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Written on 5th May 2020 by Laura Magson

Laura Magson acted for Royston who was a former lagger’s mate for insulation companies in the 1960s. Laura took on his case in June 2019 following his diagnosis with Mesothelioma by a respiratory physician in Australia. Whilst Royston was exposed to asbestos as a lagger’s mate in the UK in the 1960s, he relocated to New South Wales. ​Royston began chemotherapy treatment soon after his diagnosis and his treating oncologist believed that he would be a good candidate for immunotherapy in the event that there was any tumour growth so it was really important to Royston to gain an award of compensation for his illness, but also to ensure that funds would be available to meet any immunotherapy treatment which must be paid for privately in Australia.

Claim issued due to former query over Asbestosis/pleural thickening

Mesothelioma claims are normally issued at the High Court very promptly after instruction. The reason for this is that there is are specialist Judges that deal with Mesothelioma expeditiously.

Mesothelioma patients often have a limited life expectancy and in order to obtain justice for sufferers and their families as soon as possible, we issue proceedings as promptly so that a quick timetable can be set out by the Court. This ensures the claim is resolved as quickly as possible.

In Royston’s case, the claim needed to be issued even sooner. This was because Royston approached Boyes Turner in 2015 following a diagnosis from another physician in New South Wales who believed that Royston was suffering from pleural thickening which he thought was asbestos related.

In 2015, we set about gaining an opinion from a radiologist who is used to preparing medical reports for the Court who disagreed with the Australian doctor and thought that although there was pleural thickening present on the chest x-rays and CT scans, this was not connected to asbestos exposure. ​Royston’s medical history was complex and further compounded by a coronary artery by-pass he underwent. Royston had a procedure in 2015 for a pneumothorax (collapsed lung). The radiologist thought that in order to carry out the procedure, the surgeons would have deliberately inflated Royston’s pleura so that the two pleural surfaces could adhere together more easily and lessen the pneumothorax. He believed therefore that the pleural thickening shown on the x-rays at the time was caused by the surgery rather than the asbestos exposure. The legal claim was not pursued at the time. 

More recently, the respiratory physician that was instructed in relation to the Mesothelioma claim went further to say that he did not agree with the Australian doctors or the radiologist in the UK and that the pleural changes back in 2015/2016 could have been early changes of Mesothelioma rather than post-talc reaction, although it would have been impossible for the medical professionals to know this at the time.

Government Awards

Royston applied for DWP benefits in 2015 for presumed pleural thickening and was made a payment under the Pneumoconiosis Workers Compensation Act in March 2016 based on the information known to the clinicians and Royston at the time, which was a reasonable approach Interestingly, the award from the DWP was over £11,500 in 2015 as the DWP made a combined award finding that Royston was suffering not just from pleural thickening, but also Asbestosis (which never appeared on any of the radiology reports). In retrospect, the treating physician in the Mesothelioma claim was of the view (in his March 2020 report) that with the additional knowledge of imaging and biopsies over subsequent year Royston never had compensatable asbestos related pleural thickening or asbestosis.

Further PWCA Award

When Royston was diagnosed with Mesothelioma, Laura of course assisted him with a further application to the DWP for a lump sum on account of his Mesothelioma. He was awarded £14,000 in August 2019.

The claim needed to be issued as soon as possible because if the medical experts later agreed that Royston was suffering from Mesothelioma as far back as 2015 or 2016, then he would be out of time for issuing a claim in the Court. This is because a claimant has three years from the date that he knew or should have known that he was suffering from an asbestos related disease to issue a claim in the Court.

Laura issued the claim in July 2019 before the medical reports were available to protect Royston’s position. Royston of course had a suspicion that he had an asbestos related disease because he made initial enquiries in 2015 for asbestos related pleural thickening and indeed was made an award by the DWP for asbestosis and pleural thickening which arguably would of course fix him with the requisite “knowledge” for an asbestos related disease.

Understandably, Royston did not pursue legal matters any further in 2016 once the expert radiologist opinion was that the pleural thickening was not asbestos related, but at the outset there was certainly a risk that he was “out of time” either way. The first risk was that it was Mesothelioma all along and that the time limit for issuing a claim for Mesothelioma had already passed. The second risk was that the Mesothelioma was a new condition in 2019 but that Royston did indeed suffer from either asbestos related pleural thickening or Asbestosis back in 2015 which again would fix him arguably with “knowledge”. The Court does have a discretion to disapply that three year time limit and we set out our arguments to persuade the Court to allow the claim to proceed, if necessary in the Court documents.

Admission of Liability

The claim was further complicated because the company that was being pursued was in liquidation. Laura issued the claim at the Royal Courts of Justice in London to protect ​Royston’s position, but retrospective permission was needed to proceed against the defendant in question because of its liquidation status. This involved attendance at a hearing at the Liverpool District Registry (the Court where initial papers relating to the Winding Up Order was dealt with) and Royston’s legal team persuaded the Liverpool Court to proceed against the defendant in question. 

The defendants admitted liability soon after papers were served and an interim payment of £50,000 was due to be paid to Royston just before Christmas 2019. The Court laid down directions with which both parties needed to comply. This included Royston being allowed permission to rely upon a nursing care report. Laura arranged for a UK nursing care expert to prepare a report to address Royston’s current and future care needs. She did this via video link so that she could assess Royston’s accommodation and its suitability for any future equipment that may be necessary.

Final Court Hearing

The Court hearing was due to be heard in early May 2020, less than a year after Laura was instructed. The hearing was intended to simply decide the amount of money that Royston ought to be awarded.

The hearing was set to go ahead by way of video link because Royston and his wife of course resided in Australia, but also the legal teams representing Royston and the defendant company were both in social isolation at the time of the Covid-19 pandemic, as were the Judges.

Normally negotiations ensue quite swiftly where there has been an admission of liability and where an interim payment has been made. However, Royston’s case was quite complicated in relation to “quantum” (ie the financial worth) not least because of the complicating factor of whether the pleural changes that he experienced in 2015 were indeed early changes of Mesothelioma, asbestos related pleural thickening or the result of the procedure that he underwent at the time that was not connected to asbestos exposure. This would have an impact on the past care claim, but also the amount awarded for pain and suffering (if he was symptomatic in 2015/2016). This was further compounded by the fact that Royston had had an award of £11,500 in 2016 for asbestos related conditions from the Government. The rule is that any payments that are received from the Government are treated as part payment on account of compensation. It is the defendant’s responsibility to repay those benefits or lump sums back to the DWP and claimants need to give credit for these amounts when they receive their damages payments. In real terms this meant that ​Royston’s compensation would be reduced not just by the Mesothelioma payment of £14,000 but also the award of £11,500 back in 2015, which would have impacted his net damages fairly significantly. However, the claimant was not arguing for Asbestosis or pleural thickening back in 2015 given that the expert in relation to the Mesothelioma claim believed that with hindsight, the pleural changes in 2015/2016 were not connected to benign asbestos disease. The difficulty arose as with the benefit of hindsight, the payment of £11,500 had been incorrectly awarded although of course the application was made in good faith at the time.

The defendant made an offer of £175,000 gross including an indemnity to fund Royston’s Mesothelioma related treatment in Australia a few weeks before the hearing date. The indemnity was particularly important because treatments such as immunotherapy are not available and can only be paid for privately in Australia (indeed this is the case in the UK as well). £175,000 was an appropriate amount, but the sticking point was the DWP benefits. Laura tried to argue that Royston should not have to give credit for the £11,500 payment as there was new evidence he had not been suffering from asbestosis or pleural thickening at that time but the defendants were digging their heels in as they would have to repay this amount (and the £14,000 to the DWP in the event of a successful claim as both amounts appeared on the relevant DWP certificate. Laura quickly made an appeal to the Compensation Recovery Unit. She explained the complex medical history, the enquiries that were made with various medical experts over the last four years which resulted in the DWP allowing the appeal. They agreed to remove the £11,500 award from 2016 from Royston’s Certificate of Recoverable Benefits. This meant that neither Royston nor the defendant needed to repay the amount to the DWP. The only amount to be deducted from the compensation was the Mesothelioma payment of £14,000 which is deducted in the normal course of events. 

"We had excellent all round service with Laura Magson and would be happy to recommend her to anyone!"