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Written on 10th June 2020 by

Laura acted for Martin who contacted her in January 2019 following a Consultant appointment when he was told that he was suffering from mesothelioma that was connected to asbestos exposure.

Martin had previously been diagnosed with “mesothelioma” in 2014. He had been fit and well until 2013 when he started experiencing abdominal pain. He had though experienced some discomfort since his appendix was removed in 2011 so he assumed that the pain in 2013 was a consequence of the surgery, but eventually sought medical help.

He was referred by his doctor for further investigations. He had diagnostic surgery and then major surgery to resect a tumour which was discovered in September 2014. Initially, he made a good recovery from the surgery, but on the sixth day after the operation he developed chest sepsis. The medical team also treated him for a wound abscess. His condition slowly improved with antibiotic treatment. 

There was a multi-disciplinary team meeting at the hospital who reported in September 2014 following biopsy that Martin was suffering from “well-differentiated papillary mesothelioma”. His treating Consultant believed that he had a good outcome and there was no evidence that chemotherapy would be beneficial. He would be followed up with a CT scan in 12 months time. 

Although Martin was asked whether he was exposed to asbestos during 2014 by the treating doctors and he confirmed that he had, the condition that he was told that he was suffering from, well-differentiated papillary mesothelioma is not associated with previous asbestos exposure so he felt reasonably reassured.

Martin went back to work as a self-employed mechanic he had fully recovered from his surgery and was exercising and living his life to the full. His CT scan one year later showed no disease recurrence, although he needed a hernia repair. During the surgery, two small nodules were seen and histology was taken. The test results, in fact, showed that the features of the tumour were consistent with an epithelioid peritoneal (of the abdomen) mesothelioma rather than a well-differentiated papillary mesothelioma. Epithelioid mesothelioma of the peritoneum is associated with asbestos exposure. However, the results from the pathology were not communicated to Martin and he continued to attend the hospital on a yearly basis for regular CT scans. In August 2017, his doctor noticed that there were a couple of small spots inside his abdomen, and simply that they needed to keep an eye on them.

In March 2018, the CT scan showed that he was “essentially stable” and so he did not worry unnecessarily.

However, matters changed in January 2019 as he was starting to experience nausea. Although the CT scans showed no significant change, the doctor informed him that the pathology from 2016 actually showed that the mesothelioma was epithelioid rather than papillary and Martin contacted Laura to see if anything could be done to gain compensation now that the mesothelioma appeared to be possibly asbestos related. Martin was upset because he was told in January 2019 that the cancer was associated with a much poorer prognosis and outcome than the mesothelioma they thought he was suffering from.

Asbestos Exposure 

Martin had been a mechanic since he was 16 years old and had had significant asbestos exposure from the mid-1970s to the early 1990s working in Tooting as an apprentice mechanic and then fully qualified auto electrician. He eventually became a works chargehand. A regular part of his job involved replacing brake shoes and clutch plates which had asbestos in their composition. He jacked the vehicles up on axel stands, removed the wheels and brake drums. He used a compressed airline to blow dust from the drums which created clouds of dust. He also used production paper to remove dust from brake shoes. He fitted new brake shoes and filed the edges with a grinding machine or hand coarse file.

The company that Martin worked for was dissolved, but Laura traced the employers’ liability insurers and notified the claim to them. She also set about urgently restoring the company to the Register. It was clear that Court proceedings would need to be issued as soon as possible because of a potential limitation problem. 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. From the records that Martin had, it seemed that the biopsy from May 2016 showed asbestos related mesothelioma and so Laura had just a few weeks to get the documents in order so that proceedings could be issued. The Court does have the discretion to override the time limit requirement, but delays do cause significant difficulties.

Pathology Reports 

When the lengthy hospital records were received in full, it was clear that Martin had a complex medical history. Laura obtained a pathology report from an expert histopathologist that is used to doing medico-legal reports for the Court. In addition to the biopsy in May 2016, two were taken in 2014, one in January and one in September. Surprisingly, the pathologist found that the September 2014 showed a malignant mesothelioma of epithelioid (asbestos) type although there was a papillary component to the tumour. This was a surprise because that had been reported as a well-differentiated papillary mesothelioma rather than an epithelioid one. Court proceedings were issued straightaway, but there was a risk that the Court might find that Martin’s date of knowledge was in fact September 2014 (rather than May 2016 or January 2019). Although it would seem unfair to fix Martin with “knowledge” as early as September 2014 given that a diagnosis of asbestos related mesothelioma was not specifically given to him, he had in fact completed an Application for benefits because a friend had told him that the word “mesothelioma” was always asbestos related.

Claim defended on all fronts

The relevant documents were served on the defendants and an offer was made to settle his claim in July 2019. It was clear that Martin’s illness was following quite an unusual course. By the time the case was issued, he had had symptoms of mesothelioma for six years. He was doing well and still working five days a week (instead of six) in mid-2019. It was really important to Martin that the case settled quickly, but also that the insurers for the defendants agreed to fund any treatment for his mesothelioma in the future that may not be available on the NHS (such as immunotherapy). 

The defendants though defended the claim on all fronts. They denied that the garage had breached their duty of care towards him (despite the fact that he was 16 years old when he first started and it is strict liability for under 18s where they come into contact with asbestos), they denied that the mesothelioma was asbestos related and they also raised limitation. 

The case proceeded towards an interim hearing at the High Court. Laura obtained two supportive Witness Statements from his former colleagues that supported significant asbestos exposure was sustained. The defendants disclosed no evidence to support their claim until the day before the hearing when they served an engineering report intended to summarise the likely dose of asbestos exposure Martin would have received, concluding that further information was needed from him to quantify the amount. The Court allowed a process called “evidence on commission” which is where a mini hearing takes place and is an opportunity for the defendants to cross-examine a claimant on his witness evidence in case there is a risk that he may pass away before conclusion of the claim. Evidence on commission hearings are not very common, but Martin was able to answer all questions clearly and convincingly and his word for word evidence was provided to our own engineer who produced a supportive report. A second hearing took place three weeks after the evidence on commission hearing and the defendants conceded breach of duty in advance of that hearing most likely due to the evidence he gave during the hearing and due to the supportive engineering report that was obtained by us.

Causation 

The most difficult aspect of the case was a medical one. The respiratory physician that we instructed believed that on the balance of probabilities, the mesothelioma was epithelioid (asbestos related), albeit that the disease had followed a rather unusual course, but on the basis of the pathology report that we have obtained, the most likely explanation was an asbestos related mesothelioma. The defendants had no permission from the court to obtain their own report from a respiratory physician, but they went ahead and obtained one anyway. Unsurprisingly, their report was supportive for the defendant’s case and their expert said a radiologist’s opinion was needed. At the second hearing, the Judge allowed the defendant’s permission to obtain their own radiology opinion as well as a second pathology report.

The radiology report did not get us any further because both radiologists essentially agreed that it is impossible to tell from radiology of what type the mesothelioma is. It all hinged on the defendant’s pathology report and the report was received in March 2020. The defendant’s pathologist agreed with our pathologist that on the balance of probabilities Martin did have an epithelioid mesothelioma. 

Offers

In the light of the evidence, Laura made a second offer of £255,000 gross, net of any future treatment to the defendants in April 2020. The case was listed for a final hearing called an assessment of damages in mid-May 2020. The hearing was for the Judge to decide the amount of money the case was worth. The hearing was due to go ahead. Martin was of course self-isolating during the COVID-19 pandemic because of his condition. It was clear that he, the legal teams and experts were not going to be able to attend Court, but Laura arranged for the hearing to go ahead via video link. The defendants made a time limited offer seven days before the hearing which was £500 less than our offer and did not provide for future treatment. Martin rejected this offer on Laura’s advice. Two days before the hearing was due to go ahead, the defendants accepted our offer and provided an undertaking to fund any future non NHS funded treatment. 

Martin was pleased that the case was settled without the need to attend the virtual hearing. Although the case was concluded within 16 months after first instruction, it was a long and drawn out claim which was attacked on all fronts by the defendants.

Laura says:

"Whilst I’m pleased that Martin’s case concluded successfully within 16 months of first instruction, it was a long drawn out claim which was heavily defended by the defendants. There were no less than 12 expert reports obtained in this case and no offers at all from the defendants until just days before the hearing. I have no doubt that the evidence on commission hearing caused Martin and his wife anxiety and stress, but he gave clear, concise and convincing evidence under pressure which resulted in the defendants conceding breach of duty soon after. I’m delighted that Martin and his family can now turn their attention away from the legal claim and enjoy the time that they have together. Martin can be reassured that the defendants will fund any future treatment that he needs that is not available on the NHS."

Martin says: 

"I would like to take this opportunity to say a big thank you to you and your team for all your hard work, passion, dedication and professionalism which resulted in my successful claim.

It has been a long battle but we got there in the end. Whatever happens in the future I now have the financial security that I deserve for myself and my family. I can now focus on my health and happiness."