jeromson, was under a duty to reduce the risk of exposure to asbestos to the greatest

extent possible.

Facts

The claim was brought by the deceased’s son, as executor of his father’s estate, against DEFRA, the

successor of the Ministry of Agriculture, Fisheries and Food, which employed the claimant between 1951

and 1983, firstly as a sailor on a fishery research vessel and then moving to work on ship steam engines.

In the early 1960s, the deceased retrained as a diesel engineer until 1983, when he retired from the sea,

but continued to work for MAFF as a night watchman.

In 2010, when the deceased was 84 years of age, he began to suffer from respiratory problems and, in

December 2012, he was diagnosed with pleural thickening, which was thought to be caused by exposure

to asbestos. When the deceased was initially diagnosed in December 2012, he denied that he had worked

with or had been exposed to asbestos, although he eventually said, later that month, that whilst he didn’t

work with asbestos, he had been told that he had been exposed to it on the ships he worked on.

The deceased began showing signs of dementia in December 2013 and, in January 2014, he successfully

applied for disability benefit on the basis of his respiratory disease. During this application, he said that

during his time with MAFF as a marine engineer, he had lagged pipes, but was unaware that he was

93 Max Archer and Kate Boakes, ‘Permission to Appeal Granted in Bussey: The Beginning of the End for Williams?’ (Asbestos Law Blog 17 July 2017)< https://asbestoslawblog.wordpress.com/> accessed 17 July 2017.

https://www.bc-legal.co.uk/images/pdf/185-BC-Disease-News-2017-05-19-Edition-185.pdf

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working with asbestos. He also stated that he was not provided with dust protection at that time. In March

2015, the deceased made contact with a claimant solicitor and gave a witness statement. He gave a fair

amount of detail about carrying out work on lagged pipes and being covered in dust, both whilst working

and once in his cabin of a night.

The defendant submitted that the court should rely on the earliest statement made by the deceased,

namely that he had not been exposed to asbestos. By the time the later statements were made, the

deceased’s dementia was advancing. The claimant, the deceased’s son, argued that his father’s deafness

may have caused him to give incorrect answers to the doctors in 2012. This was rejected by the judge,

who determined that the 2014 benefits questionnaire was likely to be the most reliable record of the

deceased’s state of knowledge, i.e. that he was not aware at the time he was working with asbestos but

was subsequently informed of this.

The 2012 statement could not be relied on as positive evidence that he had not been exposed to asbestos,

but instead as evidence that he did not realise it at that time and found out about it later.

The Claim

The claim was brought for negligence and breach of the statutory duties contained in the Ship Building

and Ship Repairing Regulations 1960 and the Asbestos Regulations 1969. However, HHJ Maloney QC, held

that these Regulations did not apply. He stated at para 4:

‘The claimant’s case is that he carried out work on asbestos lagged pipes whilst at sea and also by way of

repair and maintenance while the ship was in harbour. A ship yard is a place where ships are built or

repaired. I am not satisfied that the claimant ever worked in such an establishment. So far as work in a

harbour or wet dock goes, the regulations do not apply to work done by the masters or crew of ships.

Similarly, the 1969 regulations apply to ships only in so far as they are covered by section 126 of the

Factories Act 1961. Section 126(3) of that Act says “Nothing in this Act shall apply to work done by the

master or crew of ships”. I conclude, in the light of those provisions that both sets of regulations are

primarily intended to apply to professional dock workers and persons of that kind, but not to the masters

or crews of ships who typically work in very different conditions from those applicable to shipyards and

dockyards’.

As such, the claim could only proceed under common law negligence. Although, HHJ Maloney did rule out

the applicability of the Regulations in relation to the claim for statutory duty, he did point out that they

were still relevant in determining the existence and breach of a duty at common law.

For the purpose of the claim in negligence, the judge divided the deceased’s employment into pre-1960

exposure, when he was working on elderly steam vessels and post-1960, when he was working on the

more modern diesel vessels. He concluded that, whilst there would have been asbestos on both kinds of

ships, it was much more likely to have been disturbed whilst working on lagged pipework in the steam

vessels.


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He stated, that the existence of a duty of care depended largely on the state of knowledge at the time and

concluded that the risk of exposure to asbestos in respect of work on ships was well-known from at least

1945. What was his basis for this conclusion?

HHJ Maloney relied heavily on a letter from the Chief Inspector of Factories, dated 1945, recording the

very serious health consequences of exposure to asbestos and recommending the use of ventilation,

damping down of dust and the provision of respirators for those fitting or removing asbestos, on-board

ships. He also referred to a report, prepared in 1971 by Surgeon Commander Harris, which recorded a

survey carried out in 1967 on warships under refit. The report found that there were high concentrations

of asbestos dust arising when applying pipe insulation and lagging. The report recommended precautions

for those that carried out minor works with asbestos, such as the use of protective clothing, respirators

and showering after work.

Application of Williams

HHJ Maloney Q.C. firstly turned to the Court of Appeal case of Jeromson [2001] EWCA Civ 101, which

concerned two marine engineers working between the years 1951 and 1961 in the engine rooms of ships.

The work in question in this case was very similar to that of the deceased. Discussing the judgment, HHJ

Maloney stated at para 8:

‘The Court reviewed the literature, including the literature to which I have referred, showing that in the

period from 1951 to 1960, the threats posed by exposure to asbestos were sufficiently well-known for

employers to be under a duty to reduce their employees’ exposure to asbestos to the greatest possible

extent. The Court noted that during the 1950s, if an expert had been consulted about how to carry out that

duty, he would have recommended the provision of respirators for persons working on asbestos. The Court

of Appeal also confirmed in the Jeromson case the critical point that all that is required for liability is

knowledge that the exposure is likely to cause some form of pulmonary disease. It is not necessary for the

employer to foresee or understand the precise nature of that disease, e.g. mesothelioma as opposed to

pleural thickening’.

In relation to Williams, HHJ Maloney pointed out that this case concerned the duty owed in respect of a

very low level of exposure capable of causing mesothelioma, but not of causing other respiratory diseases,

such as pleural thickening. As such, it was not as applicable as in the Jeromson case, where the level of

exposure was much higher.

It was concluded that the nature and extent of the duty to be expected of a responsible ship-owner - in

the present case, a government department, towards its employed marine engineers in the 1950s, was

‘that at all material times, the defendant owed its engineers a duty to reduce their risk of exposure to

asbestos to the greatest extent possible’, and that this duty would only have become stronger.

Causation

The claimant’s medical report was not challenged by the defendant and it stated that pleural thickening

could occur with quite low levels of asbestos exposure. However, the deceased had been intermittently


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exposed to high levels of exposure. Further, the report stated that the pattern of the deceased’s

symptoms strongly pointed to causation by asbestos. This, the judge said, was evidence that the claimant

had been exposed to asbestos for some time during his life and that period of exposure was the cause of

his illness.

The deceased’s previous employment history was also considered, in order to determine if there could

have been exposure during those periods which might account for his illness. HHJ Maloney concluded:

‘I cannot rule out the possibility of asbestos exposure during his Royal Navy Service in the war, or while

working at the coachworks in Lowestoft, but there is no positive evidence either way. The 1945 letter, the

Harries report, and the review of the authority of the material in Jeromson all give rise, however, to a clear

picture: that, in the 1950s, ships were a strong source of asbestos and that the work of engineers on lagged

pipes was particularly likely to expose them significantly to asbestos. Therefore, even without considering

the claimant’s direct evidence, it would appear, on the balance of probabilities, that his work for MAFF

was the source of his exposure to asbestos and the cause of his disease’.

Subsequently, the issue of liability was determined in the claimant’s favour and judgment was given for

the previously agreed sum, which was £50,050.

Discussion

There has been some interesting commentary, written by Harry Steinberg Q.C. (accessible here), which

we will provide our thoughts on in a future edition of BC Disease News.

Asbestos Related Lung Cancer and Contributory Negligence: Blackmore v The

Department for Communities and Local Government [2017] EWCA Civ 1136

(BCDN Edition 195)

The Court of Appeal have this week handed down judgment in an asbestos related lung cancer claim

where the defendant had appealed the reduction made to the claimant’s damages award to account for

the deceased’s smoking.

It is well established that smoking causes lung cancer. As a result, in cases of asbestos related lung cancers

where there has been a significant smoking history post 1971 (when the first health warnings were put on

cigarette packets), deductions of 20-30% in compensation are usual to reflect contributory negligence. In

Blackmore, at first instance, the deceased had died as a result of asbestos related lung cancer but had

been a heavy smoker for the majority of his life, consequentially a reduction in damages of 30% was made

to reflect the deceased’s contributory negligence.

The facts of Blackmore were that the deceased was employed between 1966 and 1986 by the appellant’s

predecessor departments in the Devonport Dockyard as a general decorator. His work involved significant

contact with asbestos fibres, including clearing off asbestos from pipework and the preparation and

stripping of asbestos in factories. Approximately 20% of his working time was spent in conditions where

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there was asbestos dust. At no time during the 20 years was he provided with a dust mask or any

protective equipment.

Additionally, the deceased started smoking in 1950 when aged 14. He smoked around 20 cigarettes a day,

until roughly 2005 when he cut down to about 12 cigarettes a day. He tried to give up on two occasions

but was unable to do so. In 1976 he was advised to stop smoking after a spontaneous pneumothorax in

his left lung, a condition which later resolved.

His lung cancer became symptomatic in 2009 and he died on 28 October 2010 aged 74 years. Mineral fibre

analysis of the lungs post mortem indicated a quantity of total retained asbestos fibre count above the

level at which the risk of contracting lung cancer doubles.

Claims in negligence and breach of statutory duty were brought by the estate of the deceased against the

defendant who subsequently conceded causation and primary liability for death. Damages were agreed

under the Law Reform ((Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 in the sum

of £118,460.57. The case at first instance was relating entirely to the issue of what apportionment, if any,

there should be for contributory negligence as a result of the deceased’s smoking. HHJ Cotter QC assessed

contributory negligence at 30%.

The judge expressed his conclusion on contributory negligence as follows:

‘Here the claimant was a smoker long before he commenced employment with the defendant and long

before it was known to be a hazard to health. He does not have an extensive history of having been advised

to stop, tried to give up smoking twice and eventually cut down. Although the risk from smoking was

probably between double and treble the risk of asbestos, having considered all relevant features I assess

the degree of contributory negligence on the facts of this case at 30%’.

The defendant appealed this order on the following grounds:

‘The conclusion when considering the amount of contributory negligence that the defendant should bear

the lion’s share of responsibility even where the court concludes that the evidence shows that the

claimant’s smoking was a greater contribution to the cancer than asbestos exposure is wrong in law’.

As such, the appeal was not seeking to challenge the conclusion of HHJ Cotter Q.C that the relative

contributions to the increase of risk were higher for smoking than for asbestos – instead they sought to

argue that the judge had failed to translate that risk directly into an apportionment of liability on ground

of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. The defendant felt

that this should have been reflected in a higher reduction than 30%.

Giving judgment, Lord Justice Lloyd Jones concluded that the correct approach to the assessment of

contributory negligence was that summarised in Badger v Ministry of Defence [2005] EWHC 2941, in which

Stanley Burnton J stated:


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‘… [O]nce contributory negligence has been established, the court must take into account both the extent

of the claimant’s responsibility for his injury and damage and the blameworthiness of his conduct as

opposed to that of the defendant in deciding on the reduction in damages that is just and equitable. The

decision as to the appropriate reduction in the claimant’s damages is to be dealt with in a broad, jury like

and common sense way: …’

Commenting on the case before him, LJ Jones stated at para 39:

‘In carrying out the apportionment exercise under section 1 of the 1945 Act the judge in the present case

gave what I consider to be appropriate weight to all of the competing considerations and underlying

policies. Had his approach been limited to an assessment of relative contributions to causation, it would

necessarily have failed to differentiate between the blameworthiness of the employer in exposing

employees to asbestos and that of the employee in smoking. I agree with the judge that such an approach

would have been wrong in principle. There is a particular policy underlying Parliament’s strict prohibition

of the exposure of workers to asbestos and other harmful substances which needs to be reflected in the

apportionment of responsibility. Here the judge was right to give very considerable weight to the

blameworthiness of the employer in exposing its employee to asbestos in breach of a strict statutory duty

in circumstances where the dangers of asbestos to health were well known. By comparison, a lesser degree

of blame attaches to the conduct of Mr. Blackmore in continuing to smoke after the dangers of smoking

to health became known. Moreover, as the judge concluded, it was necessary to take account of the earlier

period of innocent smoking and the medical uncertainty attaching to the impact and synergistic effect of

that earlier period of innocent smoking. In all the circumstances, I consider that the judge’s apportionment

of contributory negligence at 30% was well within the range of options open to him’.

As such the appeal was dismissed and the 30% reduction of the claimant’s damages was upheld. A full

feature on this judgment follows in a future edition of BC Disease News.

The full judgment can be accessed here.

Feature: Co-Morbidities in Mesothelioma Claims, Causation and Loss of Intangible

Benefits: Magill v Panel Systems (DB Limited) [2017] EWHC 1517 (QB) (BCDN

Edition 195)

INTRODUCTION

Earlier this month the High Court handed down judgment in Magill v Panel Systems (DB Limited) [2017]

EWHC 1517 (QB) which was a mesothelioma claim brought by the estate and widow of the deceased. The

judgment provides some interesting insights into the approach of the courts to mesothelioma claims

where the deceased had pre-existing conditions.

In this article we look at the comments made in relation to causation, estimation of life expectancy and

quantum. In particular, this case takes a look again at the authorities in relation to the controversial head

of loss, ‘intangible benefits’.

http://www.bailii.org/ew/cases/EWCA/Civ/2017/1136.html


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BACKGROUND

The claim was brought by the deceased’s wife as personal representative of the estate and dependent of

her late husband who died of mesothelioma at age 60. The deceased had been employed by the defendant

as a saw man between 1975 and 1978. The defendant accepted that it had breached its duty of care by

exposing the defendant to asbestos dust and accepted that it was liable for any damage which flowed

from the development of mesothelioma but not otherwise.

The deceased did not die directly from mesothelioma but instead from a cardiac arrest, however, the

claimant claimed that but for the mesothelioma the deceased would have undergone a coronary artery

bypass graft which would have prevented his death from hypoxia following cardiac arrest. The defendant

disputed this.

Deceased’s Previous Illness

The deceased was diagnosed with an enlarged heart in 1993 probably caused by alcoholism. He had

suffered from Atrial Fibrillation since 1993 (a heart condition that causes an irregular and often abnormally

fast heart rate) but an angiogram in 1994 had shown normal coronary arteries. In 2007 he then developed

diabetes which was partially controlled with oral medication. The deceased noticed a deterioration in his

condition in 2014 when he started to become more breathless. He underwent a coronary angiography

which showed coronary artery disease which led to the recommendation that he undertake coronary

artery bypass graft surgery (CBAGS) which was then arranged for March 2015. This operation was

postponed due to a chest infection and relisted for April 2015. A chest x-ray had revealed a large pleural

effusion in the right lung which had to be drained using a chest drain, this caused the operation to be

postponed again and in May 2015 the deceased was diagnosed with mesothelioma. He then underwent

five cycles of chemotherapy over the following year. In July 2016, the deceased complained of

breathlessness and collapsed at home. An ambulance arrived seven minutes later by which point the

deceased was in cardiac arrest characterised by ventricular fibrillation (rapid, erratic heart beat). His heart

was then stabilised and performed adequately for twenty-four hours but he had suffered severe brain

injury and so treatment was withdrawn. He died on 18th July 2016.

The Issues

The issues in this were narrowed to the following points:

1. What was the cause of the cardiac arrest which precipitated the death of the deceased;

2. Whether the cardiac arrest would have taken place when it did if the deceased had undergone a

CABG operation in March/April 2015 as planned;

3. What would have been the deceased’s life expectancy had he not developed mesothelioma;

4. If the claimant’s claim was successful what the quantum of the awards for loss of love and

affection and dependency on the deceased’s services should be.

What was the cause of the cardiac arrest?


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There was complex expert evidence heard on this issue from respiratory consultants and cardiologists for

both parties which is not addressed in this feature. Having heard the evidence the judge concluded that

an acute ischaemic event (restriction of blood supply to the tissues) triggered ventricular fibrillation (the

heart twitching rather than pumping) which in turn caused the cardiac arrest.

If the deceased had undergone CABG surgery in March/April 2015 would he have avoided the cardiac

arrest in July 2016?

It was agreed between the experts that absent the mesothelioma it was probable that the deceased would

have undergone CABG surgery in March/April 2015 which would have substantially improved the

condition of the vascular flow to the heart.

The judge accepted the mesothelioma doubled the risk of death due to the absence of CAGB surgery

caused by the mesothelioma. Both counsel agreed that based on such a finding the defendant caused or

contributed to an indivisible injury, namely the arrhythmia, which caused the death of the deceased. The

judge found the defendant liable in law for the death of the deceased and any consequences which flowed

from that event, even though there may have been other competing causes.

What was the deceased’s life expectancy had he not developed mesothelioma?

Whilst there are often disagreements as to what a deceased’s life expectancy might have been but for the

injury/exposure, there is rarely controversy about which approach to adopt. This is one reason this

decision is noteworthy as there was a debate about the methodology used to determine the life

expectancy of the deceased.

The claimant relied on Ogden Tables which as the deceased’s date of birth was 8th July 1956 showed his

life expectancy would be 25.06 years according to Table 1 with 0% discount rate.

The claimant’s expert, Dr Witte adopted what was termed by the judge the ‘conventional’ approach in

personal injury litigation where there are co-morbidities. He reduced the deceased’s expectation of life

by two years because of his coronary artery disease, a further two years because of his diabetes and a

further two year to reflect the mild heart failure. This made the deceased’s life expectancy 19.5 years.

The defendant’s expert, Professor Channer, took a completely different approach. He criticised the

conventional approach of discounting from the average population as being a retrospective assessment

which failed to take into account geographical and social class differences. Additionally it failed to consider

the increased risk of cumulative causes, for example, it does not distinguish smokers from non-smokers

and does not allow for the change of circumstances over time. Instead he said that the risk per year of a

fatal event should be calculated and the time taken to reach a 51% chance of the event taking place is

taken as the average survival. He argued that many studies have calculated the risk of death in association

with individual risk factors and when they are combined, it is therefore possible to estimate the annual

risk of a fatal and non-fatal event by multiplying the individualised risk against the background risk in the

population.


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In the case of the deceased, Professor Channer said there is data on survival after triple bypass surgery in

association with impaired left ventricular function, and in the presence of diabetes and atrial fibrillation –

so it is therefore possible to predict average survival from those data sets. He also relied on the Velazquez

study (mentioned above), which showed a mortality at 6 years of follow up after CABG of over 40%. As

such he concluded that if the deceased had not developed mesothelioma when he did he would have

survived for about eight years after bypass surgery in 2015.

Interestingly, an expert report from Mr Chinu Patel, a consulting actuary and a member of the Ogden

Working Party was relied upon by the judge. His evidence was summarised as follows at para 49:

‘He also explains how the Ogden Tables work by providing multipliers based on the mortality experience

of the general UK population as a whole. These are not in dispute in this case and well understood by both

counsel. If a claimant is atypical and the court decides that he has a reduced life expectancy and this is

expressed as a reduction in normal life expectancy, then the adjustments to the standard multipliers are

relatively easy and described in the notes to the Ogden Tables’.

Commenting on the approach of Professor Channer’s approach he said:

‘He describes Professor Channer’s approach as an absolute assessment in that it is not relative to that of

a reference population. He was unable to find anything in the Ogden Tables to enable a reference point to

connect to Professor Channer’s opinion to the underlying base mortality used in the Ogden Tables. In

essence, the methodology used by Professor Channer cannot be combined with the methodology in the

Ogden Tables…’

The claimant’s chest physician, Dr Robin Rudd, also gave evidence and said that when life expectancy is

very short the best way to approach it is by using the median survival period for patients with that

condition coupled with any particular factors that might affect the individual patient. Whilst he accepted

that Professor Channer’s method was a legitimate way to approach life expectancy for someone who had

the characteristics of the study which was being used to fix the median he pointed out that where there

were multiple co-morbidities it was more difficult to find a study which reasonably matched the patient

under consideration and it was therefore more sensible to use the retrospective method and to make

deductions from the normal life expectancy to reflect each factor, as per Dr Witte’s approach.

Having heard the expert evidence on the subject, the judge concluded that both the retrospective and

prospective methods of assessment were legitimate but the prospective method adopted by Professor

Channer was dependent on the studies matching the patient concerned. So what was the data relied on

by Professor Channer a close enough match to the deceased?

He concluded:

‘In my judgment, the prospective method of life expectancy can only be preferable to the retrospective

method where the data or studies used to make the assessment are as near a fit as possible to the actual

medical condition of the claimant or deceased being assessed. In this case the constellation of the

deceased’s symptoms and co-morbidities mean that it is impossible to approach the prospective method


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of assessment with any real confidence given the material I have considered in the preceding paragraphs

of this judgment. The retrospective method of assessment is a rough and ready approach based not upon

scientific study but on clinical judgment of experienced and qualified practitioners. I doubt it is a method

they use in their clinical practice but it is a genuine attempt to answer a question which lawyers put to

them to assist the court in a way it can understand. In this case I prefer the retrospective method of

assessment as put forward by Dr Witte for the reasons I have expressed’.

As such, despite the fact that he felt Dr Witte’s estimate of 19.5 years was too optimistic, he deferred to

his expertise and accepted this calculation and therefore preferred the use of Ogden table 1 as adjusted.

QUANTUM

Dependency on the deceased’s services

The claimant made a claim for both her past and future dependency on the deceased’s services on the

following basis:

‘As a result of her husband’s death, the claimant has required assistance with tasks such as gardening, DIY

and decorating. A nominal figure of £500 per year is claimed from the date of death until trial’.

In both the claimant’s and deceased’s witness statements it was suggested that the deceased had been

mowing the lawn up to his mesothelioma diagnosis and that he and the claimant were planning on doing

quite a lot of decorating and DIY in their new home.

However, at trial the claimant had to concede that she was giving the deceased a lot of personal care prior

to the mesothelioma diagnosis and that he would have been incapable of decorating the house at that

stage.

The judge therefore concluded:

‘Whilst I accept the deceased did now the lawn at some point in the past I am not convinced he was doing

this before his diagnosis of mesothelioma. The two questionnaires he completed in 2012 and 2014 reveal

extensive disability such that the claimant was awarded a carer’s allowance…In my view these answers

are not consistent with a man who is carrying out DIY decorating and gardening at home. The impression

I got was that the claimant was acting as the deceased’s full time carer before the diagnosis of

mesothelioma and that she carried on doing just the same afterwards, albeit with the need to devote more

time to his complicated medication regime. The burden of proof is on the claimant and I am not satisfied

on balance of probability that she has lost the benefit of the deceased services in any meaningful way as

a consequence of his death’.

Loss of partner’s care and attention


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The claimant sought £5,000 for loss of partner’s care and attention. The defendant relied on the authority

of Mosson v Spousal (London) Ltd [2015] EWHC and contended that this is what the bereavement award

is for and no further award should be made.

Claims under this head are also known as claims for loss of ‘intangible benefits’. We reported on the case

of Mosson in edition 177 (here) in which we pointed out that the authorities up until Mosson, seemed to

agree that these awards were, in principle, compensable, although with a minor award available.

However, Mosson, threw this into doubt by declining to make an award under this head of loss and holding

that there was ‘no proper jurisprudential foundation’ for these claims.

HHJ Gosnell, in this case agreed with the judgment in Mosson and held that:

‘I recognise that these claims have become commonplace but I find myself in agreement with Mr Justice

Garnham [the judge in Mosson] for the same reasons he gives…I have no doubt that the claimant has lost

the care and attention of the deceased in the emotional sense and the loss of that cannot be minimised

but it does not sound in additional damages because this is exactly the loss that the bereavement award

(modest though it is) is intended to compensate for’.

He then went on to say that the origins of the claim under this head were based upon the perceived

advantages of having a service performed by a member of the family rather than a commercial provider

(and compensation for that loss). However, he noted, if the claim was actually put forward simply for loss

of love and affection, it would fail for being encompassed in the bereavement award.

As such he made no award under this head of loss.

This decision is contrary to several first instance decisions which followed Mosson. In particular, the

decision in Wolstenholme v Leach’s of Shudehill Ltd [2016] EWHC 588 (QC), in which a widow brought a

claim on behalf of her husband’s estate and as his dependent. As part of the claim, the head of loss for

loss of the special services of the husband was included. The defendant submitted that this was not a

recoverable head of loss and in doing so, relied on the judgment in Mosson. HHJ McKenna, sitting in the

High Court, held:

‘For my part, I am persuaded that such awards are indeed usual to reflect the advantages in having jobs

around the house being done by a husband or partner in his or her own time and convenience rather than

having to go out to find and choose commercial providers and to have to work around their convenience

and or availability and the decision in Mosson is, as it seems to me, contrary to the weight of authority’.

Additionally, we reported this month in edition 194 of BC Disease News (here) on the decision in Grant v

Secretary of State for Transport (2017) in which Mr Chamberlain Q.C. concluded that the judge in Mosson

was incorrect to find that cases which allowed claims for loss of intangible benefits lack of a proper

jurisprudential foundation because they offend the principle that damages are available for pecuniary loss

only. As such he awarded a modest sum of £2,500.


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It seemed then that Mosson was merely a brief departure from the authorities on claims for loss of

‘intangible benefits’ and the status quo was shortly resumed. However, the decision in Magill has caused

further uncertainty.

We will discuss this head of loss in further detail in a future feature in our fatal quantum series.

CONCLUSION

This judgment provides a useful overview of the approach to mesothelioma claims where there are issues

of co-morbidity including how life expectancy is calculated. We discuss the issue of life expectancy as part

of a wider look at heads of loss in mesothelioma quantum claims and PSLA, next week.

Additionally, this judgment is another in the recent line of first instance decisions to discuss the legitimacy

of claims for loss of ‘intangible benefits’. It throws the position into further doubt, by following the

previously thought anomalous, decision of Mosson and refusing to award any damages under this head

of loss. We will also be re-examining these types of quantum claims in detail in a future feature as part of

our fatal quantum series.


Feature: Asbestos Related Lung Cancer and Contributory Negligence: Blackmore v

The Department for Communities and Local Government [2017] EWCA Civ 1136

(BCDN Edition 196)

INTRODUCTION

We discussed last week, the Court of Appeal’s decision in the asbestos related lung cancer claim of

Blackmore v The Department for Communities and Local Government [2017] EWCA Civ 1136, in which the

defendant sought to appeal the reduction made to the claimant’s damages award to account for the

deceased’s smoking.

This week we take a closer look at some of the arguments put forward by both sides and consider the

issues surrounding contributory negligence in asbestos related lung cancer claims.

BACKGROUND

It is well established that smoking causes lung cancer. As a result, in cases of asbestos related lung cancers

where there has been a significant smoking history post 1971 (when the first health warnings were put on

cigarette packets), deductions of 20-30% in compensation are usual to reflect contributory negligence. In

Blackmore, at first instance, the deceased had died as a result of asbestos related lung cancer but had

been a heavy smoker for the majority of his life, consequentially a reduction in damages of 30% was made

to reflect the deceased’s contributory negligence.

https://www.bc-legal.co.uk/images/pdf/Magill%20v%20Panel%20Systems.pdf


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The facts of Blackmore were that the deceased was employed between 1966 and 1986 by the appellant’s

predecessor departments in the Devonport Dockyard as a general decorator. His work involved significant

contact with asbestos fibres, including clearing off asbestos from pipework and the preparation and

stripping of asbestos in factories. Approximately 20% of his working time was spent in conditions where

there was asbestos dust. At no time during the 20 years was he provided with a dust mask or any

protective equipment.

Additionally, the deceased started smoking in 1950 when aged 14. He smoked around 20 cigarettes a day,

until roughly 2005 when he cut down to about 12 cigarettes a day. He tried to give up on two occasions

but was unable to do so. In 1976 he was advised to stop smoking after a spontaneous pneumothorax in

his left lung, a condition which later resolved.

His lung cancer became symptomatic in 2009 and he died on 28 October 2010 aged 74 years. Mineral fibre

analysis of the lungs post mortem indicated a quantity of total retained asbestos fibre count above the

level at which the risk of contracting lung cancer doubles.

Claims in negligence and breach of statutory duty were brought by the estate of the deceased against the

defendant who subsequently conceded causation and primary liability for death. Damages were agreed

under the Law Reform ((Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 in the sum

of £118,460.57. The case at first instance was relating entirely to the issue of what apportionment, if any,

there should be for contributory negligence under s.1 of the Law Reform (Contributory Negligence) Act

1945. This provision states:

‘1. Apportionment of liability in case of contributory negligence

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other

person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the

person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such

extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for

the damage’.

As such, at first instance, Judge Cotter identified the specific issues requiring determination, as follows:

1. What were the relative contributions to the deceased’s death of smoking and asbestos

exposure?

2. Is the court entitled or bound to calculate the deduction for contributory negligence by

reference to a mathematical calculation as to relative contribution to risk?

It was agreed between the experts instructed on behalf of the claimant and the defendant, that:

1. Death was caused by the combined effects of smoking and exposure to asbestos.

2. Tobacco smoke is the most common cause of cancer of the lungs. Exposure to

asbestos is the second most common cause. Further, given his history of smoking,

the deceased’s relative risk of developing adenocarcinoma of the lung was tenfold

that of a non-smoker.


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3. Tobacco smoke and asbestos exposure work in a synergistic manner in the

causation of lung cancer and the precise cellular mechanisms of this synergy are

not fully understood.

4. By reason of this synergy the deceased’s risk of the development of lung cancer as

a smoker exposed to asbestos was greater than a simple additive effect. Rather,

the approach should be multiplicative.

However, the main area of dispute between the experts was in relation to the relative contribution to risk

made by smoking and exposure to asbestos. The defendant’s expert used epidemiological evidence to

contend that the claimant’s smoking was the overwhelmingly more significant contributor to the risk of

him developing lung cancer. Indeed, even after discounting the first 25 years of smoking – which occurred

at time when the claimant could not have been regarded as knowing the dangers (because of the level of

scientific knowledge at the time) – smoking caused 90% of the claimant’s cancer risk. The remaining 10%

risk was attributable to the exposure to asbestos. The defendant contended that a commensurately large

deduction to the damages ought to have been made for contributory negligence, namely a deduction of

85% or 90%.

The court rejected that argument on two principal grounds. Firstly, it criticised the basis of the defendant’s

figures. The judge accepted criticism directed at the defendant’s expert that his figures were unreasonably

precise. Secondly, and more importantly, the defendant’s argument was rejected on the basis of a review

of the law of contributory negligence.

The judge found that the negligent smoking (after the first 25 years) was between two and three times

more potent a cause of the claimant’s cancer than his exposure to asbestos. As to the law on contributory

negligence, the judge emphasised that assessment of contributory negligence is a jury question, rather

than one which relies on identifying the precise degree of contribution to an injury. The exercise

comprised two components; first, considering the level of causative potency of the claimant’s actions,

and, secondly, considering the overall relative blameworthiness between the claimant and the defendant.

In this regard, the judge noted that when blameworthiness is considered it would usually be wrong

axiomatically to give equal weight to a breach of statutory duty on the one hand and a claimant’s own

failures on the other. The judge observed, echoing MacKay J, in Shortell :

‘… that the defendant should bear the lion’s share of responsibility in a case of prolonged breaches of

statutory duty such as this is a proposition which does not give me pause’.

Bearing this in mind, the court emphasised the policy considerations behind imposing statutory duties on

and employers and noted that they had been repeatedly breached by the defendant. Relatively, the

claimant’s actions were morally less blameworthy. This he said was due to the impact of the early

‘innocent’ years of smoking, which, had increased the risk of lung cancer significantly. The judge found

that the years of innocent smoking presented a continuing risk which should properly reduce the risk

factor attributable to the subsequent 35 years of ‘guilty’ smoking.

The judge expressed his conclusion on contributory negligence as follows:


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‘Here the claimant was a smoker long before he commenced employment with the defendant and long

before it was known to be a hazard to health. He does not have an extensive history of having been advised

to stop, tried to give up smoking twice and eventually cut down. Although the risk from smoking was

probably between double and treble the risk of asbestos, having considered all relevant features I assess

the degree of contributory negligence on the facts of this case at 30%’.

Against those findings, the court ruled there would be a 30% deduction from the claimant’s damages on

account of his contributory negligence in smoking after the risks were well known. This is somewhat higher

than the deduction in earlier cases. For example, in Badger v Ministry of Defence [2005] EWHC 2941 (QB)

the deduction was 25%, while in Shortell v Bical (QBD, 16 May 2008) the deduction was 20%.

THE APPEAL

The defendant appealed this order on the following grounds:

‘The conclusion when considering the amount of contributory negligence that the defendant should bear

the lion’s share of responsibility even where the court concludes that the evidence shows that the

claimant’s smoking was a greater contribution to the cancer than asbestos exposure is wrong in law’.

As such, the appeal was not seeking to challenge the conclusion of HHJ Cotter Q.C that the relative

contributions to the increase of risk were higher for smoking than for asbestos – instead they sought to

argue that the judge had failed to translate that risk directly into an apportionment of liability on ground

of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. The defendant felt

that this should have been reflected in a higher reduction than 30% as ‘the reduction in the claimant’s

damages of 30% is less than half of the actual contribution that the court found he had made to the relative

risk of contracting cancer through his smoking’.

So the question before the Court of Appeal was whether the defendant was justified in seeking to limit

the concept of responsibility under section 1 of the 1945 Act to considerations of causation alone,

excluding considerations of blameworthiness in the circumstances of this case.

What does responsibility mean in the context of section 1?

In order to answer this question, the Court looked back at the authorities and noted that, from an early

stage, responsibility has been a broad concept which includes consideration of both causation and

blameworthiness. The case of Davies v Swan Motor Co [1949] 2 KB 291, was relied upon to support this

statement in which Denning LJ observed:

‘Whilst causation is the decisive factor in determining whether there should be a reduced amount payable

to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of

causation. The amount of the reduction is such an amount as may be found by the court to be ‘just and

equitable’ having regard to the claimant’s ‘share in the responsibility’ for the damage. This involves a

consideration, not only of the causative potency of a particular factor, but also of its blameworthiness. The

fact of standing on the steps of the dustcart is just as potent a factor in causing damage, whether the

person standing there be a servant acting negligently in the course of his employment or a boy in play or

a youth doing it for a lark: but the degree of blameworthiness may be very different’.


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Despite this obvious inclusion of the consideration of blameworthiness, the defendant sought to

distinguish the present case on the grounds that blameworthiness should come into play in determining

responsibility arising from contributory negligence only where the fault of the claimant falls within the

scope of the very act which the employer or tortfeasors is expected to guard against.

Lord Justice Lloyd Jones, rejected this argument and held at para 25:

‘However, I can see no reason in principle for drawing a general distinction between a claimant who

contributes to his injury by conduct related to his work and one who contributes to his injury by conduct

unrelated to his work. The concept of responsibility under section 1, incorporating tests of causative effect

and blameworthiness, is broad enough and flexible enough to cover both situations and to give effect to

the competing considerations in any given situation. While it may well be appropriate in a given case to

accord less weight to contributory negligence arising in the context of the tortfeasors’ duty e.g. a failure

to wear a protective mask, I do not consider that it is possible to construct a general principle that in all

cases greater weight should be attributed to negligent conduct outside the scope of the

employer/employee relationship. Whether it is appropriate to do so will depend on the facts of each case’.

Causation

The main thrust of the defendant’s submissions came in relation to the comparison between the

apportionment of liability under the 1945 Act and the extent of recoverability under the principle

established in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 and developed in Barker v Corus

Uk Ltd [2006] 2 AC 572.

Let us briefly remind ourselves of the different tests of causation and how these apply to asbestos related

lung cancer.

There are three well-recognised legal tests of causation that are adopted in personal injury claims. The

first, and traditional test, is the ‘but for’ test. Here, the courts ask whether, on the balance of probabilities,

the claimant can establish that but for the breach of duty the injury or disease would not have occurred.

The second test is the test of material contribution, which was first applied in Bonnington Castings Ltd v

Wardlaw [1956] AC 613, a case that concerned pneumoconiosis resulting from exposure to silica dust

from two concurrent sources, one of which was tortious and the other innocent. It was not possible to

determine which source had resulted in the disease on the traditional but for basis, indeed the two

sources had acted cumulatively to cause the disease. But it was clear that the tortious exposure had

materially contributed to the disease, for without it the claimant may not have developed the disease

when he did or at all. The House of Lords accepted that in cases where there are multiple sources of

exposure to the same causative agent, causation is satisfied when the tortious exposure made a material

contribution to the disease.

The third test of causation, the ‘Fairchild’ test, is more limited in scope, applied initially to claims for

mesothelioma . In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 the House of Lords accepted

a relaxation of the but for test so that causation would be satisfied where a defendant’s tortious activity

materially increased the risk of mesothelioma occurring.


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The Fairchild test was subsequently extended by Barker v Corus so that multiple defendants would not be

liable in full but only to the extent that their culpable exposure had contributed to the risk of disease – in

other words, damages could be apportioned. This was reversed (for mesothelioma claims only) by the

Compensation Act 2006 which provided that:

‘... when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for

exposing the victim to a significant quantity of asbestos dust and thus creating a “material increase in risk”

of the victim contracting the disease will be held to be jointly and severally liable for causing the disease’.

Whilst the Fairchild principle was initially applicable to only mesothelioma claims, the Court of Appeal in

Heneghan v Manchester Dry Docks Ltd and Ors [2016] EWCA Civ 86, extended this to asbestos related lung

cancer claims – although the Compensation Act 2006 has not been amended and therefore, defendants

will not be held jointly and severally liable in asbestos related lung cancer claims.

Before the Fairchild principle was extended beyond mesothelioma, the courts had difficulty determining

which test of causation to apply in lung cancer cases. This is because science does not presently permit

ready identification of the cause of cancer since its development is fundamentally random. But science

has identified certain exposures which are likely to increase the risk of certain cancers developing.

How then were the courts to approach causation in cases where the claimant had been tortiously exposed

to a substance that is known to significantly increase the risk of cancer, but where the claimant could not

show that their cancer would have occurred ‘but for’ the exposure?

In the present case, liability was admitted by the defendant on the basis of the doubling of the risk

principle which uses epidemiological data to determine causation on the balance of probabilities where

medical science does not permit determination with certainty of how the injury was caused. Epidemiology

is the science of studying populations and the incidence of diseases within populations. It establishes,

firstly, the underlying incidence of a disease in a non-exposed population and then, secondly, the

incidence of disease in an exposed population. It allows the presentation of relative risk (RR) ratios: if an

individual is as likely to develop a condition as the rest of the population then it is said the RR is 1.0. If an

individual has been exposed to substance that increases the risk of a condition by 60%, the RR is 1.6. Thus

the doubles the risk test asks if an individual is more than 100% more likely to develop a condition

compared with the underlying risk of developing the condition, or if the RR is 2.1 or more.

As we outlined above, it was accepted at first instance, based on the epidemiology that the deceased’s

smoking in Blackmore had been a greater contributor to the cancer than the defendant’s negligent

exposure.

The defendant’s main argument came in relation to these differing tests of causation. It was submitted

that it would be irregular for an employer liable under the Fairchild principle to be liable only to the extent

that his conduct contributed to the increase in risk whereas an employer liable under the doubling the

risk test in a case where there was contributory negligence would be subject to a less favourable basis of

apportionment between him and the claimant which took account not only of causation but also of

blameworthiness.


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Rejecting this argument, LJ Lloyd Jones stated at para 33:

‘… I am satisfied that Mr.Fortt’s submission is flawed because it is based on a false analogy. The Fairchild

principle applies in certain cases where a claimant cannot prove causation of damage and, exceptionally,

established liability by reference to each defendant’s contribution the increase in the risk of the damage

occurring. Barker v Corus established that liability under this principle is several as opposed to joint and

several. Accordingly, each defendant is liable only to the extent that he has caused an increase in the risk

of the damage occurring. As a result, questions of contributory negligence never arise…by contrast, liability

on the basis of doubling the risk is founded on orthodox principles of causation. It proceeds by drawing an

inference from the increase in risk of contracting the disease that the agent in question was a cause of the

disease. (Novartis Grimsby Ltd v John Cookson [2001] EWCA Civ 1261 per Janet Smith LJ at [74]; Heneghan

per Lord Dyson MR at [8].) Where liability is established in this way, a defendant who has made a material

contribution to the damage is, prima facie, liable for the full extent of the damage suffered (Bonnington

Castings Ltd v Wardlaw [1956] AC 613). It is at this point that questions of contributory negligence may

arise’.

He went on to conclude at para 35:

‘There is therefore to my mind, no inconsistency between liability under the Fairchild principle, which is

limited to the contribution made by the tortfeasor to the increase in risk of contracting the disease and

where contributory negligence does not arise, and liability under the doubling the risk principle, where the

tortfeasor has made a material contribution to the damage and is liable for the full extent of the loss

subject to contributory negligence. I can, therefore, see no good reason, when determining responsibility

under section 1 of the 1945 Act in cases such as the present, to limit consideration to matters of causation

or to deny any role to blameworthiness’.

So now it has been confirmed that blameworthiness is a factor to be taken into consideration, what is the

correct approach to contributory negligence?

Contributory Negligence

Giving judgment, Lord Justice Lloyd Jones concluded that the correct approach to the assessment of

contributory negligence was that summarised in Badger v Ministry of Defence [2005] EWHC 2941, in which

Stanley Burnton J stated:

‘… [O]nce contributory negligence has been established, the court must take into account both the extent

of the claimant’s responsibility for his injury and damage and the blameworthiness of his conduct as

opposed to that of the defendant in deciding on the reduction in damages that is just and equitable. The

decision as to the appropriate reduction in the claimant’s damages is to be dealt with in a broad, jury like

and common sense way: …’

Commenting on the case before him, LJ Jones stated at para 39:


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‘In carrying out the apportionment exercise under section 1 of the 1945 Act the judge in the present case

gave what I consider to be appropriate weight to all of the competing considerations and underlying

policies. Had his approach been limited to an assessment of relative contributions to causation, it would

necessarily have failed to differentiate between the blameworthiness of the employer in exposing

employees to asbestos and that of the employee in smoking. I agree with the judge that such an approach

would have been wrong in principle. There is a particular policy underlying Parliament’s strict prohibition

of the exposure of workers to asbestos and other harmful substances which needs to be reflected in the

apportionment of responsibility. Here the judge was right to give very considerable weight to the

blameworthiness of the employer in exposing its employee to asbestos in breach of a strict statutory duty

in circumstances where the dangers of asbestos to health were well known. By comparison, a lesser degree

of blame attaches to the conduct of Mr. Blackmore in continuing to smoke after the dangers of smoking

to health became known. Moreover, as the judge concluded, it was necessary to take account of the earlier

period of innocent smoking and the medical uncertainty attaching to the impact and synergistic effect of

that earlier period of innocent smoking. In all the circumstances, I consider that the judge’s apportionment

of contributory negligence at 30% was well within the range of options open to him’.

As such the appeal was dismissed and the 30% reduction of the claimant’s damages was upheld.

CONCLUSION

What can we learn from this judgment about the approach to contributory negligence in asbestos related

lung cancer claims?

Firstly, it is clear that the claimant’s contribution to the relative risk of disease will not be automatically

translated into a reduction in damages for contributory negligence. This is for a number of reasons:

- The epidemiology used to calculate the relative risk posed by the claimant’s activity (in this case smoking)

is not well suited to a precise percentage reduction;

- The claimant’s blameworthiness will also be taken into account which can reduce the reduction in

damages that he will face. In this regard, the judge noted that when blameworthiness is considered it

would usually be wrong axiomatically to give equal weight to a breach of statutory duty on the one hand

and a claimant’s own failures on the other.

In this respect contributory negligence does differ to the Fairchild and Barker approach seen in multiple

defendant lung cancer claims – where a defendant will be liable only for the portion of risk he is

responsible for. However, it is clear from the judgment in Blackmore that this is an acceptable deviation.

It is therefore, unlikely, based on these decisions that we will see reductions for contributory negligence

at a much higher rate than 30% in the near future.


Mesothelioma Claim Dismissed on Facts: Lugay v London Borough of Hammersmith

and Fulham [2017] EWHC 1823 (QB) (BCDN Edition 197)


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The High Court in the case of Lugay v London Borough Of Hammersmith and Fulham [2017] EWHC 1823

(QB) have rejected a claim for damages brought by a widow who argued that her husband had developed

mesothelioma as a result of exposure to asbestos during his tenancy of a council owned property.

The deceased in this case died aged 73 of a heart attack, although it was agreed, based on the medical

evidence, that his death was accelerated by four years by reason of his mesothelioma. The claim was

brought by the claimant, the deceased’s widow, who sought damages totalling £138,729 from the

defendant council. The claimant argued that the deceased’s exposure to asbestos during his tenancy of a

flat owned by the council had caused his mesothelioma and, as such, the council were in breach of the

Landlord and Tenant Act 1985, Defective Premises Act 1972 and Occupier’s Liability Act 1957. The

defendant denied any breach of duty or any causative exposure through the deceased’s occupancy of the

flat.

The deceased was born in the Dominican Republic and worked in the building industry as a carpenter,

before moving to the UK when he was 19. In the UK, he worked as a bus conductor for London Transport

for 35 years and until his death, he worked as a cleaning supervisor for Lambeth Council. The deceased

had lived in the flat from 1972 and in 2003, his wife moved into the flat with him. In 2011, he was

diagnosed with mesothelioma and he died in June 2012.

As to the cause of the deceased’s mesothelioma, the judge noted that a history of occupational or other

exposure to asbestos dust is present in nearly 90% of cases in the UK. In people without known exposure

to asbestos, mesothelioma is rare accounting for about one in ten thousand deaths. However,

unfortunately, the deceased had passed away before proceedings were started and without providing a

witness statement, so little information was available about the source of his exposure to asbestos.

So the question posed was: ‘… whether the limited factual evidence available and the expert evidence

enable the court to be satisfied on the balance of probabilities as to the source of asbestos exposure in this

case’.

Exposure

The flat that the deceased had lived in was constructed in the 1960s with the use of asbestos containing

materials (ACM), including chrysotile asbestos containing floor tiles, amosite asbestos insulation panels in

the meter cupboard, amosite asbestos-containing toilet cistern and chrysotile asbestos containing

textured decorative coatings to the ceilings.

In the communal parts of the block, there were asbestos insulation boards, linings within the lift and stair

lobbies, asbestos debris within the stair risers, asbestos paint on the walls and asbestos floor tiles.

The claimant argued that the deceased was exposed to asbestos fibres in the flat through:

- Redecorating the flat once a year, including stripping walls and ceilings and sanding them down.

- In 1987/1988 the installation of central heating had disturbed asbestos which was cut, drilled and

removed which left the flat very dusty.


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- Flushing the toilet entailed brushing up against the asbestos side of the cistern which gradually

deteriorated.

- Asbestos used in communal areas of the block of flats disintegrated, releasing asbestos into the

atmosphere.

- Wearing and disintegration of asbestos floor tiles.

In relation to the last three grounds put forward for exposure, i.e. the presence of asbestos within the

building, the experts agreed that this would not have increased exposure above background levels of up

to 0.0005 f/ml. They also agreed that walking on the floor tiles, brushing against the toilet cistern and

carrying out general housework and reading the meter in the meter cupboard, probably would not have

increased exposure above background levels.

With regards to the communal areas, it was agreed that, although asbestos was used in the insulation

boards, it would be embedded in the panels and not located on the surface and despite disrepair, the

asbestos in the panels would not be released.

Turning to the installation of the central heating system in 1987/88, the experts agreed that this was a

factual issue for the court to resolve as if it was found that these works involved disturbance of ACMs

without precautions and the deceased was present at the time then he was probably exposed at some

level.

Evidence on this matter was given by the deceased’s daughter and the witness for the Council who

claimed that the defendant would not have disturbed the tiles in carrying out these works. He stated:

‘We would not have removed the tiles to gain access to the old hearing system, this would be an incredibly

big job and an expensive one and there is a far cheaper and easier solution. What we would do is that we

would have left the old heating in place, presumably it would be encased within the concrete flooring and

we would cap off the old supply. We would cap off the original supply at floor level, leaving the old piping

where it was and we would connect a brand new system at surface level … If the new heating system is at

floor level, i.e. surface level, it makes it far easier for us to access for maintenance and resurfacing …’

This evidence was accepted and Mrs Justice O’Farrell concluded on this issue:

‘Based on the evidence before the court, the claimant has failed to prove that the installation of the central

heating system involved any disturbance to asbestos-containing materials that could have been a potential

source of asbestos exposure to Mr Lugay’.

This left only the decoration works carried out by the deceased.

The claimant described the work in her witness statement as:

‘…removing the wallpaper with a scraper to expose the plaster and then sanding this down using

sandpaper to remove the mildew and mould. He would also do likewise in relation to the corners of the

ceilings ... this would involve one day undertaking preparatory work including cleaning of the mould form

the surfaces particularly in the cornices of the ceiling. To do this he would wipe this down with a cloth and


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then use sandpaper to remove the remaining residue of mould/mildew. Having removed the wallpaper he

again used sandpaper to remove the mildew/mould and to prepare a clean surface so that he was able to

repaper the walls ...’

The experts disagreed on the level of exposure that may have been experienced by the deceased when

he sanded down the edges of the ceiling.

The claimant’s expert claimed that the textured decorative coating of the ceiling would have contained

between 1-5% chrysotile. These fibres would not be released until disturbed but if the deceased sanded

the coating, fibres would have been released and he estimated that the deceased would have been

exposed to between 4-400 times the accepted background level, although in short and intermittent

periods.

This was based on the assumption that the deceased sanded down the edges of the ceiling over a period

of 6 hours on each occasion.

The defendant’s expert disagreed and said that this activity would not have exposed the deceased to

above background levels, as the walls were probably majority plaster and contact with the edges of the

asbestos containing ceiling would have been minimal.

The judge, on this issue, accepted the evidence of the claimant that the deceased did indeed redecorate

the flat in order to address the mould. However, photos of the ceiling, which were admitted into evidence

and taken relatively recently, showed that the textured surface of the celling was intact. As such the judge

concluded:

‘If, as claimed by the claimant, Mr Lugay had sanded down the edges of the ceilings each year, for 40 years,

the textured coating would be missing, at least in areas. However, the photographs show the textured

coating intact up to the corners where the ceilings meet the walls. I find that Mr Lugay stripped the

wallpaper and sanded the walls, in preparation to receive fresh wallpaper. He cleaned the mould from the

tops of the walls and the edges of the ceiling with a cloth. He used sandpaper to remove remaining traces

of mould but did not rupture, fragment or remove any part of the textured coating on the ceiling. Any

contact with or disturbance of the asbestos within the textured coating would have been intermittent

and de minimis.’

Breach of Duty?

Due to the experts agreeing that the presence of ACMs does not of itself give rise to any risk of exposure

above background levels, breach of statutory duty based on any defect in the property was dismissed.

As such the claimant had to establish her claim based on a breach of common law duty of care.

It was agreed that the defendant, as landlord, owed a duty of care to the deceased not to expose him to

a foreseeable risk of asbestos related injury.


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The court phrased the test of whether the defendant had breached their duty of care as follows:

‘The court must compare the steps taken by the defendant to prevent the victim from being exposed to

asbestos fibres with an objective standard of what reasonable steps should have been taken to avoid

reasonably foreseeable injury in the factual circumstances prevailing at the time’.

The court held that the factors to take into account in determining the issue of foreseeability in cases such

as these were set out by Aikens LJ in Williams v University of Birmingham, at paragraph [44]:

‘i) the actual level of exposure to asbestos fibres to which the deceased was exposed;

ii) what knowledge the defendant ought to have had at the time about the risks posed

by that degree of exposure to asbestos fibres;

iii) whether, with that knowledge, it was (or should have been) reasonably foreseeable to the defendant

that, with that level of exposure, the deceased was likely to be exposed to asbestos related injury;

iv) the reasonable steps that the defendant should have taken in the light of the deceased's exposure to

that level of asbestos fibres; and

v) whether the defendant negligently failed to take the necessary reasonable steps’.

Reviewing the publicly available information which would have been available to the defendant at the

time, it was concluded that from the mid-1980s, if not before, the defendant should have been aware

that:

there were asbestos-containing materials in the flats;

if asbestos-containing materials in the flats were disturbed, tenants occupying the flats would be

subjected to risks associated with exposure to asbestos fibres; and

there was no safe level of exposure to asbestos fibres.

However, the issue in this case was whether the defendant should reasonably have foreseen that tenants

carrying out maintenance or decoration in their flats might disturb asbestos-containing materials, giving

rise to a risk of exposure to asbestos fibres, such that the defendant should have taken steps to reduce

the risk by removing all asbestos, prohibiting works in the flats, or issuing warnings about the presence of

asbestos.

The following dicta of Lady Hale LJ in Shell Tankers (UK) Ltd v Jeromson [2001] EWCA Civ 100, was referred

to in which she said:

‘The issue in this case is not one of balancing the effectiveness, expense and inconvenience of the

precautions required against the extent of the risk: the issue is whether the risk should have been

identified’.

Hale LJ, at paragraph 37, rejected the submission that in assessing risk it was adequate for an employer

simply to consider the average exposure, rather than the potential exposure:

‘… where an employer cannot know the extent of any particular employee's exposure over the period of

his employment, knows or ought to know that exposure is variable, and knows or ought to know the


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potential maximum as well as the potential minimum, a reasonable and prudent employer, taking positive

thought for the safety of his workers, would have to take thought for the risks involved in the potential

maximum exposure. Only if he could be reassured that none of these employees would be sufficiently

exposed to be at risk could he safely ignore it’.

O’Farrell J concluded that there was no duty to remove all asbestos from the flats, as the experts had

agreed that the mere presence of asbestos does not, of itself, present a material risk of exposure to

asbestos fibres.

There was also found to be no such duty in respect of the cleaning and decorating activities carried out by

the deceased, as those activities did not involve abrasive techniques that breached the textured coating

on the ceilings. On the facts of the case, it was found that the deceased was not exposed to asbestos fibres

during his cleaning and decoration of the flat and, as the disturbance to the edges of the ceiling would

have been de minimis, the judge held that the defendant was not in breach of its duty of care.

As a result, for the same reasons, causation could not be proved and the claim was dismissed.


Asbestos Victims Support Group Forum Success With Disclosure Application (BCDN

Edition 198)

The Asbestos Victims Support Group Forum have this month been successful in preventing documents

relating to Cape Group’s knowledge of the risks of asbestos and mesothelioma from being destroyed. The

application for disclosure of these documents will be heard in October 2017.

The documents relate to the underlying litigation for which there were two sets of claims, tried together.

These have become widely known as the Product Liability (PL) claims and the CDL claims, so called because

they were claims brought by Aviva on behalf of its insured customer Cape Distribution Limited.

In the PL claims a consortium of insurers brought subrogated claims seeking contributions from Cape

Intermediate Holdings PLC arising from insurance policies which the PL claimants had written regarding

employee liability insurance for various clients, mainly building companies. The insured employers were

sued or received notices of claims from former employees in respect of mesothelioma contracted by them

due to occupational asbestos exposure. The claims were settled by the insurers and that gave rise to the

subrogated PL claims by which the insurers sought contributions from the Defendants. The basis for the

PL claims was that the claimants alleged that the employees in question had been exposed to dust from

‘Asbestolux’ and ‘Marinite’ boards manufactured and supplied by members of the Cape group of

companies, and that Cape and/or its subsidiaries had failed adequately to warn of the risks of occupational

asbestos exposure at the time.

We reported in edition 177 of BC Disease News that Cape had entered into settlement agreement with

the insurers before judgment could be handed down. This can be accessed here.

http://www.bailii.org/ew/cases/EWHC/QB/2017/1823.html

https://www.bc-legal.co.uk/images/pdf/177-BC-Disease-News-2017-03-17-Edition-177.pdf


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It was the documents that were disclosed between the parties in the lead up to this trial that The Forum

wish to have access to. The documents include, inter-company indemnities, insurance arrangements,

marketing materials relating to the products in question, historic technical information about the

materials and codes of practice. This principally concerned the period from 1948 to 1982.

These documents are of interest to lawyers and members of the public interested in asbestos safety and

asbestos-related disease and, it is argued by The Forum, illuminate what Cape really knew about the risks

of asbestos and mesothelioma. Indeed, Counsel for one of the insurers is reported to have said that the

documents were ‘the single most important weapon against TDN13’. 94

The applicant was successful in preventing these documents from being destroyed and removed from the

Court in an urgent ex parte application in April 2017 and Master McCloud, at that time, made an order for

the application to come before the court by way of a hearing, for further consideration.

At this hearing, earlier this month, the matter of The Forum having access to these documents was

discussed. As interested parties Cape was given notice of this application and informed the court they

wished to make submissions against the application of The Forum. Master McCloud agreed that they

should be allowed to address the court.

As such the substantive hearing was listed for October 2017.

Master McCloud made no order as to costs as the application was made in the public interest.

The full judgment can be accessed here. We will continue to report on any developments in future editions

of BC Disease News.

94 Leigh Day, ‘Significant Judgment For Asbestos Victims Support Group Forum’ (Leigh Day 11 August 2017) <https://www.leighday.co.uk/News/News-2017/August-2017/Significant-judgment-for-Asbestos-Victims-Support> accessed 17 August 2017.

https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/Asbestos/Dring-v-Cape-Ors_QBD_-2017-EWHC-2103_10-8-17.pdf

https://www.leighday.co.uk/News/News-2017/August-2017/Significant-judgment-for-Asbestos-Victims-Support


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ii Professional Negligence Bar Association, Facts & Figures: Tables for the Calculation of Damages, 2015/16, Sweet

& Maxwell iii Health and Safety Executive, ‘Mesothelioma: Statistics’

http://www.hse.gov.uk/Statistics/causdis/mesothelioma/index.htm> accessed 26 February 2016. iv Institute of Actuaries Asbestos Working Party, ‘Update from the UK Asbestos Working Party (GIRO 2015) –

Notes Pages’ https://www.actuaries.org.uk/practice-areas/general-insurance/research-working-parties/uk-asbestos

accessed 26 February 2016. v Health and Safety Executive, ‘Mesothelioma: Statistics’

http://www.hse.gov.uk/Statistics/causdis/mesothelioma/index.htm> accessed 26 February 2016.

Disclaimer

This newsletter does not present a complete or comprehensive

statement of the law, nor does it constitute legal advice. It is

intended only to provide an update on issues that may be of

interest to those handling occupational disease claims. Specialist

legal advice should always be sought in any particular case.

© BC Legal 2016.

BC Legal is a trading name of BC Legal Limited which is registered in

England and Wales under company number 08963320. We are

Authorised and Regulated by the Solicitors Regulations Authority (SRA

No 617698) The registered office is 1 Nelson Mews, Southend-on-

Sea, SS1 1AL. The directors are Boris Cetnik and Charlotte Owen.

More details on the firm can be found at www.bc-legal.co.uk.

http://www.hse.gov.uk/Statistics/causdis/mesothelioma/index.htm

https://www.actuaries.org.uk/practice-areas/general-insurance/research-working-parties/uk-asbestos

http://www.hse.gov.uk/Statistics/causdis/mesothelioma/index.htm

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Documents

Asbestos Claims - BC Legal · with the same features as severe plaques, then he called it diffuse pleural thickening, provided it was more than 5 cm wide. Identical shadowing, but