Smokescreen

Medical experts need to be extremely careful when reporting on asbestos-linked illnesses. There are in particular two difficult issues for experts to consider: firstly, where the claimant has been working across borders in England and Scotland and develops pleural plaques; and secondly, where the claimant has a history of smoking and presents with lung cancer.

Asbestos time bomb

Asbestos-related disease is more important than ever, as there is likely to be an increase in claims over the next few years due to the 40-year incubation period between exposure and the development of symptoms. However, the amount of reported mesothelioma cases is still at a relatively low level of 2,037 in 2005 (Health and Safety Executive, https://www.hse.gov.uk/statistics/pdf/proj6801.pdf).

While there is likely to be an increase in the number of claims resulting from mesothelioma in the next six years, the amount of claims are likely to peak by 2015 to say 2,450 deaths (British Journal of Cancer, February 2005).

Pleural plaques '“ England and Wales v Scotland

Currently there is a cross-border divide on the subject of pleural plaques between Scotland and England and Wales, in that a claimant can recover damages in Scotland but not in England and Wales.

The issue of pleural plaques became very controversial due to the decision in Rothwell v Chemical & Insulating Co Ltd (Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; Topping v Benchtown Ltd (formerly Jones Bros Preston Ltd) [2007] UKHL 39; see Solicitors Journal, 151/40, 22 October 2007), when the lords ruled that, taking into account expert medical evidence, pleural plaques was not a compensatable condition as it did not in itself (save in a very small minority of cases where they were extensive) lead to other physical conditions confirmed by medical diagnosis.

Scottish claimants can now recover damages for pleural plaques following the Damages (Asbestos-Related Conditions) (Scotland) Act which came into force on 11 March 2009 to overturn the Rothwell decision; although a full-scale battle has ensued as the Association of British Insurers (ABI) has announced there will be a judicial review of the Scottish parliament's decision (see Solicitors Journal, 153/16, 28 April 2009), their argument being that plaques are symptomless, do not impact on health or lead to asbestos-related diseases. According to the ABI press release: 'The judicial review will argue that the Act a) contravenes Art.6 of the European Convention on Human Rights (ECHR), which states that everyone is entitled to a fair trial to determine their civil rights; b) contravenes protection of insurers' economic rights set out in the ECHR; and c) is inconsistent with common law grounds of rationality.'

In England claimants have been supported by APIL and Andrew Dismore, MP, who has sought to overturn the Rothwell ruling by introducing the familiar-sounding Damages (Asbestos-Related Conditions) Bill which will now be considered by a cross-party committee.

The government in England has commenced consultation on pleural plaques with a view to bringing it into line with Scotland, so there may be consistency in the future but we will have to wait and see.

In the meantime, this means that different considerations apply to a claimant who works in England and Wales, as opposed to one who works in Scotland, and one wonders whether the courts are going to have to consider the thorny preliminary issue of whether a claimant worked in Scotland or England, and which jurisdiction should apply.

When you consider that in the west of Scotland, about six per cent of male lung cancers are attributed to asbestos exposure associated with the ship-building industry, it is foreseeable that some workers in England could have been exposed in the west of Scotland.

In these circumstances, a claimant is likely to want to issue proceedings over the border in order to recover damages; but there will be less clear-cut examples, such as a Scottish worker being exposed in England, which will lead to a confusing and unsatisfactory state of affairs which could in future mean a case going to the European Court of Human Rights.

It therefore seems more important than ever for experts to consider carefully where the exposure has occurred, and leave it to the lawyers to argue whether liability arises.

Lung cancer

Lung cancer (the most common cancer in the world) resulted in around 46,000 deaths in the UK in 2005. It has been said that one person dies in the UK from lung cancer every 15 minutes, and that 90 per cent of lung cancer is caused by smoking, but what happens when there is also exposure to asbestos?

The number of people smoking 40 years ago was much higher (55 per cent of British men smoked in 1970 compared with 22 per cent in 2007) and it is therefore relatively common to have a claimant presenting with a history of smoking and asbestos exposure; so how do the experts unravel the causative effect of the two?

There is of course a well-known link between smoking and lung cancer, but unfortunately science is unable to definitively say whether the cause of the lung cancer is smoking or asbestos when both have occurred.

To make matters even harder, smoking and asbestos exposure can compound the situation because they effectively work together. For example:

• The risk of lung cancer is increased by a factor of 10.85 if you are a smoker and you have not been exposed to asbestos.
• If you are not a smoker but exposed to asbestos dust then there is an increased risk of 5.17 of getting lung cancer.
• If you smoke and you have also been exposed to asbestos dust then you have an increased risk of 53.24.

In 1997, 19 worldwide specialists met in Helsinki out of which was borne the Helsinki Criteria, which emphasises that the presence of asbestosis, while not being conclusive, is a criterion for the attribution of lung cancer to exposure to asbestos.

The lack of presence of asbestosis where the claimant has died from lung cancer has therefore meant claims have generally been unsuccessful, although the difficulty posed to experts, lawyers and the courts is perhaps highlighted by the fact that several of the main authorities have gone to an appeal. The courts appear to give high regard to the Helsinki Criteria and recent attacks on its credibility have been unsuccessful (such as in the unreported case of Treble v Rio Tinto (Treble v Rio Tinto and Imperial Chemical Industries [2008] Bristol County Court; see https://info.beachcroft.co.uk/ve/ZZ7490IjC8197LsgwU)).

In Wilsher v Essex Area Health Authority [1988] 1 AC1074, the court had to grapple with a number of factors which could have caused the injury (in this case whether excess oxygen had caused the claimant's retinal condition) and ultimately decided that the claimant could not satisfy causation.

But it is a fine line so that in McGhee v National Coal Board [1973] 1 WLR 1), where the court had to consider the effect of the brick dust the claimant was exposed to while working as opposed to the brick dust which remained on his skin because it had not been washed off, the claimant was successful.

Applying both these cases in Wylie v Northumbrian Engineering Limited, (unreported), the court was faced with a claimant who was exposed to asbestos and smoked between 15 and 20 cigarettes everyday. The judge found that the claimant was not suffering from asbestosis and, as it could not be shown that the asbestos dust made a contribution to the cancer, the claim failed.

For similar reasons the claimant in McKenna or Main v McAndrew Wormald Limited (1988) SLT 141, described as a moderate smoker who was also exposed to asbestos over a period of 18 years, also failed on appeal.

However, the case of Fairchild v Glenhaven Funeral Services Ltd; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd, [2002] UKHL 22, where exposure occurred during the course of more than one employer, the courts took a more relaxed approach on causation.

Even if the claimant satisfies the court that causation is made out, then there could be a deduction for contributory negligence between 15 per cent (Shortell v BICAL Construction Ltd (QBD) [Liverpool]) and 20 per cent (Badger v MOD [2005] EWHC 2941 (QB)) from the claimant's award.

A tricky area to navigate

Experts will have to be very careful when receiving new instructions and they will need a full employment history when presented with a smoker with lung cancer as the link may not have been considered beforehand by the treating doctors.

Date of knowledge and limitation issues also arise as claimants may not have been alerted to the link between the exposure to asbestos and lung cancer beforehand; although the date of knowledge provisions in the Limitation Act 1980 are likely to assist the claimant.

Experts will have to be more careful than ever when tackling this difficult area. They will need to consider where the claimant became exposed to asbestos and decide whether lung cancer has in fact resulted from asbestos exposure '“ particularly when the claimant is or has been a smoker.