Asbestos related disease news

 

Asbestos Sub-Committee Meeting, House of Commons, 12 December 2018

It was rather exciting to attend the all-party Parliamentary group on occupational safety and health, the Asbestos Sub-Committee on Wednesday 12 December 2018 in Room 11 in the House of Commons, just a few doors down from room 14 where Mrs May’s political fate hung in the balance. The atmosphere was buzzing, but the Asbestos Sub-Committee were focussed upon their important Agenda regarding asbestos issues.
 

Asbestos Victims Charter for Justice 

The Asbestos Victims Support Groups for UK updated us on the new draft Asbestos Victims Charter for Justice. It is a shocking statistic that in the UK this year more people will die of mesothelioma than will be killed on the roads. Every year the number of people affected by asbestos diseases continues to rise. The aim of the Charter is to set out a number of reforms that help achieve the aim of justice to asbestos disease sufferers and their families.
 
The Forum remind us that the UK has the highest mesothelioma incidents in the world. The main changes to the Charter since four years ago relate to fair compensation. 
 
We certainly support a new military veteran’s charter; especially that bereaved spouses can make an application for a lump sum, in the same way as under the Diffuse Mesothelioma Scheme and that lifetime payments ought to be increased to reflect the average civil claims pay-outs (which are increasing in themselves). 
 

Fair compensation 

Fair compensation was a common theme throughout the meeting. It was of some concern that posthumous awards made under the Pneumoconiosis etc (Worker’s Compensation) Act 1979 and the 2008 Diffuse Mesothelioma Scheme are not made at the same rate as in life payments. It was said that this mostly put women at a disadvantage as it is usually women (although not always) who are making claims following the death of a husband due to mesothelioma. The Scheme is a tariff and based on age. For example, someone suffering with mesothelioma that makes the application during life who is aged 75 (under the 1979 Act) will receive £14,995 whereas if the same application is made following their death under the 2008 scheme), the spouse will only receive £7,763.
 
Whilst the Diffuse Mesothelioma Payment Scheme 2014 appears to be working well, there are still some real deficiencies with the system. One such problem is that whilst payments are now said to be 100% of the original award in all cases, tariff payments should still be increased in line with CPI each year at the same time as social security benefits. The Sub-Committee heard that there should be a review of the Scheme every two years, using the most recent annual figures available to ensure tariff payments accurately reflect average civil compensation awards.
 
The point was made that the average that was previously applied in civil cases is no longer up to date. Mesothelioma awards in civil claims are often typically higher in recent months to allow for the costs of private treatment (not always available on the NHS) such as immunotherapy. The tariff for the Diffused Mesothelioma Payment Scheme should therefore increase accordingly. 
 

What about other asbestos related diseases?

The Sub-Committee didn’t just focus on instances of mesothelioma. It was recognised that there is also a need for a scheme, similar to the Diffuse Mesothelioma Payment Scheme, but for other asbestos related diseases such as asbestosis, lung cancer and diffuse pleural thickening. The only recourse for patients suffering with these diseases, where there is no applicable employers’ liability insurers, is via the Pneumoconiosis Workers Compensation Act Scheme (where the amount are substantially lower than under the 2014 scheme) and if they contracted the disease through means other than employment, there is no recourse. 
 
There is also a difference with the way in which claims for mesothelioma and those for other asbestos related diseases such as lung cancer can be funded. Mesothelioma claimants have always been able to recover their success fee and after the event insurance premiums from the losing defendants in successful cases. This was the case previously for other asbestos related disease claimants, but since April 2013, claimants are no longer able to do this. If a claim is successful, then a lung cancer claimant for example may have to have their success fee and insurance premium deducted from their compensation. There was a call therefore to bring about equality in terms of asbestos related diseases and justice for all people suffering from asbestos disease and to return to the previous position of recovering success fees and insurance premiums from defendants.
 

Report on the Forum’s case against Cape

Action had been taken to stop Cape destroying vital evidence from previous cases and that all disclosure of these documents was in the public interest. The High Court ruled in favour of the Forum against Cape, but Cape appealed and the case was heard again at the Court of Appeal over the summer. The Master allowed disclosure of a number of documents but provided that if there were further documents needed, the claimants would have to come back to Court to obtain permission for those further documents. There is now an appeal to the Supreme Court which is going to be heard on 18-19 February 2019. 
 

Asbestos in schools

Always an emotive topic, we were pleased to hear that there has been some progress regarding asbestos in schools. The Department of Education is seeking assurances that asbestos in schools is being identified and managed appropriately. There is a newly appointed Chief Inspector responsible for education at the Health & Safety Executive who has instigated the undertaking of proactive inspections in 50 schools across England, Wales and Scotland. We were told that the chosen schools will not get more than a week’s notice of the inspection and the process is not intended to be a paper exercise with inspectors tasked with spending a whole day looking at the relevant building. There is still, of course, a long way to go, but we see this as a really positive development.
 
For more information about any of the above applications and wards please contact our mesothelioma and asbestos claims at idclaims@boyesturner.com .

I was exposed to asbestos by Turner & Newall - can I make a claim?

Turner & Newall were a leading manufacturer of asbestos products. They were based in Manchester but operated all over the country.  

The manufacture and use of asbestos products is now banned in the UK. Turner & Newall went into administration in 2001 but their use of asbestos has left a very sad legacy. Former workers and their families have contracted asbestos-related diseases, as have others who lived in close proximity to Turner & Newall factories. In many cases, the disease is terminal.

Turner & Newall concealed the dangers of asbestos

The danger to Turner & Newall workers was apparent as early as 1924, after the death of Nellie Kershaw, a worker at their Rochdale factory. At the inquest into her death, Dr William Edmund Cooke testified that his examination of the lungs showed extensive fibrosis in which were visible "particles of mineral matter... of various shapes, but the large majority have sharp angles”. Cooke concluded that they "originated from asbestos and were, beyond a reasonable doubt, the primary cause of the fibrosis of the lungs and therefore of death".

Despite this, the company denied liability and refused to pay any compensation to her family. Although Turner & Newall were aware of the dangers, they continued to manufacture and use asbestos products into the 1990s.  

Over the years, the lengths the company went to in order to conceal the dangers of asbestos are shocking. In 1955, an academic named Richard Doll completed an epidemiological study in Rochdale, home of the factory where Nellie Kershaw worked. This established a link between asbestos exposure and lung cancer. After trying to prevent him from publishing the findings, Turner & Newall then persuaded its own scientist, Dr John Knox, to draft a paper discrediting Doll’s work.  

They were also assisted by Cyril Smith, the Rochdale MP. In 1981, he wrote to Sydney Marks, head of personnel at Turner & Newall, informing him that the House of Commons were to debate European regulations on asbestos and asking him what he would like him to say in the debate. The draft sent to him by Turner & Newall is almost identical to the speech delivered by Smith, which argued that there should be less regulation and that the public were not at risk.  

The company went into administration in 2001. Does this mean that former Turner & Newall workers and other people affected by Turner & Newall’s practises are unable to claim compensation if they are diagnosed with an asbestos-related disease?

The Turner & Newall scheme

A trust fund has been set up to process and pay all valid asbestos disease claims for which Turner & Newall companies have legal responsibility.  This means that, if you have an asbestos-related disease as a result of being exposed to asbestos by a Turner & Newall company, you may be eligible to claim compensation through the Turner & Newall scheme.

The process is different from asbestos disease claims against other companies, however, Boyes Turner’s specialist asbestos disease lawyers have extensive experience of dealing with such claims and can guide you through the application process.  We have made claims on behalf of people who worked for various Turner & Newall companies, including:

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

Managing Asbestos in the Workplace

The Health and Safety at Work Act 1974 requires employers to conduct their work in such a way that their employees will not be exposed to health and safety risks. They must also provide information about their workplace which might affect their health and safety. A key element of this duty is to ensure that any asbestos-containing materials in the workplace are managed effectively so that they do not put the safety of employees at risk. 

Why do employers need to manage asbestos?

Asbestos use in the construction and refurbishment of buildings is now illegal in the UK. However, it was extensively used in the 20th century and, as a result, any buildings built before 2000 may still contain asbestos. 

If asbestos is disturbed or damaged, releasing fibres into the air, these fibres may be inhaled, leading to asbestos-related diseases, including:

Workers who carry out building maintenance and repair are particularly at risk. 

Past exposure to asbestos currently kills around 4500 people a year, so it is crucial that employers protect their employees from the risk of these life-threatening diseases by ensuring that any asbestos in the workplace is managed properly.

What do employers need to do?

The duty to manage asbestos is detailed in the Control of Asbestos Regulations 2012. Employers need to manage the risks by:

  • Finding out if there is asbestos in the premises and, if so, its location and condition
  • Maintaining an up-to-date record of the location and condition of any asbestos-containing materials on the premises
  • Assessing the risk from the material
  • Preparing a plan to manage the risk from the material
  • Taking steps needed to put the plan into action
  • Reviewing and monitoring the plan and the arrangements made to put it in place
  • Setting up a system for reporting on the location and the material to anyone who might work on it or disturb it

What should happen if there is asbestos in the building that represents a risk to employees?

Depending on its condition, some damaged asbestos can be dealt with by repairing it and either sealing it or enclosing it to prevent further damage. Once it has been dealt with, the area must be marked, and it must be included in the employer’s record of asbestos locations. 

If the asbestos cannot easily be repaired and protected, it will need to be removed. The work must be carried out by someone trained and competent to carry out the task, usually an HSE licensed contractor. 

What should happen if the asbestos in the building does not represent a risk?

If any asbestos-containing materials in the building are in good condition and the employer decides that it is safe to leave it in place, they must keep a record of the location and the condition it is in and ensure that this is kept up to date.

They must also ensure that everyone who needs to know about the asbestos is told about its presence. It is good practice to label the asbestos-containing materials with an asbestos warning sign.

Thereafter, it is important to continue to manage the risks from asbestos left in the building. Employers must regularly reinspect any asbestos-containing materials on the premises and keep their records up to date. They must also regularly check that the arrangements they have put in place to control the risks are working effectively.

Detailed information can be found on the HSE website: http://www.hse.gov.uk/asbestos/duty.htm

Boyes Turner’s asbestos-related disease team are specialists in recovering compensation for individuals and bereaved families affected by mesothelioma, lung cancer and other diseases caused by exposure to asbestos.

If you or a loved one have been affected by an asbestos-related disease and you would like to find out more about making a claim, contact us by email at idclaims@boyesturner.com

What is asbestos related lung cancer?

We often get asked about asbestos-related lung cancer, what it is, can they claim even though they smoked? Because of this, we have tried to answer some of our most commonly asked questions! 

Q. What is asbestos-related lung cancer?

Apart from mesothelioma, there is no particular type of lung cancer which is exclusively caused by exposure to asbestos dust. Both non-small cell lung cancer and small cell lung cancer can be caused by exposure to asbestos dust.

Q. Can I succeed with a claim for asbestos-related lung cancer even though I smoked?

Even if you were a smoker, it is possible that asbestos exposure has contributed to your lung cancer. This is because of the risk of developing lung cancer increases in direct proportion to the level of your exposure to asbestos dust.

There is no clinical means of distinguishing between lung cancer caused by asbestos and lung cancer caused by smoking. However, there is clear evidence that if you have smoked and been exposed to asbestos dust your risk of lung cancer is significantly increased.

Q. Do I need to have asbestosis to have asbestos-related lung cancer?

The presence of other asbestos-related diseases such as asbestosis, asbestos-related pleural plaques or asbestos-related diffuse pleural thickening can indicate that the lung cancer has been caused by exposure to asbestos dust.

Historically, it was presumed that lung cancer could not be caused by asbestos exposure unless asbestosis was also present. However, research has confirmed that asbestos-related lung cancer can occur without the presence of asbestosis.

Q. Is there a minimum level of exposure to asbestos dust before asbestos-related lung cancer can be diagnosed?

Whether or not your lung cancer can be attributed to asbestos exposure will also depend upon the level of your exposure to asbestos dust. In order to pursue a claim for compensation for asbestos-related lung cancer you must be able to show very heavy exposure to asbestos dust for a short period of time, or moderate exposure to asbestos dust for a long period of time.

Q. How much compensation will I receive for asbestos-related lung cancer?

The amount of compensation awarded for asbestos-related lung cancer will depend upon the individual circumstances of the case. However, general damages for pain, suffering and loss of amenity are generally awarded at between £61,410 and £85,340 (JC Guidelines July 2018). On top of this, a claim can also be made for care and assistance, travel, loss of income and any other losses that have been incurred as a result of the lung cancer.

You should bear in mind that if you have also been a smoker, there may be a deduction to your compensation to reflect the fact that your smoking has also contributed to the lung cancer.

If you would like to talk to one of our specialist solicitors about the possibility of bringing a claim, with no obligations to take matters further then email the team at idclaims@boyesturner.com.

Mesothelioma asbestos and the Johnson & Johnson baby powder cases

Over the past couple of months Johnson & Johnson, a company synonymous with baby skin care products, with tag lines such as “clinically proven to be as mild as water”, have come under significant scrutiny following a $117m award of compensation for mesothelioma, after it was revealed through trial documentation that Johnson’s talc baby powder contained asbestos.

The decision to award damages in this case was made by a jury in New Brunswick, New Jersey. The claim was made against the company Johnson & Johnson Consumer Inc, together with Imerys Talc America Inc. According to reports, following consideration of confidential documentation from Johnsons’ company documents, the jury awarded the claimant $37m in compensation for his asbestos cancer mesothelioma. They also awarded $80m in punitive damages.  Punitive damages are awarded where compensation alone is seen to be inadequate and as a deterrent for any similar future practice by the company. 

The case in question was Steven and Kendra Lanzo v Johnson & Johnson Consumer Inc and Imerys Talc America Inc.  The claimants were represented by American mesothelioma law firm, Kazan Law, who advocate for the rights of asbestos victims. 

During the trial, confidential company documents were disclosed which revealed that the companies were aware that Johnson’s talc baby powder contained asbestos. Consequently, the jury found that Johnson & Johnson should stop selling Johnson’s talc baby powder and should replace the talc with cornstarch. 

The documents showed that Johnson & Johnson were aware since the 1960s that the talc used in its baby powder contained asbestos and that it could cause cancer. 

The talcum powder itself is not considered to be the cause of the mesothelioma, but the fact that it is contaminated with amphibole asbestos tremolite. Talcum powder and tremolite are substances created by the same geologic process, therefore, the materials are frequently found in the same areas.

The Johnson’s Baby UK website reassures its consumers that their baby powder does not contain asbestos. The website states, “Johnson’s® baby powder does not contain asbestos, a substance classified as cancer causing. The talc used in all our global production is carefully selected and processed to be asbestos free, which is confirmed by regular testing to confirm purity. Like all our products, Johnson’s baby powder contains only ingredients that have been fully evaluated by scientific and medical experts to ensure they are safe to use”. 

The link between mesothelioma and talcum powder remains controversial and Johnson & Johnson are expected to appeal the decision. The company has previously come under scrutiny for links between ovarian cancer and talcum powder, although large studies such as the Nurses’ Health Study (2010) and the Women’s Health Initiative Observational Cohort (2014) have found no causal link between talcum powder and ovarian cancer. However, these studies did not stop a jury in Missouri yesterday awarding $4.7 bn in damages to 22 women who alleged they had developed ovarian cancer after using their baby powder. Johnson & Johnson is set to appeal the decision.

Talcum powder is a controversial product and many midwives do not recommend the use of talcum powder, owing to the risk that it may be contributing to the growing number of children diagnosed with asthma. 

We will watch out for further developments in the asbestos talcum powder cases and await with interest the outcome of any appeal and any further documentation which Johnson & Johnson may produce.

Whether or not talcum powder poses an asbestos risk and a risk of mesothelioma appears from, the evidence, to be uncertain. What is clear is that talc can be contaminated with tremolite as a consequence of the natural process of its creation but the company maintains its position that the talc used in these products is asbestos free. 

What is certain is that the prolific use of asbestos in the past means that this is unlikely to be the last consumer product that we encounter which used to contain asbestos.

If you or a family member are suffering from mesothelioma or other asbestos-related disease, email us at IDclaims@boyesturner.com for a free initial conversation. 

Asbestos Court Users Meeting

On 13 June 2018, the High Court held an Asbestos Court Users Meeting. The meeting was chaired by Senior Master Fontaine with significant contributions from Master Davison, Master Eastman, Master McCloud, Master Thornett and Master Gidden.

Asbestos disease claims

When handling asbestos disease claims, we are fortunate to have dedicated Masters who oversee the swift progression of each and every case. Mesothelioma claims are prioritised and, using the dedicated asbestos list at the High Court, we are often able to progress them to trial within the lifetime of our mesothelioma clients.

Another way in which the High Court supports the needs of asbestos-related disease sufferers is by encouraging the parties’ legal representatives to make use of the ‘show cause’ procedure. By doing so, the court can identify swiftly those cases where liability is in dispute or where judgment on liability can be entered and the claim progressed quickly to an assessment of damages hearing.

The Masters

The Masters highlighted their expectation that by the first case management conference both the claimant and defendant must know where they stand in relation to a show cause hearing. If there is a simple, short point in dispute then this can be dealt with at the first 30 minute hearing. More complicated issues will require a longer hearing at a later date and the claimant and defendant are expected to provide for this in their directions.

The Masters clarified that all asbestos cases (not only mesothelioma claims) are appropriate for the show cause procedure, recognising the importance of the swift progression of any claim where an asbestos disease has been diagnosed. 

The Masters further demonstrated their commitment to the swift progress of these claims by confirming that, in the absence of compelling argument from any party for the need for cost budgeting, this is regarded as unnecessary in asbestos claims, given the potential for additional delay.

They emphasised the importance of the appointment of an expert mesothelioma and asbestos claims solicitor in these cases. Expert mesothelioma and asbestos claims solicitors understand the process and the procedure within the High Court for progressing asbestos disease claims. By instructing specialist experts and solicitors who follow these procedures, mesothelioma victims are more likely to be spared unnecessary delay in receiving their compensation. 

The Boyes Turner team

Boyes Turner’s industrial disease team are experts in asbestos-related disease cases and have an outstanding record of securing high value, lifetime, and provisional damages settlements, often succeeding where other less experienced lawyers have been unable to act.

If you or a family member are suffering from mesothelioma or other asbestos-related disease, contact is by email at IDclaims@boyesturner.com for a free initial conversation. 

Mesothelioma and Lung Cancer Study Day 2018

On 13 September 2018 Boyes Turner’s mesothelioma and asbestos claims solicitors will be hosting their annual Mesothelioma and Lung Cancer Study Day at their offices in Reading.

The free event 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, those with mesothelioma and lung cancer.

The day will be chaired by Kim Smerdon, Partner and head of the mesothelioma and asbestos claims team, assisted by Annabelle Neilson, senior associate – solicitor.

The delegates for this year are:

  • Mr John Pilling, Consultant Thoracic Surgeon, Guy's and St Thomas' NHS Foundation Trust 
  • Natasha Bruce-Jones, Senior Occupational Therapist, Plexus Healthcare
  • Dr Jeremy Steele,  Consultant Oncologist, Barts and the London NHS Trust
  • Harry Steinberg QC, Barrister, 12 Kings Bench Walk
  • Simon Bolton, Mesothelioma UK and Lung Cancer Nurse Specialist, Harrogate and District NHS Trust
  • Mesothelioma UK representative
  • Marie Eaton, Lung Cancer Nurse Specialist, The Christie NHS Foundation Trust
  • Laura Magson, Senior associate - solicitor, Boyes Turner

Talk titles to be announced closer to the event

Last year’s study day was well received by all attendees:

“Very insightful” “Inspirational” “Very informative”

“Very well organised”

“A very good insightful day, very well put together”

“Great day, felt looked after and now more informed, thank you”

“Excellent facilities” 

To book your place please click here.

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 by 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 by 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 by email IDClaims@boyesturner.com for a free initial discussion.

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