Asbestos related disease 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

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.

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