Asbestos related disease news

 

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

Have you read "Asbestos Alert"?

Asbestos alert is a free quarterly e-newsletter prepared by Peter Olszewski at Boyes Turner Solicitors and is available to anyone who is involved in asbestos care, treatment or management and also to asbestos victims.

Each quarter the newsletter reports on matters such as:

  • Updates in the law regarding asbestos
  • Interesting stories on the historical uses of asbestos
  • Asbestos victim’s personal stories
  • A question and answer session prepared by specialist asbestos lawyers
  • Articles on asbestos in the world today
  • Legal battles successfully pursued by the Boyes Turner industrial disease team
  • Charitable events the Boyes Turner industrial disease team are taking part in for asbestos related causes

And much more…

The newsletter is a fantastic way of keeping up to date with what is happening in the legal minefield of asbestos litigation, with Boyes Turners recent successes and how the team are helping charities with vital work to beat diseases such as pleural thickening, asbestosis, asbestos induced lung cancer and mesothelioma.

Boyes Turner's Mesothelioma and Lung Cancer Study Day 2016

On Friday 16 September 2016 Boyes Turner’s expert asbestos disease team hosted a free mesothelioma and lung cancer study day at our offices at Abbots House, Reading. The event was attended by a number of medical professionals involved in the fields of mesothelioma and lung cancer, including lung cancer specialist nurses, respiratory physicians, oncologists and radiologists.

The day began with a talk from Dr Anthony Edey, a Consultant Cardiothoracic Radiologist from North Bristol NHS Trust. Dr Edey spoke about imaging mesothelioma and the most effective imaging available to diagnose mesothelioma as early as possible.

Professor Adrian Dobbs of the University of Greenwich then spoke about drug discovery and mesothelioma research and how his team, in conjunction with Peter Szlosarek of Barts Cancer Institute, were looking into innovative drug therapies for mesothelioma.

Dr James Myerson, Consultant in Respiratory and General medicine from Brighton and Sussex University Hospital NHS Trust spoke about asbestos related lung cancer. Dr Myerson highlighted the long association between asbestos exposure and lung cancer, and the steps which can be undertaken by respiratory physicians to assess if a lung cancer may be asbestos related.

Following an opportunity for the delegates to network, Jenny Mitchell an Advanced Nurse Practitioner in Thoracic Surgery from Oxford University Hospitals NHS Trust, spoke about the role of surgery and subsequent care in mesothelioma and lung cancer. Jenny looked at, among other things, different forms of pleural drainage and the need to encourage patients to quit smoking before surgery.

Greg Byrne from RB Asbestos then spoke to the delegates about the history of asbestos and where it can be found. Greg highlighted the different categories of workers who may be exposed to asbestos and how asbestos should be managed.

The afternoon session was commenced by Caroline Barry, Mesothelioma UK Welfare Benefits Adviser. Caroline spoke about the different benefits available to mesothelioma patients and what the delegates could do, in terms administration, to assist mesothelioma patients to recover the maximum benefits to which they were entitled to. Caroline is also an adviser for the Citizens Advice Bureau.

Mavis Nye and her husband Ray Nye then took the conference down a different path and spoke about mesothelioma from the perspective of a mesothelioma patient and carer. Mavis highlighted the importance of an early diagnosis and how GP’s can help by considering asbestos related disease early on. Mavis has helped to produce a questionnaire for her local GPs, which highlight asbestos related disease as an early consideration of breathlessness.

Following a short networking break, Peter Olszewski from Boyes Turner spoke to the delegates about the Diffuse Mesothelioma Payment Scheme 2014 and the options available to mesothelioma patients when an insurer cannot be identified for the employer who exposed them to asbestos.

We can assist in applications under the Diffuse Mesothelioma Payment Scheme 2014 and have had a number of successful applications.

The day was closed by Mr Faheez Mohamed, Consultant Colorectal Surgeon for Hampshire Hospitals NHS Trust, who spoke about Cytoreductive surgery and hyperthermic intraperitoneal chemotherapy for abdominal mesothelioma. Mr Mohamed looked at the different types of peritoneal mesothelioma and the type of treatment which his centre can offer. Mr Mohamed confirmed that Basingstoke hospital is currently the only centre offering the above treatment for peritoneal mesothelioma.

We’ve already had some excellent feedback and comments from attendees including the following:

“Well organised day. Good variety of speakers and topics. Exceeded my expectations.You need to market this excellent study day to chest physicians, surgeons and thoracic oncologists. I have learnt lots today that I can take back to practice, Thank you”

The study day is aimed at nurses, doctors, consultants and all other medical professionals who treat and care for, or have an interest in the treatment and care of people with mesothelioma and lung cancer. The event was accredited by the Royal College of Physicians and the Royal College of Nursing.

Asbestos exposure levels in asbestosis and lung cancer claims

Asbestos exposure can cause a multitude of diseases to include pleural plaquespleural thickeningasbestosis, pleural mesothelioma, peritoneal mesothelioma and asbestos induced lung cancer, the latter 3 of which are fatal conditions.

For medical practitioners to confirm a link between asbestos exposure and each of these diseases it is essential to establish exactly how much asbestos a person was exposed to.  This can be determined by conducting air tests in a work place, from witness evidence or by counting fibres of asbestos within a person’s lung.

Air tests

Air tests are (in simple terms) conducted by placing a hoover styled machine in a work place.  The machine is fitted with a filter which catches microscopic asbestos fibres as they are sucked through the machine.

Scientists will then examine the filter in numerous places and will count the microscopic fibres.

Asbestos fibres - Boyes Turner asbestos claims lawyers

The count of the microscopic fibres is then averaged against the number of slides reviewed to calculate the number of fibres in the air.  This is known as a fibre ml count and literally counts the number of fibres present in each millilitre of air in the work place.

Witness evidence

When conducting fibre tests the scientist will also take notes as to the visible dust/fibres present in the air and the practice taking place to produce the visible dust/fibres.

Where fibre ml counts have not been conducted a witness can provide oral evidence as to the workplace practices he was conducting and the visible dust/fibre in the air.

Experts can then compare the witnesses account to scientific notes and previous fibre ml counts to determine how much asbestos was likely to be present in the witnesses vicinity.  Once this task has been conducted it is usual to be able to predict a likely fibre ml count that the person encountered.

Lung sample counts

Lung sample counts are conducted in a similar way to air tests, i.e. microscopic fibres are counted on lung tissue.

So how much asbestos exposure is required to satisfy a diagnosis of asbestos or lung cancer

The Helsinki criteria

In 1997 a group of scientists concerned with asbestos exposure met in Helsinki to discuss asbestos fibres and the effect of the same on a person’s health.  As a result of this conference a fibre ml level of 25 fibre/ml years was deemed to be the level upon which asbestosis or lung cancer could be deemed as being caused by asbestos exposure.  This is now known as “the Helsinki Criteria”.

To satisfy the Helsinki criteria an asbestos victim must show that his exposure was above 25 fibre/ml years.  This level of exposure can be accrued in a number of ways, i.e. 1 years exposure at 25 fibre/ml or 5 years exposure at 5 fibre/ml per year.  In general terms a year of substantial exposure or a longer term of moderate exposure is required to satisfy the criteria.

But is the Helsinki criteria outdated?

The Industrial injuries Advisory Council

In its 2005 paper entitled, “Asbestos-related diseases”, the Industrial Injuries Advisory Council (“IIAC”) considered the criteria by which asbestosis could on the balance of probabilities be attributed to asbestos. The paper at paragraph 60 says this about the Helsinki criteria:

“In 1985, Sir Richard Doll and Julian Peto reviewed the evidence for health hazards associated with asbestos and as far as asbestosis was concerned they concluded that there was a threshold of cumulative exposure below which clinical disease did not occur. They judged that this threshold was about 25 fibres/ml. years (that is an exposure equivalent to 25 years at 1 fibre/ml, 10 years at 2.5 fibres/ml, and so on). It is still believed that the threshold for asbestosis for most people is around this level…

In 1997 the Helsinki workshop proposed that attribution to asbestos should be assumed in cases of lung cancer with 25 fibre years exposure …

There are … problems with the use of 25 fibre years as an exposure criterion”

First, the Council received evidence that the risk of lung cancer varied between different industries at similar levels of cumulative exposure to asbestos; this was in part, but not wholly explained by, exposure to different asbestos fibre types. Using 25 fibre years is unlikely to be valid for all occupations. The Council recognises there are variations in risk from different types of asbestos, but most workers are exposed to mixtures of fibres and for the purposes of the Scheme the common properties must be considered.

Second, calculation of risk based on this formula is not a very satisfactory method for deciding occupational attribution for the purposes of the Scheme. This can be illustrated using another risk formula produced by Doll and Peto in 1988 from which it can be calculated that a doubling of risk of lung cancer would be reached on average only after 100 fibre years asbestos exposure. The level of exposure required to double risk of lung cancer can be calculated as 25 fibre years or 100 fibre years depending on the risk formulae used, demonstrating the difficulty of using this method for deciding attribution….”

This is the current state of scientific opinion on the issue.

The IIAC concluded that:

“We recommend that diagnosis of asbestosis be based on clinical evidence of interstitial pulmonary fibrosis and a history of substantial asbestos exposure. High counts of asbestos bodies or fibres in the lungs may be used to support the diagnosis of asbestosis. However, a lack of asbestos fibres or bodies should not be used to exclude a diagnosis of asbestosis as asbestos bodies may be absent and fibres not increased above background level in clear cut cases (i.e. these counting techniques have a significant false negative rate).”

The IIAC continued:

“42. The Council recommends that:

  1. a) Diagnosis of asbestosis should be based on clinical evidence of interstitial lung fibrosis and a history of substantial occupational exposure to asbestos.
  2. b) The absence or low numbers of asbestos bodies or asbestos fibres in the lungs should not be used to exclude a diagnosis of asbestosis in claimants with a history of substantial occupational asbestos exposure …

Provided IIAC’s new criteria are met, the chance that a patient has asbestosis (rather than idiopathic pulmonary fibrosis) is more than doubled.”

So the new test appears to be one of considering whether a person has suffered “substantial” exposure to asbestos.  But what constitutes substantial exposure?

Case law on the point

In the case of Wallhead v Rushton and Hornsby Ltd. (1973) 14 KIR 285, Bagnall J. considered that “substantial” meant “not negligible”, and this meant a lot of dust when given off, not merely by accumulation over a period.

This approach was accepted by Roger Toulson QC, as he then was, in Bailey v Reed Corrugated Cases Ltd. (1993), where he found that an outsider going in to a factory during an asbestos clean-up would have said that the operation gave rise to clouds of dust or “lots of dust”.

Substantial therefore appears to mean a lot of dust when given off and not necessarily as high a count as 25 fibre/ml years.

The position moving forward

In many cases where asbestos exposure is extremely high the Helsinki criteria may be suitable to confirm that asbestos exposure levels were such to have caused a disease.

In other cases the asbestos exposure levels may not satisfy the Helsinki criteria in precise fibre ml terms, but, if the exposure can be described as “substantial” and “not negligible” then an asbestos victim may be able to prove the link between his asbestos exposure and his disease.

Our view

In most asbestos related disease claims a victim has no other explanation for his condition other than his exposure to asbestos in the workplace.  For a victim to be denied compensation simply because he does not meet a specific fibre ml threshold will often seem unjust, especially where he has suffered substantial asbestos exposure in the past.

Lung cancer in asbestos workers is not a result of lifestyle choice

The Guardian reported on 26 November 2014 that lung cancer survival rates in the UK are lower than in most of Europe, whilst breast cancer survival rates are amongst the highest.

The lead author of the Concorde-2 study of data from 67 countries is quoted as saying that in some countries cancer is far more lethal than in others, whereas in the 21st century there is no reason for there to be such a gulf in survival rates between wealthy countries.

“The majority of the variability in survival is probably due to factors that can be changed” says Dr Claudia Allemani “such as the availability and quality of diagnostic and treatment services.”

So what might explain this gulf in the UK? Could one answer be found within the “comments” section at the foot of the online article, which indicate that many people consider lung cancer to be a “self-inflicted” disease, presumably because many of the victims of lung cancer smoked at some point in their lives.

Setting aside the obvious objection that there are undoubtedly lung cancer sufferers who have never smoked, one interesting point is raised – could it be that lung cancer receives less attention and becomes a “give up” disease, precisely because it’s thought to be a result of lifestyle choices? UK survival rates for breast cancer are amongst the highest in Europe – would that be any different if the root cause of breast cancer was discovered to be a result of a lifestyle choice?

Here at Boyes Turner we act for many claimants who have sadly developed lung cancer as a result of exposure to asbestos in the workplace. Many of these people also smoked at the time of the exposure, which was often back in the 1960’s and ‘70’s, when the dangers of smoking were only just becoming common knowledge.

What we do know is that there is a synergistic interaction between smoking and asbestos. In other words, whilst tobacco smoking is of itself a major risk factor that risk has been found to be greatly increased by exposure to asbestos fibres.

The Health and Safety Executive in the UK funded a report into the joint effects of asbestos exposure and smoking. (“The Joint Effect of Asbestos Exposure and Smoking on the risk of Lung Cancer Mortality for Asbestos Workers 1971 – 2005”). Amongst the many findings was the fact that 2% of lung cancer deaths occurred in asbestos workers who had never smoked.

Boyes Turner attend Lung Cancer Nurses Forum Meeting

On 20th and 21st November 2014, representatives from Boyes Turner attended the National Lung Cancer Nurses Forum meeting held at the Queen’s Hotel in Chester.

Boyes Turner were one of the sponsors of the event and our representatives were available to meet the nurses and exchange information about the work that we both do. As well as representatives from a number of related industries, there were also presentations on a number of different topics ranging from case studies, lung cancer genomes and surgical intervention.

It is extremely valuable for us to meet with professionals from the medical industry to ensure that we as legal professionals are fully up to date and can advise our clients appropriately on any avenues of treatment that they may wish to pursue.

We also had a valuable opportunity to talk to medical professionals to help ensure that any patients diagnosed with an asbestos related lung disease are given the correct advice in respect of pursuing a claim and/or making a claim for benefits to which they may be entitled.

Compensation for asbestos related lung cancer on the rise

The number of individuals diagnosed with an asbestos related lung disease continues to rise and those numbers are expected to increase over the next few years.

Often individuals are only directed towards a specialist solicitor if they are diagnosed with one of the better known asbestos related lung diseases such as mesothelioma or asbestosis. However, small or non-small cell lung cancer can be caused or contributed to by asbestos exposure.

The Health and Safety Executive have said that there are as many asbestos related lung cancer deaths each year as there are mesothelioma deaths, i.e. around 2000 deaths per annum in the UK.

There is no clinical means of distinguishing between lung cancer caused by asbestos and lung cancer caused by smoking. If an individual is suffering from lung cancer their treating surgeons will often ask whether they have ever smoked. If the answer is yes then sometimes no further enquiry is made so that the treating doctors may not find out that there has been excessive exposure to asbestos meaning that the possibility of a claim is not raised.

If someone has been exposed to asbestos and is diagnosed with lung cancer they may be able to pursue a claim for compensation (and may be entitled to government benefits), even if they have previously smoked. People who smoke and have had substantial exposure to asbestos are at a significant increase of developing lung cancer. The fact that they may have smoked does not mean that a claim will not succeed.

Smokers with asbestosis (fibrosis of the lung) resulting from breathing in asbestos fibres have a very high risk of developing lung cancer. Those who have not smoked, but who have suffered substantial exposure are also at risk of developing lung cancer.

Historically, there has been a presumption that lung cancer could not be attributed to asbestos unless the person also has asbestosis. However, asbestos related lung cancer can also be proven where there is an occupational history of significant exposure to asbestos or 5-10 years of moderate exposure (regardless of smoking history). As a general rule, the greater the level of exposure the more likely it is that a link between lung cancer and asbestos exposure can be established.

If there is a possibility that asbestos has played a part in the development of lung cancer a solicitor should be contacted to discuss the possibility of making a claim particularly where there is also evidence of pleural plaques or asbestos related diffuse pleural thickening.

When there is a death as a result of lung cancer and asbestos is considered to have played a part it is important that the local Coroner is notified of the death and that a post mortem takes place. Lung tissue samples will normally be analysed for asbestos, which together with exposure history can prove asbestos related lung cancer claim.

Boyes Turner have successfully pursued many claims for asbestos related lung cancer.

For example, we have acted for a client who worked close to asbestos laggers in battleships and aircraft carriers which were being repaired and refitted in Portsmouth Naval Dockyard. The laggers stripped dry asbestos from pipes and mixed up powdered asbestos with water in buckets to make a fire resistant paste that was applied to the inside of the ships. Our client developed asbestos related lung cancer. The claim for lung cancer compensation was settled on a full and final basis just over a year from the date of instructions.

We can also assist families of those with lung cancer who may wish to bring a claim on behalf of a deceased’s estate.

We have recently acted for a pipe fitter who had been diagnosed with lung cancer during his lifetime. Sadly, our client passed away very suddenly, before he could provide the Boyes Turner asbestos disease team with a witness statement that gave evidence of his asbestos exposure.

Despite our client’s death, we were able to continue with the claim on behalf of his widow. Initial information from our client’s widow and family suggested that our client had worked as a pipe fitter all over North West England and North Wales, but predominantly in the Manchester and Nottingham areas. Although the family felt that our client would have been exposed to asbestos during these employments, they were unable to pinpoint specific jobs that our client worked on for each company or give information as to how, exactly, our client worked with asbestos.

The Boyes Turner asbestos disease team carried out extensive investigations into the potential defendants, including witness appeals in the Manchester and Nottingham areas. We managed to trace witnesses who could provide information about our client’s likely asbestos exposure with his former employers. This involved exposure to asbestos from removing asbestos pipe lagging and from working near laggers who insulated pipes and boilers with asbestos lagging whilst our client worked in the same area.

After more than 4 years of extensive investigations and searches, we settled this complex asbestos related lung cancer compensation claim on behalf of the estate of our late client for £145,000.

It is important to note that there are time limits in place in respect of the making of a claim. Generally the time limit for making a claim is three years from the date of diagnosis of an individual’s asbestos related lung disease.

Boyes Turner LLP are happy to discuss individuals making a claim with no obligation to take matters further. We can also assist in respect of families of those with lung cancer who may wish to bring a claim on behalf of a deceased’s estate.

Boyes Turner attend Lung Cancer Nurses Forum 2013

In November 2013, representatives from Boyes Turner LLP attended the National Lung Cancer Nurses Forum meeting held at the Hotel Russell, London.

Boyes Turner were one of the sponsors of the event and our representatives were available to meet the nurses and exchange information about the work that we both do. As well as representatives from a number of related industries, there were also presentations on a number of different topics ranging from case studies, advances in treatment and palliative care.

It is extremely valuable for us to meet with professionals from the medical industry to ensure that we as legal professionals are fully up to date and can advise our clients appropriately on any avenues of treatment that they may wish to pursue.

We also had a valuable opportunity to talk to medical professionals to help ensure that any patients diagnosed with an asbestos related lung disease are given the correct advice in respect of pursuing a claim and/or making a claim for benefits to which they may be entitled.

The service provided was first class. You were understanding, caring and professional

David Froud

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