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Boyes Turner’s mesothelioma and asbestos claims team have secured a £55,000 provisional damages settlement for a former lagger with asbestos-related lung cancer (squamous cell carcinoma of the lung) even though he smoked 5 cigarettes per day.

John was exposed to asbestos whilst working as a lagger between 1958 and 1963/64. He worked in a gang of six men and for two days each week his job involved tipping asbestos powder into a large bucket and mixing it with water to make a paste. As buildings were being constructed, he and the gang worked throughout the premises mixing and applying asbestos paste to the pipework. The rest of the gang were mixing asbestos powder at the same time so the air was thick with asbestos dust. He was not provided with any mask.

He also undertook demolition work for the company when they were refitting commercial buildings. He demolished internal walls and pulled out internal features, including asbestos lagging, asbestos insulation boards and asbestos lagged pipework. 

Respiratory symptoms

John began to feel slightly breathless in 2003. He was referred for a CT scan owing to his previous history of asbestos exposure. He was found to be suffering from benign pleural plaques but these were not thought to be the cause of his breathlessness which was attributed to COPD related to smoking. 

He took legal advice in 2005 but was told that he could not pursue a claim for pleural plaques as pleural plaques are no longer compensable in English and Welsh law.

In 2016 he became particularly breathless with a productive cough and was referred to hospital. He was diagnosed with a tumour in the right lung, as well as pleural thickening. He underwent a right lower lobectomy.

The disputed claim

John instructed Boyes Turner’s asbestos disease team to investigate a claim against his former employer. We obtained a medical report from a respiratory consultant physician who concluded that John has 50% respiratory disability of which 30% is due to COPD (from smoking) and 15% due to the lobectomy. 

There is a debate between experts in the medical literature as to whether the risk of asbestos -related lung cancer is confined only to those who have developed asbestosis. The balance of opinion has changed in recent years towards the view that the risk is not confined purely to people who have developed asbestosis, but if we can prove that a person had a cumulative exposure to asbestos of 25 fibre/ml years or more, then this should be sufficient to show that asbestos has a causative role in lung cancer. 25 fibre/ml years equates to approximately one year of heavy exposure to asbestos (e.g. through lagging) or five to ten years of moderate exposure (e.g. from construction or ship building).

Some of the case law on the threshold of asbestos exposure required for an asbestos-attributable lung cancer suggests that it should be higher than the threshold of 25 fibre/ml years, and depends on the type of asbestos fibres (blue, brown and/or white). 

Our medical expert interpreted John’s asbestos exposure as heavy asbestos exposure, but he did not have asbestosis. John also had heart disease, diabetes and prostate cancer and was worried about developing further asbestos-related conditions, such as mesothelioma, a cancer of the lining of the lung which usually has a very short life expectancy. 

We issued court proceedings and the defendant vigorously denied liability, questioning whether John’s former employment with British Rail had exposed him to asbestos and increased his risk of lung cancer.

As is usual in lung cancer cases, the court ordered that both parties obtain engineering experts’ reports. However, before our engineering evidence was received, the defendant made a settlement offer of £50,000. The offer was made on a provisional damages basis which meant that if John accepted it, he would be able to return to court to claim further damages from the lagging company if he developed a new asbestos-related condition such as mesothelioma, a second asbestos-related lung cancer or a recurrence of the same lung cancer. He could also come back to court to claim further damages if he contracted asbestosis or pleural thickening. 

After further negotiations, the case settled for a £55,000 provisional damages award, giving John the reassurance of knowing that if his condition deteriorates again or if he develops mesothelioma like some of his former colleagues, he can come back to claim further compensation to assist him with paying for care and assistance.

For further information about claims for asbestosis, please contact the mesothelioma and asbestos claims team by email at idclaims@boyesturner.com.