Asbestos-Related Illness

24 to 31 October 2013

Prepared by

Malcolm Keen and David Kidman

Contents

Case of the week Quantum Procedure Press

Contact

To request cases or the full text of articles please contact:

Helen Cafferata National Information Services Manager [email protected]

Case of the week

(1) The claimant (the deceased’s widow) alleged that the deceased had developed asbestosis and lung cancer as a result of exposure to asbestos whilst employed as a steel erector between 1973 and 1981. The deceased died in January 2009. He had instructed solicitors in May 2008. The deceased had been diagnosed with pulmonary fibrosis.

The claimant argued that the deceased had asbestosis – pulmonary fibrosis caused by asbestos exposure. The defendants argued that the deceased had idiopathic pulmonary fibrosis – pulmonary fibrosis in which there is no known cause. The pathologist who performed the post mortem reported finding ‘asbestos fibres’ in lung tissue samples (though he probably meant ‘asbestos bodies’).

The Coroner’s Office wrote to the claimant in November 2010 asking what should be done with the lung tissue samples. The claimant telephoned the Coroner’s Office and was told that samples were not normally retained. She agreed that the samples should be destroyed. The defendants’

1 histologist concluded that the assessment of the deceased’s lifetime exposure to asbestos (relevant to causation) was severely hampered by the lack of lung tissue samples for evaluation.

The defendants applied to strike out the claim as an abuse of process under CPR 3.4(2)(b). The defendants submitted that both the claimant and her solicitors were at fault in respect of destruction of the tissue samples, and that the absence of the lung tissue samples deprived the defendants of the opportunity to adduce objective evidence in support of their case.

Findings

Swift J dismissed the defendants’ application. She did not consider that there had been any culpable behaviour on the part of the claimant or her solicitors. The claimant knew of no reason why she should not follow the ‘usual practice’ and authorise the disposal of the lung tissue samples. Swift J regarded the suggestion that the claimant should have recognised that the tissue samples were required for the purposes of her claim as wholly unrealistic.

Swift J did not consider that the claimant’s solicitors could be criticised for failing to anticipate the situation that arose. The Coroner’s Office was aware of their involvement in the case. The inquest had resulted in a verdict of death due to industrial disease. The post mortem report referred to asbestos exposure. It was reasonable for the solicitors to assume that the Coroner’s Office would not dispose of the tissue samples without seeking their prior agreement or advising the claimant to do so. There was no behaviour on the part of the claimant or her solicitors that could properly be characterised as an abuse of process. But Swift J observed:

“ With hindsight, it is of course easy to say that [the claimant’s solicitors] should have made clear to the Coroner’s Office and/or the claimant that the tissue samples should be preserved unless and until they advised otherwise.”

Whilst the lung tissue samples could have been of value in certain respects, other evidence, such as that of lay and expert witnesses was available. The available evidence would form part of the decision-making process and would enable the judge to reach a satisfactory conclusion on causation. Despite the destruction of the lung tissue samples it was ‘perfectly possible for a fair trial of the claimant’s claim to take place’. Swift J also did not consider it just, necessary or proportionate to deprive the claimant of the opportunity to have her claim heard.

Comment from Nick Pargeter

Matthews was decided in the claimant’s favour for two broad reasons:

(1) There was no fault on the part of the claimant or her solicitors. So it would not be fair to strike out her claim. (2) Despite the destruction of the lung tissue samples there was still other evidence available to decide causation. A fair trial remained possible.

Turning these reasons around, Matthews assists defendants in asbestosis and asbestos-related lung cancer cases in deciding when a strike-out application is appropriate. So where the claimant or his solicitors are at fault, and there is little other evidence of the claimant’s cumulative exposure to asbestos, a strike-out application is likely to be appropriate. This is also shown by Swift J’s distinguishing of Matthews from Weaver v Contract Services Division Ltd, unreported, High Court, 3 September 2009. In Weaver, where the issue was also whether or not the deceased’s pulmonary fibrosis was caused by asbestos, and which involved the same pathologist, the defendant’s strike-out application was successful.

In Weaver, the claimant’s solicitor told the deceased’s relatives that the lung tissue samples did not need to be retained, and the Senior Master stated that the conduct was “worthy of sanction.”

2 In addition, Matthews provides general practical assistance. Swift J explained that she proposed to send a copy of the judgment to the Chief Coroner with a request that he considers advising all Coroners that, in cases where there has been a verdict that a contributory cause of death was industrial disease, any communication to the deceased’s family about the disposal of histological samples should contain advice that, if a claim in respect of the deceased’s death is pending, they should consult their solicitor before giving authority for disposal.

Swift J also stated that it would be good practice for solicitors in fatal asbestos claims to advise both their clients and the relevant Coroner’s Office that disposal of histological samples should not be undertaken without confirmation that the samples are not required for the purposes of the claim.

Matthews v Herbert Collins and Others (2013) See Lawtel document no: AC0138598

Quantum

(2) JC Guidelines: Chapter 6 PSLA: £65,000 Injury: Serious obstetric injury

During the delivery of her first child, in December 2008, the claimant, whilst under the care of the defendant, a consultant obstetrician, suffered a serious obstetric injury. In the course of her labour, the defendant performed a mid-line episiotomy which caused a third degree tear affecting both her internal and external anal sphincters. The repair made was insufficient, and the defendant failed to inform the claimant of the injury or the repair. The claimant suffered significant obstetric trauma and a total loss of her perineum.

On examination it was found that there was virtually no sphincter between the anal canal and the vagina. In March 2009, the claimant underwent sphincter overlap repair and reconstruction of her perineum. The operation was successful in separating the vagina and anal canal. In the immediate aftermath of the surgery she suffered excruciating pain for two to three weeks and was bedridden for around five weeks. She was then referred for biofeedback treatment commencing in June 2009, which did bring about some improvement. Despite this, the claimant was left with significant on-going symptoms which caused her embarrassment, inconvenience and distress, and which have had a significant impact upon her life and career trajectory.

The trial concerned quantum only. After the experts had given their evidence, the parties agreed the figures for pain, suffering and loss of amenity (£65,000), interest on general damages (£2,600) and for future medical treatment (£22,000 for future surgical costs and £25,400 for future psychiatric care). Prior to trial they had also agreed a total figure of £5,500 for all heads of past loss besides loss of earnings, and the interest thereon.

So far as loss of future earnings were concerned, the parties agreed that the multiplier before contingencies was 14.52 for loss to age 55. Table C gave a discount of 0.89. The correct calculation was £82,625 x 14.52 x 0.89 which equalled £1,067,746.

Davison v Leitch (2013) See Lawtel document no: AC0138849

3 (3) JC Guidelines: Chapter 7(A) and (B) PSLA: £4,600 (out of court settlement) Injury: Soft tissue injury to neck and back

The claimant, suffered soft tissue injuries to his neck and back following a road traffic accident. He suffered neck pain for two to three weeks. He was off work for 10 weeks, and required help with household tasks and shopping for eight weeks.

Eyre v W T Hall & Sons (2013) See Lawtel document no: AM0202290

(4) JC Guidelines: Chapter 9(A)(f)(iv) PSLA: £1,250 (out of court settlement) Injury: Unnecessary extraction of tooth

The claimant attended the dentist complaining of swelling and pain to the left side of his mouth. The treatment options were root canal therapy or extraction. He opted for root canal therapy. However, treatment was unsuccessful resulting in removal of the tooth.

PH v CW (a dentist) (2013) See Lawtel document no: AM0202295

Procedure

(5) The claim was issued on 28 March 2013. Under CPR 7.5 it had to be served by midnight on 29 July 2013. The claimant served the claim form in time (on 26 July 2013). However, the particulars of claim were served on 30 July, sixteen hours after the deadline of midnight on 29 July 2013. The two issues were: (1) did the claimant serve the particulars in time; and (2) if not, should the claimant be granted relief from sanctions.

Findings

(1) The particulars were not served in time. Like the claim form, particulars had to be served within four months from the date of issue. (2) Simon J considered the new approach to CPR Rule 3.9. Simon J noted that Lord Dyson MR had said in a seminar in March 2013 that:

“ The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations.”

In respect of late service of the particulars of claim, Simon J considered that some of the criteria in the old version of Rule 3.9 ‘may be relevant to the exercise of the court’s discretion, although they should plainly not be applied in a formulaic way’. In deciding to grant relief and allow service of the Particulars of Claim, Simon J, amongst other things, took into account that it may be necessary to form an overall view of the merits when considering the issue of proportionality, and that the application for relief was made reasonably promptly, the failure to comply with the rules was not intentional, there had been no previous infraction of the rules and there was a cogent explanation for what had happened.

Kesabo & 11 Ors v (1) African Barrick Gold plc (2) North Mara Gold Mine Ltd (2013) See Lawtel document no: AC0138937

4 Press

(6) Civil litigation reform Considers the response of the personal injury market to the Jackson reforms. See SJ, 29/10/2013, p18

(7) Lower value cases after Jackson Reflects on the impact of the Jackson reforms on personal injury barristers. See SJ, 29/10/2013, pxi

(8) Costs budgeting Guidance on case planning, including the preparation of mock budgets, in order to determine whether a firm has sufficient in-house expertise to produce accurate costs budgets. See SJ, 29/10/2013, p27

(9) Deferral of increase in small claims track threshold Comments on the Ministry of Justice’s decision to delay an increase to the small claims threshold. See Post Magazine, 31/10/2013, p4

(10) Court reform in Scotland Reflects on responses to the consultation on the draft Court Reform (Scotland) Bill, commenting on the proposals to create a specialist personal injury sheriff court and limit use of the Court of Session to claims worth more than £150,000. See Post Magazine, 31/10/2013, p12

(11) Motor developments Comments on issues relating to motor insurance including falling motor rates, the announcement that independent medical panels will be introduced from next year to assess whiplash claims, the impact of the Legal Aid, Sentencing and Punishment of Offenders Reforms on the claims portal, and the effect of the referral fee ban on claims management companies and personal motor rates. See Insurance Times, 30/10/2013, p12 and 14

(12) State of play A review of legislative developments relating to occupational health and safety over the last six months. See HSB, November 2013, p7

(13) Owners of dogs who kill could face 14 years in prison The government is proposing to increase the maximum penalties for owners who dogs are dangerously out of control following a recent consultation. See Defra press release, 29/10/2013 or online

(14) Fall in workplace major injuries Figures published by the Health and Safety Executive show an 11% drop in major injuries between April 2012 and March 2013 compared to the previous year. See HSE press release, 30/10/2013 or online

(15) Man paralysed in fuel tank explosion A firm was fined £66,000 and ordered to pay prosecution costs of £25,000 after a man suffered injuries in an explosion. While he was cleaning the inside of a 20,000 litre fuel tank with a highly flammable solvent he pulled the plug of a lamp from its socket because it was getting too hot, causing a spark to ignite the fumes and surround him with flames. See HSE press release, 29/10/2013 or online

5 (16) Building company fined A building company was fined £6,000 and ordered to pay £4,000 in costs after a labourer suffered multiple leg fractures in a fall when a newly-built first floor collapsed under the weight of concrete blocks weighing 1.6 tonnes. See HSE press release, 30/10/2013 or online

(17) Council and firm prosecuted for asbestos failings A council was fined £10,000 and ordered to pay costs of £1,200 while a decorating firm was fined £5,000 with £500 in costs after workers were exposed to asbestos fibres during refurbishment work at a community centre. See HSE press release, 31/10/2013 or online

(18) Car salvage firm fined over burns A firm was fined £40,000 and ordered to pay £25,000 in costs after a car mechanic suffered severe burns while removing fuel from underneath a van. The investigation concluded that the most likely cause of the fire was drained fuel being set alight by a spark from an electric drill being used to make a hole in the tank to allow the fuel to drain into an open container, or from an extension lead in the pit. See HSE press release, 31/10/2013 or online

(19) Illegal gas work A plumbing company was fined £300 and ordered to pay costs of £525 whilst a plumber was given a three year conditional discharge and ordered to pay costs of £600 after he repeatedly carried out gas fitting work whilst unqualified and unregistered. See HSE press release, 01/11/2013 or online

(20) Timber firm fined after guillotine severs hand A timber firm was fined £5,000 and ordered to pay £5,000 towards the cost of the prosecution after a worker’s hand was severed by a guillotine. He was feeding pieces of wood into the diesel powered machine using his right hand to push wood under the blade and his left hand to operate the lever, and accidently pulled down the lever before he had removed his right hand. See HSE press release, 01/11/2013 or online

(21) Care home fined following death of resident A healthcare firm was fined was fined £175,000 and ordered to pay costs of £22,961 for safety failings after a resident suffering from dementia fell to his death from a first floor window of a nursing home. See HSE press release, 01/11/2013 or online

HSB - HEALTH AND SAFETY BULLETIN JPIL - JOURNAL OF PERSONAL INJURY LAW LSG - LAW SOCIETY GAZETTE NLJ - NEW LAW JOURNAL SJ - SOLICITORS JOURNAL TLR - TIMES LAW REPORT OHR - OCCUPATIONAL HEALTH REVIEW

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