Asbestos news

 

Melloney Harbutt receives Asbestos Disease Specialist accreditation from APIL

Kim Smerdon, head of Boyes Turner’s successful industrial disease and personal injury teams is pleased to announce that senior associate solicitor, Melloney Harbutt, has been awarded Asbestos Disease Specialist status by APIL. 

Melloney acts exclusively for people from a wide range of trades and occupations who have suffered asbestos-related diseases, including pleural thickening, asbestosis and mesothelioma, with a particular interest and specialism in difficult lung cancer cases. She recovers compensation for individuals and their bereaved families from their former employers’ insurers, and for mesothelioma sufferers under the Diffuse Mesothelioma Payment Scheme. She achieves justice and compensation for those exposed indirectly to asbestos dust, such as on a relative’s clothes or from living close to an asbestos factory.

Melloney has dedicated her career to making a difference to the lives of those affected by asbestos. She works hard to secure lifetime settlements, provisional awards in case of possible future malignancy, and justice for her injured clients in hard fought and evidentially difficult cases, achieving success where less experienced solicitors might fail.

We are delighted that her expertise, commitment and dedication to helping these deserving clients has been recognised.

If you or a family member has been diagnosed with mesothelioma or any other asbestos related disease, we may be able to help. Contact us on 0800 884 0718 or email IDClaims@boyesturner.com for a free initial discussion.

Immunotherapy treatment for mesothelioma patients

Pembrolizumab – Immunotherapy treatment

Medical professionals are continually investigating new ways to help mesothelioma patients. There are always a number of different trials looking at improving symptoms and curing mesothelioma. All of these trials can be found by looking on the NHS website. One such treatment currently on offer is private immunotherapy treatment.

The treatment is with a drug called Pembrolizumab. Pembrolizumab has not yet been approved by the National Institute for Health Care and Excellence (“NICE”) in the treatment of mesothelioma patients and therefore currently is not available as a free treatment on the NHS. We are unaware of any indication that NICE will be approving Pembrolizumab any time soon.

Pembrolizumab has, however, in limited clinical trials, demonstrated increased survival rates in mesothelioma patients. It is therefore something that many patients with mesothelioma are considering.

How does immunotherapy treatment work?

Put simply, the drug works by making the cancer highly visible to the patient’s own immune system. The patient’s own immune system then kills the cancer.

Immunotherapy treatment and mesothelioma claims

As Pembrolizumab is not currently approved by NICE as a treatment for patients with mesothelioma and is therefore not available on the NHS, the current cost of treatment on a private basis is estimated at £75,000. 

Last year, at Boyes Turner, we were delighted to report our mesothelioma team’s success in securing a settlement for a client which included the cost of this treatment as a separate aspect of his claim. We insisted that as our medical expert believed our client should receive this treatment, he should not have to use the compensation he was awarded for other areas of his loss if he needed the immunotherapy treatment in the future. 

Fortunately, our client did not have to go through court proceedings to achieve his settlement, but we were delighted to hear that in a recent mesothelioma claim, the court has now ordered that treatment for immunotherapy should be funded by the defendant’s insurers.

Instead of waiting for the treating doctors to advise that the mesothelioma sufferer could have immunotherapy treatment, the court in an attempt to reach a quick settlement for the injured claimant, ordered that he could at any time request the costs of his immunotherapy treatment be funded by the insurers.

An order was given for periodical payments, so that mesothelioma claims can be settled without the injured claimant having to wait until their condition deteriorates to the point that their need for immunotherapy treatment is confirmed. The claimant can have the peace of mind of knowing that if or when they need immunotherapy treatment, the insurers have agreed to fund it automatically, whatever the cost.

At Boyes Turner we work hard to ensure that as many of our mesothelioma-affected clients as possible receive lifetime settlements, and we welcome the good news that we do not have to delay the outcome of any mesothelioma claims pending the decision on eligibility for immunotherapy treatment.

Having successfully recovered the cost of immunotherapy treatment for our own eligible mesothelioma-affected clients, we will continue to push the boundaries to improve compensation in mesothelioma claims.

Mesothelioma trials

Our asbestos team are committed to helping change the futures of mesothelioma patients by continuing to research the disease and striving to improve management of symptoms.

Charities such as Mesothelioma UK are strong advocates of ongoing trials and improvements on symptom management for mesothelioma patients and the Boyes Turner asbestos claims team support their efforts with annual sponsorship and fundraising.  

With a number of different trials now available for mesothelioma patients, this decision gives hope that settlement can still be reached in mesothelioma claims without eliminating the opportunity for a client to recoup their costs of any future experimental treatment.

If you or a family member has been diagnosed with mesothelioma or any other asbestos related disease, we may be able to help. Contact us on 0800 884 0718 or email IDClaims@boyesturner.com for a free initial discussion.

Positive result for mesothelioma claimants in Bussey v Anglia Heating Ltd

We are delighted to read that the Bussey’s appeal has been allowed and that the Judges rejected Technical Data Note 13 as the test in determining the applicable levels of asbestos exposure in mesothelioma cases. 

David Bussey was a plumber. He was exposed to asbestos during two periods of employment so there was more than one defendant to the claim. The claim against Avery Way Electronics Limited settled for £150,000 and the case continued against the remaining defendant, Anglia Heating Limited, with whom he was employed from about 1965 to 1968. During that time he handled and cut asbestos cement pipes (with a hacksaw), swept up asbestos and used asbestos rope for caulking joints. 

When the case first came to trial, the judge ruled that his asbestos exposure fell below the levels set out in Technical Data Note 13 (TDN13). TDN13 was a document issued by HM Factory Inspectorate in March 1970. This stated that criminal liability would not be incurred where the concentration of asbestos dust in the workplace was kept below certain specified limits.

In the case of Williams –v- University of Birmingham [2001] EWCA CIV 12 42, it was held that a claim could not succeed if the exposure was below the levels in TDN13. This made it far more difficult to succeed in obtaining justice for injured victims in low level asbestos mesothelioma cases. The judge in Williams laid down a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN13 as safe, resulting in TDN13 being used as a guide as to what were acceptable and unacceptable levels of exposure in 1974. 

However, the Court of Appeal judgment in Bussey rejects the proposition that employers were entitled to regard exposure levels below those specified in TDN13 as being safe. Lord Justice Jackson says in the judgment that: “TDN13 sets out the exposure levels which, after May 1970, would trigger a prosecution by the Factory Inspectorate. That is a relevant consideration. It is not determinative of every case”. 

The decision in Bussey means that while TDN13 is a guide, it is not the benchmark for asbestos exposure and TDN13 does not establish a safe limit for exposure to asbestos. 

We are delighted that the often-quoted benchmark of TDN13 has now been overturned. 

The case has been sent back to the trial judge for him to re-determine the issue of liability and we are now awaiting that decision.

If you or a family member has been diagnosed with mesothelioma or any other asbestos related disease, we may be able to help. Contact us on 0800 884 0718 or email IDClaims@boyesturner.com for a free initial discussion.

Education Bursary - Alison Bain's story

As specialists in mesothelioma and other asbestos-related disease claims, Boyes Turner appreciate the valuable work carried out by the lung cancer nurses who support and care for victims of asbestos exposure during their hospital treatment and palliative care. 

In recognition of the value of their work, the importance of ongoing education and research into asbestos disease and the significant costs involved in updating their knowledge and skills, Boyes Turner offer sponsorship to nurses involved in thoracic oncology via an educational bursary. The bursary is awarded selectively, on application, to a limited number of nurses each year at Boyes Turner’s discretion.

Alison Bain, Lead Clinic Nurse Specialist at Royal Stoke University Hospital, reviews her experience after receiving sponsorship to attend the 2017 Annual Conference of the National Lung Cancer Forum for Nurses (NLCFN).

“The National Lung Cancer Forum for Nurses Annual Conference provides a tremendous opportunity for pollination of new ideas, innovations, learning from past experiences and is an invaluable resource to all that attend.

This year’s conference was fantastic, so I am truly grateful to Boyes Turner LLP for providing funding; without this, I certainly would not have been able to go.

The programme delivered an excellent range of patient centred topics, covering interesting facts, strategic development and interventions. On a personal level, conference highlights included the interactive sessions, debate and Symposium sessions.

Drew Povey was an exceptional motivational speaker; his delivery on leadership and ‘Making THE Difference’ was fantastic and an inspiration to all of us. This was a session not to be missed and something that will be etched on the minds of members for many years to come!

The interactive session on tobacco addiction, with our role, as frontline CNSs, playing a key role in tackling this problem, was entertaining to say the least and stimulated competition within the groups. Likewise, the debate for the right to a HNA was extremely witty, well delivered but also challenged personal opinions and provided an opportunity for reflection.

Consideration for future workforce planning and establishing competencies required for the next generation of Nurse Specialist, debate around the necessity to adapt to the ever-changing environment and push for succession planning strategies as budgets tighten, stimulated many discussions about CNS personal and academic development. Group work created an initial draft of bullet points which were considered to be essential in the validation of lung cancer specific competencies. Other broader issues gave ‘food for thought’ on sustainable and viable working practices, the need to adapt and be creative and how to implement an accelerated diagnostic pathway.

New developments, research and treatment considerations for mesothelioma and NSCLC third generation agents, poster presentations and the general presence of sponsored stands ensured that the event catered for all needs.

A truly enjoyable event, thank you.”

Alison Bain, Lead Clinic Nurse Specialist, Royal Stoke University Hospital

To learn more about our Education Bursary and how you can get involved please contact bursaries@boyesturner.com.

 

Compensation award for former telecommunications engineer from Diffuse Mesothelioma Payment Scheme

Boyes Turner’s specialist industrial disease team were instructed by Joseph* following his diagnosis of mesothelioma, an asbestos related cancer.

Joseph had been exposed to asbestos dust while working for Sterdy Telephones, a telecommunications company in London in the late 1960s and early 1970s. He had joined Sterdy Telephones straight from school as an apprentice in telecommunications engineering. 

He worked in telephone exchanges where he was required to lay cables, many of which had asbestos insulation to protect them. He had to trim, strip and cut the cables to size.  When he cut into the insulation, this created dust which went on his hands and his clothes.

He had to drill holes into insulation panels, known as ‘Transite covers’, in order to install the wiring. These contained asbestos and, when Joseph drilled into them, dust would circulate. When he dragged the cables through the holes, this further disturbed the panels and created more dust.    

He also moved fire breakers, which were cloth bags filled with asbestos. He dragged them into place, which caused dust to fall out of the bags.  This would gather on the floor and be trodden in throughout the day, causing it to circulate further.  

We investigated Sterdy Telephones and discovered that they were dissolved many years ago.  We were unable to trace any employers’ liability insurance from Joseph’s time of employment. This is a common problem in asbestos cases because employers’ liability insurance was not mandatory until 1972. Even where a policy was in place at the time of our client’s employment, it can be hard to trace decades later, as there was no central database of insurance policies at this time. 

As there was no traceable insurer, we made an application under the Diffuse Mesothelioma Payment Scheme, which was set up to compensate victims of mesothelioma who were negligently exposed to asbestos by uninsured employers. 

We took a detailed statement from Joseph which described his asbestos exposure at Sterdy Telephones, and we assisted him in completing the application form. The application was initially unsuccessful, as the administrators of the scheme felt that there was not enough evidence that our client was negligently exposed to asbestos. In order to satisfy the administrators’ concerns we traced a former Boyes Turner client who had also worked in telephone exchanges in the 1960s and 1970s and obtained his permission to use his statement from his former claim to help our client with his application. We took a further supplementary statement from Joseph setting out in detail how he was exposed to asbestos at Sterdy Telephones and obtained an opinion from an expert engineer, which supported the assertion that Joseph would have been negligently exposed to asbestos when working for Sterdy Telephones. Then we submitted a request for the administrators of the scheme to review their decision. They did so, overturning the previous decision, and awarded Joseph £179,091 gross compensation.

While no amount of money can make up for what Joseph and his family are going through, we were pleased that we were able to assist him at such a difficult time.

If you or a family member has been diagnosed with mesothelioma or any other asbestos related disease, we may be able to help.  Contact us on 0800 884 0718 or email IDClaims@boyesturner.com for a free initial discussion

*Client name changed for anonymity

Should cohabitees receive bereavement damages

This was a question recently faced by the Court of Appeal after Ms Jakki Smith took the Secretary of State for Justice to Court for breaching her human rights.

Who can claim bereavement damages?

The Fatal Accidents Act 1976 gives rise to the right to claim bereavement damages. The Act allows the wife, husband or civil partner of the deceased to claim damages for their bereavement. Payment is also made to the parents of the deceased where the deceased was a minor. The current payment for bereavement damages is £12,980. At the time that Ms Smith’s partner, John Bulloch, died it was £11,800 and this was the amount she was seeking.

Does a cohabitee get anything?

Unlike the payment for bereavement damages, which a cohabitee is not entitled to claim under the Act, a cohabitee can claim for a financial dependency on the deceased. This claim is possible where the deceased and his partner have been cohabiting for at least 2 years before the death and have been cohabiting as husband and wife.

What was Ms Smith’s case?

Ms Smith argued that by excluding her from those people entitled to claim bereavement damages the Government was breaching her Human Rights. The Court of Appeal agreed with Ms Smith and found that section 1A of the Fatal Accidents Act 1976 was incompatible with Article 14 in conjunction with Article 8 of the European Convention on Human Rights.

Unfortunately, although Ms Smith’s case will set a precedent for other unmarried cohabiting partners to seek bereavement damages, she will not benefit from the decision. This is because although the Secretary of State was acting in a way which was incompatible with Ms Smith’s convention rights, they could not have acted differently due to the provision of the Fatal Accidents Act which does not allow cohabitees to claim bereavement damages.  

How does this affect mesothelioma and asbestos claims?

In giving his judgment Sir Terence Etherton MR commented on the declining “popularity of the institution of marriage and the increase in the number of cohabiting couples”. According to the Office of National Statistics in a report on “Families and Households” in 2015, “cohabiting couples continues to be the fastest growing family type in the UK, reaching 3.2 million cohabiting families”.

This decision can be used as a precedent to persuade defendants that bereavement damages should be paid to cohabitees in line with financial dependency claims under the Fatal Accidents Act 1976. 

Bereavement damages frequently form a part of mesothelioma and asbestos claims and therefore this is a decision which will benefit a number of our clients. However, the Fatal Accidents Act 1976 has not yet changed to allow a statutory entitlement to bereavement damages for cohabitees and we look forward to seeing a change to the Fatal Accidents Act 1976 in the near future.
 

Is there a link between Idiopathic Pulmonary Fibrosis and Asbestos?

Asbestos-related disease deaths

The Health and Safety Executive predicts that the number of deaths from mesothelioma will peak in or around 2020. This is based upon the amount of asbestos imported into the UK and the widespread, industrial use of asbestos, particularly between 1950 to 1980.

The expectation is that as asbestos use declined, exposure to asbestos dust would also have declined and therefore the number of deaths is expected to drop accordingly.

Most diseases caused by exposure to asbestos have long latency periods of typically between 20 and 50 years, which is why there is such a long time between the reduction in the use of asbestos and the predicted peak in asbestos-related mortality.

What is IPF? 

Idiopathic pulmonary fibrosis (IPF) is an irreversible lung disease which results in breathlessness which will worsen over time. ‘Pulmonary fibrosis’ is used to describe the scarring of the lung tissue which causes the shortness of breath. The designation ‘idiopathic’ is given when the cause of the lung fibrosis is unknown.

Who does IPF affect?

Mortality due to IPF in the UK continues to rise and accounts for approximately 5000 deaths per year. In 2012 about 32,500 people were diagnosed with IPF in the UK, with a high incidence in Northern Ireland, North West Scotland, Scotland and Wales. The risk and incidence of IPF increases significantly with age, so IPF is diagnosed more frequently in those over 40. 

How is it distinct from asbestosis?

Whilst IPF shares many of the same characteristics as asbestosis, one of the most important distinctions is that a claim for compensation cannot be made for IPF, but a claim can be made for asbestosis. 

Why is IPF on the increase?

There appears to be no reason for the rising incidence of IPF in the UK. IPF has been linked with occupations such as metal and woodworkers, textile or stone exposure or from cattle or farming exposure. Infection from particular viruses might be another cause. 

Can IPF be linked with asbestos exposure?

A recent study compared the number of deaths of mesothelioma, asbestosis and IPF with the level of asbestos imported for the relevant latency period. The number of male deaths due to IPF and mesothelioma for each year was very similar.

The number of female deaths due to IPF and mesothelioma also increased. The number of female deaths due to IPF was consistently higher than those due to mesothelioma.

However, the number of asbestosis deaths was lower for males and did not increase for females. 

What does this all mean?

The results of the study showed that the rising number of asbestos deaths and historic asbestos importation was connected.  The number of deaths due to IPF was also significantly related to previous asbestos imports. 

Although the study cannot conclude that IPF is caused by exposure to asbestos, it does raise interesting questions as to whether IPF is in fact due to unrecognised asbestos exposure.

Until clinical evidence is identified which links IPF with asbestos exposure, clinicians will be reliant upon patients providing clear evidence of their asbestos exposure when assessing whether or not pulmonary fibrosis could be asbestosis. If the patient cannot provide detailed evidence of exposure to asbestos dust, then it is highly likely that they will be diagnosed with IPF. 

When is it asbestosis?

In order to prove a claim for asbestosis, the history of asbestos exposure needs to be moderate to heavy for many years, together with clinical evidence of asbestosis.

An asbestosis claim can be proven where there is an occupational history of one year with heavy exposure to asbestos or five to 10 years of moderate exposure to asbestos. As a general rule the greater the level of exposure, the greater the extent of the asbestosis.

Disclosure documents in Cape claim to be made publicly available

The Asbestos Victims Support Group Forum UK has championed a campaign to the High Court to prevent the destruction of a vast number of documents, which were pulled together as a part of disclosure in the case of Concept 70 & others v Cape International Holdings Ltd [2017].

What was the Concept 70 case?

The original claim from Concept 70 was for a financial contribution from Cape, to the settlement of a number of asbestos disease claims which related to asbestos exposure between 1955 and 1980 with Cape.

A huge amount of disclosure was pulled together as a part of this claim in order to consider the insurers request for contributions from Cape. The Concept 70 case was settled before any judgment was handed down and The Asbestos Victims Support Group Forum UK had heard that a term of the settlement was that many of the documents held by Cape would soon be destroyed.

What did the Asbestos Victims Support Group Forum UK do?

The Asbestos Victims Support Group Forum UK appointed Graham Dring to bring the claim on their behalf. An application to the Court that these historic asbestos documents be preserved was made, pending a further application for disclosure.

On 5 December 2017 Master McCloud in the High Court, who also used to sit as a specialist asbestos judge, granted permission for a number of disclosure documents in the Concept 70 claim to be made available including witness statements, expert reports, transcripts, disclosed documents relied on by the parties at Trial, written submissions and skeletons and statements of case.

Why is this decision important?

The decision to order disclosure of these documents is significant for both mesothelioma claims generally and in particular future and current claims against Cape. It is hoped that the documents will allow an insight into the historic practices surrounding the use of asbestos in the asbestos industry and will assist mesothelioma and asbestos claimants to progress their claims as swiftly as possible to a successful conclusion.

What is so important about Cape?

Cape is intrinsically linked with the asbestos industry in the UK. It has frequently been thought that Cape hid their knowledge of the dangers of asbestos from their work force and the general public for 

a number of years, these documents will hopefully shed some light on this. Cape played a critical role in the asbestos industry and gave evidence to the Advisory Committee on Asbestos and heavily influenced historic policies on asbestos usage.

We fully support the decision to allow for disclosure of Cape’s documents and believe that this will greatly benefit our clients with mesothelioma.

What might the documents be used for?

In handing down her judgment Master McCloud considered the request for what the documents might be used for:

  • Make the material publicly available
  • To promote academic consideration as to the science and history of asbestos and asbestolux exposure and production
  • To improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s
  • Understand the industrial history of Cape and its development of knowledge of asbestos safety
  • Clarify the extent to which Cape is or is not responsible for product safety issues arising from the handling of asbestolux boards
  • To assist court claims and the provision of advice to asbestos disease sufferers.

Mavis Nye Foundation - Here to help all 'Meso Warriors'

On 07 December 2017 Boyes Turner Solicitors attended the Mavis Nye Foundation launch party at the Richmond Hill Hotel.

The Mavis Nye Foundation was started by Mavis herself following her lengthy, but successful battle with mesothelioma that started in 2009.

Mesothelioma is a terminal cancer suffered as a result of exposure to asbestos, the Industrial Disease team at Boyes Turner help sufferers and their families to get compensation from former employers to provide for their families after they are gone or in the case of one of the teams most recent high profile cases making sure that there is funding for treatment that is not available on the NHS.

The foundation has many aims, though its primary ones are:

  1. To raise funds for vital research in to mesothelioma treatments and cures.
  2. To fund specialist mesothelioma medical experts and lung cancer nurses.
  3. To provide hardship grants to mesothelioma victims and their families.

The launch party was well attended with some 200 people attending to include medical experts, lawyers, scientists and a number of "Meso Warriors", the surviving family members of mesothelioma victims.

The party included a champagne reception, a 3-course silver service meal, a raffle, an auction and an evening of dancing from Mavis' son who provided a night of 60's music entertainment.

The evening raised thousands of pounds for the foundation and Boyes Turner were delighted to donate a number of prizes to the raffle and auction.

Below are a number of photographs from the evening.

 

If you would like to donate to the Mavis Nye Foundation please visit

Q&A - Defunct defendants

Q The company I worked for is long gone, can I pursue a claim?

It is common for people to have been employed by companies many years ago in the 1950s, 1960s and 1970s which have since disappeared or been dissolved. We will search for the employers’ liability insurers for the period you were employed by the company. If we do manage to trace the applicable insurers, we can notify the insurers of your potential claim and obtain compensation from them.

Q In that case, would you sue the insurers directly?

Currently no.  It may be that we can negotiate a settlement prior to the issue of proceedings, but ultimately if the insurers are not willing to negotiate, we would need to issue the claim in the Court. Current legal practice is to issue proceedings against the company that employed you and we would need to make an application to the Companies Court to formally restore your employer to the Companies Register. This is a fairly straightforward process and is usually done “on the papers” without any need for a court hearing (which you would not be required to attend in any event).

Q Was a company required to have employers’ liability insurance?

Companies were required to have employers’ liability insurance from 1972 onwards. We have found that often large and indeed small companies had insurance prior to this date. The difficulty is that there was no requirement for the companies to keep a record of their insurance policies. There are several ways in which we can trace insurance though, including making an application to the Employers Liability Tracing Office, contacting former directors/secretaries, going through the old company records and accounts (to see if any premiums were paid to insurers) and instructing an insurance archaeologist.

Q What if no insurance can be found?

If no employers’ liability insurance can be found, then you can make an application under the Pneumoconiosis Workers Compensation Act for a lump sum from the Government.

Q I am suffering from mesothelioma though.  Surely some further compensation should be available?

Indeed!  An application can be made to the Diffuse Mesothelioma Payment Scheme 2014 if you are suffering from mesothelioma. Further information can be found here. One of the criteria is that asbestos exposure must have occurred during employment where the employer is no longer in existence and no insurance can be traced. The asbestos exposure also needs to have occurred negligently.

Q I am suffering from mesothelioma but I do not think I was exposed during employment.  Am I eligible for a court or government award?

If you believe you contracted mesothelioma through washing a loved one’s clothes, through environmental exposure or some other way, then it may still be possible to pursue a civil claim through the court provided the company is still in existence, or we know the identity of the applicable public liability insurers. The DMPS 2014 is only designed for cases of employment, but smaller government awards are available via the Diffuse Mesothelioma Payment Scheme 2008.  Please contact us for further information or visit this website. We can also advise whether it is possible to pursue claims where exposure happened during self-employment or through other means. Benefits may also be available and we recommend you contact Mesothelioma UK or we can direct you to a local support group to assist you with this.

If you or a family member have been diagnosed with an asbestos related disease, we may be able to help. Contact us on 0800 029 4808 or email IDClaims@boyesturner.com for a free initial discussion. 

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