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Coroners and Inquests: What do I need to know?

Information for bereaved family members of those with asbestos related illnesses

We act for bereaved families who have often lost a loved one due to asbestos related illness, such as mesothelioma or lung cancer.

What is an inquest?

An inquest is a judicial enquiry to find the answers to a set of questions:

  • Who has died?
  • How did the death occur?
  • What was medical cause of death?
  • When did the death occur?
  • Where did the person die?

The cause of death is usually the focus of the inquest. The inquest is not intended to attribute blame or responsibility for the death of a loved one, nor does it deal with any criminal liability.

What does the Coroner do?

Coroners are independent judicial officers. They are responsible for establishing why a person has died and the circumstances in which the death took place. The Coroner’s involvement is unrelated to any claim for compensation, however, a Coroner’s verdict of “industrial disease” as the cause of death can be used to support a claim. Coroners are responsible for investigating unnatural, violent or sudden deaths of an unknown cause. These include deaths following an industrial disease such as mesothelioma, lung cancer and asbestosis.

Should I report a death to the Coroner?

If a loved one dies from an asbestos-related illness, or there is concern that a death is in someway linked to asbestos, a request for investigation into the death will be carried out by a Coroner. The death is usually reported to the Coroner by the medical staff or GP treating the person who has died. If you suspect that the death was caused by an asbestos-related illness and you think that the death has not been reported to a Coroner, then we would recommend that you report the death to the Coroner yourself. This is particularly important if there is an ongoing claim for compensation, as the Coroner’s verdict and findings will become part of the evidence in a civil claim.

Will there be a post mortem?

A post mortem may be required to establish exactly how the deceased person died. We understand that the thought of a post mortem is unpleasant, but in many circumstances, Coroners can decide that a post mortem does not need to be carried out if a conclusive biopsy was taken during the person’s lifetime (for mesothelioma). In our experience the coroner’s officers are very sensitive and will keep you informed of the process so that the funeral or other service can be held in accordance with your wishes. The decision to hold a post mortem rests with the Coroner and the post mortem is performed by a pathologist. If a post mortem is necessary, it will usually be performed within a few days of someone passing away.  Small tissue samples are often taken during the post mortem for examination.

What happens to any samples taken during the post mortem examination?

The Coroner or Coroner’s Officer will ask you what you would like to do with the tissue samples once the investigation has been completed. We would urge anyone who has an ongoing claim for compensation or is considering one in the future to ask for the samples to be retained. It is extremely important that these tissues are not destroyed and we recommend that you ask for them to be retained as they may be needed for further analysis as they form part of the evidence required for a civil claim for compensation. If you have a civil claim in progress, we will write to the Coroner on your behalf to ensure that these tissues samples are preserved. In some cases, we instruct an independent pathologist to review the tissue samples to provide a report for the ongoing case. The defendants are also entitled to instruct their own expert and should not be deprived of the opportunity to do so by the lung samples being destroyed.

What happens after the post mortem?

Once the post mortem has been carried out, the Coroner releases the body for the funeral or cremation. All receipts for funeral expenses should be kept as they can be included in a compensation claim. After reading the pathologist’s report from the post mortem the Coroner will decide whether an inquest is required. In most cases involving asbestos, the Coroner will open and then adjourn (postpone) the inquest, providing details of the actual inquest dates once it has been set.

At this point, the Corner will also issue an interim death certificate. This certifies that the death has occurred and should enable all insurance claims to be processed. However, it cannot be used to register to death; that comes about when the final death certificate is issued after the inquest.

The interim death certificate will, however, allow the estate to be administered and if there is a will, you can apply for a Grant of Probate. If a will was not made, the next of kin may apply for a document called a Grant of Letters of Administration. Click here for advice from our wealth protection team who can help with the probate process.

Preparations for an inquest?

Once the inquest is opened by the Coroner, it could be a number of months or even years until the actual hearing takes place. Usually with asbestos-related claims, it takes place within a few months, but the length of the wait can vary by district. During the inquest hearing, the Coroner may ask witnesses to give evidence in person. The Coroner will also rely on medical reports and letters from treating physicians, GPs and other clinicians. If the deceased passed away in a hospice, records from the hospice could be read out at the inquest.

Before the inquest, the Coroner will direct whether or not a post mortem needs to be performed; obtain any medical records, letters or reports from hospitals, surgeries, care homes, hospices; obtain statements from any relevant witnesses. If the deceased gave us a lifetime statement then we will disclose the statement to the Coroner with the family’s permission.

If someone has passed away without making a statement or solicitors have not previously been instructed, the family may be asked to provide a summary of the deceased’s employment history and any likely asbestos exposure. The Coroner often reads out the statement and can ask the family questions. Please be reassured that the Coroner, Coroner’s officer and ushers are very sensitive and are used to dealing with people who have recently suffered a personal loss. We attend many inquests and are always pleased to see the sensitive way in which the staff approach the family during this very emotional time.

Will I have to read a statement out?

If you have provided a statement and you think that giving evidence at the inquest will be too difficult or distressing for you, then you should let the Coroner or Coroner’s officer know, as it may be possible to make arrangements for your statement to be read out on your behalf. We are also happy to liaise with the Coroner on your behalf. On the day of the inquest the witnesses providing evidence will be questioned by the Coroner. Either you or your representative will be able ask the witnesses questions. We often attend inquests and can provide you with any support and assistance needed, if necessary.

What conclusion will the Coroner reach?

At the end of the inquest the Coroner records what is now known as ‘the conclusion’ (previously known as a ‘verdict’). If the Coroner is satisfied that the death occurred as a result of asbestos exposure during employment, he/she may well record the conclusion as “industrial disease”. The Coroner is not able to attribute blame to any individual or company and cannot imply that there is any civil or criminal liability. The Coroner’s role is to consider the evidence heard to decide who the deceased was, where they died, when they died and what the cause of the death was. 

Aside from ‘industrial disease’, the following conclusions can also be used:

  • Accidental death – the cause of death was unnatural, but not unlawful; Misadventure – a very similar ‘verdict’ to ‘accidental death’, but the implication is that the deceased has taken a deliberate action that has then resulted in their own death;
  • Natural causes – the death was caused by the normal development of a natural illness or disease;
  • Suicide – the deceased has voluntarily and consciously acted to end their own life;
  • Neglect – a gross failure to provide the deceased with their basic needs such as food, drink, warmth and medicine. In order for the Coroner to reach this conclusion there must be a clear link between the gross failure and the death.
  • Unlawful killing – the deceased came about their death by murder, manslaughter, infanticide or through a significant driving offence;
  • Open verdict – the Coroner determines there is not enough evidence to return a conclusion. This ‘verdict’ is ideally only used as a last resort.

What is a pre-inquest review hearing?

The Coroner is allowed to hold a pre-inquest review (PIR) at any time during the course of an investigation and before an inquest. PIRs are usually held in more complex investigations where there is a need for issues to be aired prior to the inquest which cannot easily be dealt with by email. The purpose of PIR is to ensure that the inquest is managed effectively, efficiently and openly. Families and other participants are able to raise issues, particularly contentious issues on key topics so that surprises can be avoided. There is an agenda in advance of the PIR which is tailored to the individual case and includes issues to be raised by the Coroner at the PIR, such as: 

  • Identity of interested persons
  • Inquest
  • Whether a jury is required
  • Matters for further investigation
  • Provisional list of witnesses
  • Disclosure
  • Date of the next PIR hearing
  • Date of inquest
  • Length of inquest and venue for hearings.

Other agenda items may include:

  • Anonymity of witnesses
  • Special measures for witnesses (including video links and screens)
  • Public to be excluded for part of the inquest
  • Need for an interpreter

Will the media be present?

An inquest is a public hearing. The Coroner has produced a guidance note for Coroners and the media which can be seen here. Coroners encourage sensitivity and respect for privacy of the families of the deceased, but fair and accurate reporting of the proceedings is also necessary.

Notice of the final inquest hearing, including the date, time and place of the inquest is available to the public in advance and can be found on on the local authority website including the name of the Coroner and whether there will be a jury, the name and age of the deceased and the date and place of the deceased’s death The medical cause of death, circumstance of the death or the likely conclusion of the inquest is never included on any local authority website.

Where possible, any issues regarding the media (such as anonymity of the screening of witnesses or media restrictions) should be addressed in advance of the pre-inquest review.

All inquest hearings including pre-inquest review hearings must be recorded by the court and the Coroner keeps the recording.

The media may ask for access to documents referred to in any inquest proceedings. The request must come from a genuine journalist and the request must be for a properly journalistic purpose. The request must list precisely the documents sought and explain why they are required. The media is not entitled to see documents which are not referred to in court.

Is there an alternative verdict to the short form conclusions?

The Coroner has no obligation to use a short form conclusion. They can use a narrative conclusion setting out the circumstances of the death in a more detailed way based on the evidence that the Coroner has heard. If the deceased passed away due to mesothelioma, lung cancer or asbestosis, then the Coroner may well record a conclusion along the lines of “by exposure to asbestos fibres during the course of his occupation as a carpenter/plumber/lagger” and insert the conclusion of “industrial disease” on the inquisition form.

If the deceased’s cause of death was mesothelioma, but they were not exposed to asbestos during the course of employment, rather they were exposed during self-employment or perhaps from the washing of a family member’s overalls, the Coroner may decide to use a narrative verdict to express the very specific activities that brought them into contact with asbestos.

Will a jury be needed at an inquest?

In some circumstances, a jury will be used at an inquest, for example, if the death occurred whilst the person was in police custody or if the Coroner believes a jury is needed in the interests of the public. Juries are not normally used cases involving asbestos-related diseases.

If the Coroner does not record the death as “industrial disease” will I still have a claim?

You may still be able to make a successful claim for compensation. For example, where the deceased was a smoker and passed away due to lung cancer, exposure to asbestos is known to be more likely to cause lung cancer in a smoker than in someone who didn’t smoke. the risk of smoking and asbestos in relation to lung cancer are multiplicative. Civil claims for lung cancer are not straight forward, often relying on pathological and engineering evidence to succeed, and should be handled by specialist solicitors experienced in this type of claim. If your loved one passed away due to lung cancer and has a significant history of exposure to asbestos, during employment, we would advise you to contact specialist solicitors as soon as possible.

How can Boyes Turner help a bereaved family at an inquest?

Our asbestos disease specialists are experienced in representing bereaved families at inquests and are familiar with the inquest process.

 Sometimes we are instructed by someone when they are already very ill from mesothelioma, and they pass away during the course of their case. It may be necessary for us to attend the inquest with the bereaved family, particularly if the evidence is important for the case, but on other occasions, the Coroner may be satisfied with the documents that they have (including life time witness statements and pathology reports sent to them by us) and the inquest can be done ‘on the papers’ without the need for a hearing. In other cases we are contacted by the bereaved family for the first time when they need help with the inquest and we can either represent them at the inquest or assist with the preparation. 

If you are considering a potential claim now or might be in the future, it is important that specialist lawyers are notified about any inquest both to ensure that all available evidence is given to the Coroner including statements which will support any future claim relating to asbestos exposure. Ask experts in this field with extensive industry knowledge we can often obtain help gather essential evidence at this critical stage in any claim. Please do contact us for more information about this service.

Mesothelioma - the Stories of Hope and Inspiration

We often write about the sad stories of people who pass away from mesothelioma; of women like Nellie Kershawe, a mother who died from ‘pulmonary asbestosis’ in her early thirties as long ago as 1924. It is right and fitting that we should not forget those people and their journeys.

But what about the stories of positivity and hope? What about the people living now with mesothelioma or those who spent their lives making a difference by inspiring others to keep going? As shocking and sad as it is to see children and young adults diagnosed with mesothelioma, there are countless positive news stories which we can draw upon to offer hope to those who are living with and fighting this asbestos-related cancer.

Macie Greening – teenage inspiration

Macie Greening was just 14 years old when she was diagnosed with peritoneal mesothelioma in spring 2018. ‘Macie’s Army’ was swiftly formed by her friends and family to raise money for a family holiday to Florida. Macie’s family have now booked the holiday and will be going in a few months. Spurred on by Macie’s Army’s efforts, Macie has decided to continue fundraising to help children in a similar situation. Just humbling.

Macie is taking part in a clinical trial which is not usually available to children but the results are looking promising, with scans showing that the tumour as shrinking.  Long may this continue and how amazing it is that Macie is inspired to help others whilst undergoing her treatment. To donate to Macie’s fund please click here.

Mags Portman – leading from the front-line

A consultant in sexual health and HIV with a particular interest in the prevention of HIV, this mum to two boys was diagnosed with mesothelioma in 2017. She died in February 2019 at the age of 44. Mourned by the HIV and mesothelioma communities alike, Mags’ courage in sharing her own experience of mesothelioma raised awareness that modern day mesothelioma can no longer be regarded as “an old man’s disease” which will die out with the lives it extinguishes. Her premature passing was a war-cry to the medical and research community to rally all available resources to fight this terrible disease.

Mags shared her belief in the importance of research and the hope that clinical trials provide. She had some success with first line chemotherapy but, when her disease progressed following the second cycle, she began privately funded immunotherapy. She drew parallels between her own healing journey and that of her patients, who have been diagnosed with HIV - an entirely preventable disease, but one that has had greater funding for research over the years than mesothelioma. Whilst, as we know from her own writings, she went through the darkest of times, Mags continued to fly the flag about the importance of research and clinical trials, blogging about the pain and discomfort, but also the laughter, meals out and trips away with her beloved family.  We send our heartfelt condolences to Martin and their children at this difficult time.

Back in 2004 when I began working with mesothelioma patients, clinical trials were not on the radar.  It’s encouraging to see that mesothelioma research has come so far in a decade. Mesothelioma UK are a fantastic source of information about current clinical trials, which are developing constantly.

For more information click here and telephone Mesothelioma UK if you are interested in participating in any clinical trials to find out whether you could be a suitable candidate.

Mavis Nye – Mesowarrior!

“Mesowarrior” Mavis Nye probably needs little introduction; she and husband, Ray, have done so much to raise awareness of mesothelioma, clinical trials and the health and safety concerns about asbestos that still affect the UK. Diagnosed almost 10 years ago, Mavis continues to support mesothelioma sufferers and their families, travelling up and down the country between treatments to give presentations, attend industry events and support group meetings. Whilst continuing to live life to the fullest, she has set up the Mavis Nye Foundation, a charity which will provide research grants to fund clinical research into treatment for mesothelioma and other asbestos-related diseases. The first application process is open from January to 31 March 2019. For more information, and to apply for this grant, please click here. We are behind you Mavis!

Liam Bradley- cracking on with life

And if it’s a male role model you’re looking for, meet Liam Bradley. Diagnosed at 30 years old, Liam commented, “The first few months were a blur, always wondering if this would be my last Christmas or my last birthday but, as time went on, I learnt to basically stick two fingers up at the cancer. After the first six months or so, I became mentally much stronger. The main reason for that is my three-year-old daughter – I’m determined that nothing is going to stop me seeing her grow up.”

Liam challenged himself to raise £100,000 for Mesothelioma UK, by cycling from Nottingham to Alicante, a mere 100 miles a day! Completely committed to the charity, he also cycled to the patient and carer day at Mesothelioma UK’s event in October in Burton upon Trent. What an achievement and an inspiration!

For every inspirational story that is featured on social media or the local news, there are many more who are carrying out their inspirational yet humbling work away from the glare of the limelight.

There is no doubt about it; mesothelioma is a disease that devastates the lives of individuals and their families, but medicine is advancing, help is at hand and, as these courageous people have proven, where there’s hope there’s life, and there is always room for hope.

If you or a loved one have suffered from an asbestos-related disease and you would like to find out more about making a claim, contact the mesothelioma and asbestos claims team by email at idclaims@boyesturner.com.

Launch of new mesothelioma support group for Cumbria and Lancashire

Receiving a diagnosis of mesothelioma is undoubtedly one of the most heart-breaking things a patient can hear. Though mesothelioma is responsible for around 2,500 deaths per year, it is still for most people a relatively unknown cancer.

It is vitally important for patients to have access to support from professionals such as the expert Mesothelioma UK lung cancer nurses, advice on benefits and compensation and the support of other people in a similar situation to themselves. The support provided by asbestos disease support groups is invaluable in helping patients through what can be an incredibly difficult time.

Cumbria and Lancashire Asbestos Support Advice Group

It is wonderful to see a new advice centre for asbestos victims in Cumbria and Lancashire, CLASAG (Cumbria and Lancashire Asbestos Support Advice Group) which was launched on 21 January 2019.

Barrow-in-Furness is considered to be one of the areas in the UK where Mesothelioma deaths are higher than the national average and is therefore considered an area with significant numbers of Mesothelioma victims.

Barrow is no stranger to asbestos support. A support group was originally set up in 2006 by Bob Pointer. Bob volunteered in 2004 to take over as the Secretary of Barrow Trades Council with asbestos being his prime focus, as he considered that it was a serious local issue. He attended an asbestos seminar at the Abbey House Hotel which led him to network and later attend a union conference on the issue of asbestos. He became involved in two public meetings and launched the Barrow Asbestos Related Diseases Support Group (BARDS) in 2006 on the first ever Action Mesothelioma Day. BARDS was founded by Dr Helen Clayson and others. The support group later changed its name to CARDS (Cumbria Asbestos Related Disease Support). 

In an effort to re-organise the group and provide as much support as possible to those with Mesothelioma and other asbestos-related diseases in the local area, the Asbestos Forum UK and Mesothelioma UK assisted Bob to re-organise the group and the Blackpool-based charity Disability First stepped in to support and run the group. The result is the newly created CLASAG, which replaces CARDS.Having provided support for asbestos victims for over a decade, Bob will now be taking a step back and retiring from his involvement with the support group. At the launch of  CLASAG, Bob gave an emotional speech. Taking a step back from the support group is a significant decision for Bob who has been heavily involved in the support of asbestos victims in Cumbria and Lancashire for over a decade. 

The launch was supported by Mesothelioma UK, the UKs leading mesothelioma charity. Lorraine Creech, a specialist Mesothelioma UK lung cancer nurse spoke about the work of Mesothelioma UK.  Speeches were also given by Graham Dring from the Asbestos Forum UK and Rachel Minshull of Cancer Care. 

Asbestos support groups are invaluable to the communities they serve. CLASAG will be run by Disability First and will hold meetings on the third Monday of every month at the Barrow and District Disability Association. The support group will provide advice about welfare benefits and compensation at meetings and also through its home visiting service.

Local asbestos disease support groups

There are a number of asbestos disease support groups across the UK. It is wonderful to see those running the support groups dedicating so much time and energy to the asbestos cause. It is thanks to people like Bob that the dangers and knowledge of asbestos is more prevalent in the minds of the general public. It is so important for those with Mesothelioma and other asbestos diseases to have a community to fall back on

Asbestos Sub-Committee Meeting, House of Commons

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 .

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.

14th Edition Judicial College Guidelines published

The 14th Edition Judicial College (JC) Guidelines have now been published and these reveal increased recommended compensation awards for asbestos victims.

The JC Guidelines are a set of guidelines for the courts and lawyers to refer to when considering the level of compensation a personal injury victim should receive following an injury.

The JC Guidelines categorise injuries by severity, with categories ranging from something simple, such as a minor soft tissue injury right through a catastrophic injury such as a brain or serious spinal injury.

Included within the JC Guidelines are awards for asbestos related injuries.

The table below shows the old and new award brackets for various asbestos related injuries.

Condition:Old bracket:New bracket:
Mesothelioma£56,650 – £101,750£61,410 – £110,380
Lung cancer£56,650 – £78,650£61,410 – £85,340
Asbestosis and pleural thickening with a 1% – 10% respiratory disability£12,210 – £31,075£13,230 – £33,700
Asbestosis and pleural thickening with a 10%+ respiratory disability£31,075 – £85,580£33,700 – £92,820

Boyes Turner are pleased to see that the recommended level of compensation for each type of asbestos related injury award has increased.

The level of award an asbestos victim will receive within each bracket will depend on a number of factors to include:

1. The age of the victim.

2. The level of respiratory deficit suffered.

3. Whether specialist treatment or corrective surgery is required.

4. The length of suffering the person is expected to go through.

5. Whether the disease is fatal.

Boyes Turner are specialists in obtaining the maximum compensation for asbestos victims and have assisted hundreds of clients in obtaining justice in the past.

The true cost of not complying with asbestos health and safety law

On a regular basis the asbestos claims team at Boyes Turner read reports where building firms and contractors are prosecuted by the health and safety executive for either not complying with health and safety law at all, or where a lax approach to health and safety law has been adopted.

Health and Safety and asbestos

In 2017 alone cases have been reported where contractors have failed to compile asbestos surveys, where asbestos surveys have been ignored, where asbestos registers have not been made available to contractors and there was even a case where asbestos health and safety documents were forged by an asbestos analyst conducting asbestos health and safety surveys.

But what is the cost of this illegal approach to asbestos.

Prosecution

Firstly building and contracting firms face the risk of prosecution if they breach health and safety law.

The Health and Safety Executive (HSE) is one of the few government agencies other than the Crown Prosecution Service that has the power to bring prosecution proceedings in the United Kingdom.

In most cases HSE prosecutions will result in a fine.  The level of the fine will depend on the significance of the breaches in question, but in July 2017 three contractors working on a contract were fined £1.27 Million for breaches of health and safety law alone.  The level of this fine illustrates the seriousness attached to asbestos health and safety breaches by the HSE and the Courts. A link to the case report can be found here.

The HSE also has the power to serve improvement notices on contractors requiring better practices to be adopted.

If you would like advice on good asbestos health and safety practices you can visit the HSE website which has a range of resources including reference cards, guidance documents, FAQ’s, official forms and best practice advice to name a few. A link to the HSE website can be found here.

Brand damage

As per the above, HSE prosecutions are widely report in the local press, on line and on the HSE website.

Businesses that are prosecuted by the HSE face reputational damage which could have a long lasting effect on their business.

One example of brand damage could be that members of staff and contractors may no longer be willing to work for employers that are known to ignore the health and safety of its workers. This could create staffing problems to employers and in turn contracts may not be completed on time resulting in non-completion clause fines being enforced.

Another example of brand damage could be that main site contractors may be reluctant to employ the services of businesses that are known to breach health and safety law. If this were to occur business could face financial problems and run the risk of insolvency.

Businesses also face being under closer scrutiny from the HSE if they are known to have a poor asbestos health and safety history which could cause problems for the business in the future, even if they do improve their safe working practices.

Personal injury

Lastly, but most importantly businesses face the risk of causing irreversible personal injury to their employees, others working on site, their customers and even members of the public if they ignore asbestos health and safety law.

Asbestos diseases do not manifest immediately and typically diseases are suffered some 30 – 40 years after asbestos fibres are inhaled. It is perhaps for this reason that asbestos is sometimes disregarded as being highly dangerous as its effects are not immediately recognisable.

There are a range of asbestos diseases and each will result in pain, discomfort and respiratory disability. In diagnoses such as asbestos induced lung cancer or mesothelioma, the disease is fatal with victims having just a matter of months to live following their diagnosis.

The crucial true cost of asbestos health and safety breaches is therefore the damage inflicted upon those affected by the exposure to asbestos suffered as a result of the breaches. In most cases it is tradesmen working for building firms and contractors that are affected by asbestos health and safety law breaches.

All tradesmen go to work to earn an honest day’s pay so they can provide for their families and employers owe them both a legal and moral duty to ensure their health and safety in the workplace is protected.

Complying with asbestos health and safety law

Boyes Turner recommend that all companies ensure they are up to date with current health and safety law requirements regarding asbestos. If in doubt the HSE can provide advice and guidance and specialist asbestos contractors are also available to assist businesses with their health and safety duties. By complying with asbestos health and safety law you greatly reduce the risk of your employees becoming injured in the future as well as protecting your business.

The problem of asbestos related diseases and uninsured employers

Asbestos related conditions are known as ‘long tail’ diseases. That is to say, they manifest themselves several years after the exposure to asbestos took place. In some cases, the symptoms do not manifest themselves until 50 or even 60 years after inhaling the toxic fibres.

The problem of asbestos related diseases and uninsured employers

This can cause significant problems for claimants with asbestos diseases. It is quite commonplace for a claimant to have been exposed to asbestos by one of their former employers who have long since been dissolved by the time the claimant is suffering from an asbestos related disease.

Employers’ liability insurance

In this situation, they key question is whether or not the employer had employers’ liability insurance at the time the claimant was exposed to asbestos while in their employment. If insurance was in place, we can make an application to the companies court to restore the defunct company to the register of companies at Companies House. Once they have been restored, we can issue court proceedings against them and, in the event of a successful claim, the insurers will have to pay the claimant’s damages. This is a process that the industrial disease team at Boyes Turner are very familiar with and we have successfully resolved many claims of this nature.

The problem of asbestos related diseases and uninsured employers

However, if the claimant’s former employer is defunct and they did not have any insurance in place when the claimant worked there, this process is of no help to the claimant. There is no benefit in restoring the claimant’s former employer to the register of companies and issuing court proceedings against them if there are no insurers to pay out in the event of a successful claim.

Employers’ liability insurance was not compulsory until the Employers’ Liability (Compulsory Insurance) Act 1969 came into effect on 1 January 1972. As such, there were many employers who did not have insurance before this date and, since many people were exposed to asbestos by their employers in the 1950s and 1960s, this is a particular problem in asbestos disease cases.

In many cases, claimants are simply unable to claim as their previous employer is defunct and did not have any insurance, meaning there is no – one to pay any damages to the claimant.

‘Dose related’ diseases

Asbestosis, pleural scarring and asbestos-related cancer are ’dose-related’ diseases. This means that the more asbestos a person is exposed to, the higher the risk for developing these diseases. The usual approach in such cases is to apportion the damages on a time exposure basis. For example, if a claimant worked for one employer for 5 years and another employer for 5 years (and the levels of asbestos exposure were similar with each employer), each employer would be responsible for 50 per cent of the damages awarded to the claimant.

If a claimant has a dose related disease they may be grossly under – compensated. For example, they may have worked with asbestos for 10 years, but their employer was only insured for two of these (that is to say, 20 per cent of the time that the claimant was working with asbestos). In this situation, they would only receive 20 per cent of the true value of their claim. This is known as a ‘Holtby discount’ after the Court of Appeal’s decision in the case of Holtby v Brigham & Cowan (Hull) Ltd [2000].

Diffuse Mesothelioma Payment Scheme

Thankfully, there is now a scheme in place to compensate claimants who were exposed to asbestos by a defunct employer with no insurance and have gone on to contract mesothelioma. This is called the Diffuse Mesothelioma Payment Scheme and is funded by a levy on insurers. The industrial disease team at Boyes Turner have successfully made many claims under the Diffuse Mesothelioma Payment Scheme on behalf of claimants in this situation.

The problem of asbestos related diseases and uninsured employers

However, claimants in this situation who are suffering from lung cancer, asbestosis or pleural thickening are simply unable to claim.

The situation is different for people who are injured in road traffic accidents due to the negligence of an uninsured driver. In this scenario, the innocent driver is able to claim through the Motor Insurers’ Bureau, which is an insurer funded organisation in place to compensate victims of the acts of negligence by uninsured drivers. This would seem to be perfectly reasonable. If someone is injured, through no fault of their own, by an uninsured driver, it hardly seems fair for them to bear their losses themselves.

However, there are also many people who, through no fault of their own, are suffering from lung cancer, asbestosis or pleural thickening and are unable to claim compensation as they were exposed to asbestos by an uninsured employer.

The obvious solution would seem to be to extend the scope of the Diffuse Mesothelioma Scheme to claimants who are suffering from other asbestos related conditions. Unfortunately, there are no plans to do this at the moment which means that many innocent claimants will not be compensated.

The seven countries that refuse to acknowledge asbestos is a hazardous substance

In Rotterdam, on 10 September 1998, 165 countries adopted the Rotterdam Convention. This is a multilateral treaty to promote shared responsibilities in relation to the importation of hazardous chemicals. While it does not impose any import bans, the convention promotes the open exchange of information and calls on exporters of hazardous chemicals to use proper labelling, include directions on safe handling and inform purchasers of any known restrictions or bans.

It would therefore seem to be a no brainer to include asbestos on the convention list of hazardous substances.

There are six types of asbestos: amosite, crocidolite, tremolite, actinilite, anthophyllite and chrysotile. All six types of asbestos are carcinogenic, but only five of them appear on the list, with chrysotile being the exception.

While chrysotile is considered to be the least potent form of asbestos, it is still recognised as a cause of asbestos related diseases, such as mesothelioma, lung cancer, asbestosis, pleural thickening and pleural plaques.

Asbestos is a Hazardous substance

At the 2011 convention, the Canadian delegation refused to allow the addition of chrysotile to the Rotterdam Convention. This is perhaps unsurprising, given the fact that successive Canadian governments in the 1990s and 2000s continually downplayed the risks of chrysotile. They even part funded the Chrysotile Institute, which spent nearly 30 years promoting the use and sale of asbestos to the developing world.

Thankfully, the Canadian government stopped funding the Chrysotile Institute in May 2012 and it has since closed. This was followed in September 2012 by an announcement that the Canadian government would no longer oppose the inclusion of chrysotile in the convention.

They also ended their support for Canada’s last asbestos mine in Asbestos, Quebec, which we previously wrote about here. Thankfully, the mine has now closed.

However, chrysotile remains absent from the Rotterdam Convention. In 2017, 157 countries attended the conference, but the addition of chrysotile to the list was blocked by seven countries:

  • Russia
  • India
  • Kazakhstan
  • Kyrgyzstan
  • Zimbabwe
  • Belarus
  • Syria

Russia continues to mine and expert huge quantities of asbestos, something we previously wrote about here. Given the restrictions on asbestos use in many developed counties, more aggressive marketing of chrysotile has resulted in developing countries.Chrysotile mining hazardous

It is hard to understand how human life can be so recklessly disregarded in the pursuit of profits from the continued mining and sale of chrysotile. By blocking its inclusion in the Rotterdam Convention, it can only be assumed that the delegations from the relevant countries are attempting to prevent the dangers of chrysotile from being more widely publicised.

Boyes Turner believe that an international ban on asbestos cannot come soon enough. However, to block the open exchange of information on the dangers of chrysotile to purchasers really is indefensible.

The professions most likely to result in a case of mesothelioma

There are a number of ways someone can be exposed to asbestos including, when at work, when working in the vicinity of others using asbestos, when laundering clothes covered in asbestos dust, when living in the vicinity of an asbestos producing factory and when working or living in a building containing asbestos to name but a few.

In this article the professions most likely to be exposed to be exposed to asbestos are discussed.

Laggers

Lagging has been mixed and applied for many years to pipes, boilers, structural steelwork and furnaces etc to provide a heat containing covering to the item.

The lagging applied can be made up of a number of different materials to include fibre glass, foam and asbestos.

It is when people are mixing up and applying asbestos lagging that they are at most risk of suffering from an asbestos related disease such as diffuse pleural thickening, asbestosis, asbestos induced lung cancer or mesothelioma.

The application of asbestos lagging involved laggers pouring large bags of asbestos lagging powder in to a drum of water and then mixing the water and paste together to form a thick insulating paste which was then applied to a surface. The pouring of the lagging powder in to the drum of water caused large plumes of asbestos dust to be emitted in to the working environment which would land all over the lagger. The mixing of the lagging powder and water caused further asbestos dust to be kicked up in to the air.

The application of the asbestos paste to items is also highly dangerous.

Asbestos could also be sprayed in to place in a wet form once mixed which was also highly dangerous due to the amount of asbestos fibres that were sprayed in the air and that came raining down on the worker.

Professions most likely to result in mesothelioma

Lagging is one of the most dangerous asbestos professions and laggers are at a high risk of suffering from mesothelioma.

Plumbers and fitters

Plumbers and fitters often encountered asbestos lagging on site when removing old asbestos lagging so the pipes or boiler underneath could be worked on or when applying asbestos to new installations.

The removal of old asbestos lagging usually involved the worker hacking the old asbestos lagging off using a variety of tools such as hacksaws, hammers, crow bars and even their bare hands. This asbestos removal work released millions of asbestos fibres in to the workplace which would land all over the worker and surrounding work surfaces.

The worker would then clean up after their asbestos removal works using tools such as dustpans, brushes, brooms and shovels.  This caused the asbestos dust to be kicked up in to the air again.

professions most likely to result in a case of mesothelioma

When applying new asbestos lagging the worker would either mix asbestos lagging as per the above, or use pre-mixed asbestos putty such as “monkey muck” to pack out asbestos glands.

Asbestos string was also cut and used to seal glands and joints.  The use of asbestos string also released dangerous asbestos fibres in to the environment.

Carpenters

Carpenters often came in to contact when working on installations containing asbestos or when installing asbestos products such as asbestos containing insulation board or “asbestolux”.

professions most likely to result in a case of mesothelioma

Many places contain asbestos board which has been installed as ceiling boards, wall boards and in asbestos containing fire doors. Asbestos was used due to its fire retardant and acoustic properties.

Carpenters would encounter this asbestos when carrying out rip-outs, modifications and repairs to older properties.

Carpenters would also encounter asbestos when installing asbestos boards on site.

The carpenters would cut the asbestos boards using wood saws, pad saws and circular power saws. The asbestos boards then had there edges smoothed off using a plane. Holes were then drilled in to the boards to allow pipes to pass through them and for fixing purposes. All of these tasks released millions of asbestos fibres in to the working environment.

The carpenters would also have to clean up after themselves each day which caused further asbestos dust to be kicked up in to the air.

Boiler workers

Boiler workers would often encounter asbestos lagging on old boilers they were working on, when applying asbestos lagging to new boilers and when using monkey muck and asbestos string to seal glands on boilers.

professions most likely to result in a case of mesothelioma

 

Boiler workers suffered high exposure to asbestos on a regular basis due to the fact that boilers and their associated pipework carry extremely high temperature water and steam in pipes which needed to be insulated to contain the heat and to protect people from burns.

Electricians

Electricians were also exposed to asbestos when working on sites installing electrical installations where asbestos lagging was present or being applied.

Electricians also often worked in enclosed loft spaces where loose fill asbestos insulation was in the loft for insulating purposes.

Many electricians also installed asbestos insulated cables on immersion heaters and on boilers.

professions most likely to result in a case of mesothelioma

Electricians would also use pad saws to cut holes in asbestos boards for socket and switch boxes to be mounted on to.

Asbestos is also an insulating material so asbestos board was often cut to shape and secured to walls for fuse boards to be fitted on top of to provide an insulation barrier between the fuse board and the wall.

The above jobs exposed electricians to millions of asbestos fibres on a regular basis.

School teachers

Many schools in Great Britain contain asbestos on lagged pipe work, in ceiling and wall boards, in fire doors and in other places such as cupboards where asbestos boards were used for shelving.

Teachers over time would be exposed to millions of asbestos fibres when slamming doors which caused asbestos fibres to be released from the doors, walls and ceilings, when pinning children’s work to asbestos walls using drawing pins, when leaning against asbestos pipes and when putting things on and taking things off of asbestos shelves.

professions most likely to result in a case of mesothelioma

There have been hundreds of cases of mesothelioma involving teachers.

Vehicle mechanics

Many mechanical items contained asbestos materials. Examples of asbestos containing materials include brake discs, clutch pads and insulating materials in the engine compartment to name but a few.

professions most likely to result in a case of mesothelioma

Mechanics were exposed to high levels of asbestos dust when blowing out asbestos dust from wheel arches with high pressured air lines when changing the asbestos brakes, when removing old asbestos brake pads, when grinding, drilling and chamfering asbestos brake pads to fit a vehicle and when working on asbestos containing clutches.

As mechanics often worked in contained spaces such as within a wheel arch there asbestos exposure was high.

Artexers and plasterers

Artex and plaster often had asbestos mixed in to it as a bonding agent. Artexers and plasteres would mix asbestos based arte up in the same way that asbestos lagging was mixed exposing them to copious amounts of asbestos dust.

Typically artex and plaster mix contained around 3% asbestos.

Roofers

Many roofers were exposed to asbestos when installing asbestos based roofing tiles or when cutting “Big 6” asbestos corrugated roofing sheets to size and then fitting them.

Asbestos tiles would need to be cut to shape and size using hack saws.

Asbestos corrugated sheeting would need to be cut to shape and size using power saws and then drilled for fixing purposes.

The cutting and drilling of asbestos roofing materials caused copious amounts of asbestos dust to be released in to the air, especially when circular saws were used.

Other professions

Many more professions were exposed to asbestos on a regular basis to include shipbuilders, shiprepairers, emergency service workers, members of the armed forces and construction workers to name but a few.

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