We are delighted to say that we have recently settled a complex mesothelioma claim, where we also recovered the cost of private immunotherapy treatment. Our client, Mr O, was diagnosed with aggressive, sarcomatoid mesothelioma in November 2016 after being exposed to asbestos at work when he was younger.
He had only ever been exposed to asbestos dust when working for one employer – George Wimpey & Co Ltd, who now trade as Carillion Construction (Contracts) Limited. Continue reading to learn more about his exposure and how we won the claim.
Exposed to asbestos at work:
In 1968/69, Mr O began working full-time for George Wimpey & Co Ltd as a fully-qualified joiner. His usual hours of work were 8am-5pm, Monday to Friday. However, he would sometimes complete overtime hours.
During the late 1960s/early 1970s, Mr O remembers working for the company on a large contract. The contract involved working over four separate building sites on Birch Green developments and one in Tanhouse, Skelmersdale. He believes that this was part of the government’s New Town initiative, where George Wimpey were contracted to construct hundreds of homes.
Mr O worked in every house, lining the downstairs recesses of the properties with a white asbestos lining material. He describes the lining material as asbestos sheets. He would measure up the recess within the house and then cut up four lengths from each sheet to fit. He believes the sheeting was being used as fireproofing.
Mr O used handsaws on trestles to cut the asbestos sheeting to size. The asbestos was a soft, fibrous material and, as he sawed at the asbestos sheeting, a lot of asbestos dust would be released into the air. Unfortunately, he could not help but inhale this. The white asbestos dust would cover his work clothes, hair and skin. He carried out the cutting work inside, which resulted in asbestos dust floating around within the shell of the house throughout the rest of the working day.
Mr O then fitted the lining sheets into place in the recesses, using nails to hold them. The hammer would cause further asbestos dust to rain down on him. Whilst the length of time Mr O spent in each house was relatively short (around an hour or so), he worked on hundreds of houses over 5 years of work.
He also remembers working close to plasterers and other labourers who mixed an artex material which also contained asbestos. The other workers were involved in pouring this mixture into buckets to create a paste which was spread across ceilings. This resulted in a lot of asbestos dust, which Mr O breathed in on an almost daily basis.
Mr O could also remember labourers brushing up asbestos dust and debris near him on a regular basis. This resulted in further asbestos dust rising up into the atmosphere which he inhaled.
After these five years, Mr O could not recall coming into contact with asbestos again whilst working for George Wimpey & Co. We relied on the details above as proof of negligence and breach of statutory duty in the mesothelioma claim.
The medical report:
We obtained medical evidence from an expert respiratory physician. He said that the asbestos exposure had materially contributed to the risk of Mr O developing mesothelioma.
After receiving the medical report, Mr O confirmed that he had been seen by Professor Fennell at the Glenfield Hospital in Leicester. During this meeting, they discussed his recommended treatment options. Professor Fennell concluded that pembrolizumab (keytruda) immunotherapy treatment was the best option. However, this is not currently available on the NHS. Tests showed that Mr O could benefit greatly from the ground-breaking treatment, but he would have to pay for it privately.
The defendant’s response:
Claiming compensation to cover private immunotherapy costs is a growing trend in mesothelioma claims, which we are happy to be at the forefront of. It can, of course, increase the overall value of the mesothelioma claim significantly.
As a result, we have found that defendants and their insurers are more likely to argue against such mesothelioma claims to avoid paying the compensation.
In Mr O’s case, the insurers did not originally respond on the issue of liability, but when we issued court proceedings, they provided engineering evidence which suggested that Mr O had not been exposed to enough asbestos for George Wimpey & Co to be at fault. They referred to Technical Data Note 13, which was issued to assist companies in understanding how to apply the Asbestos Regulations of 1969 to working practices.
Thankfully, our own engineering evidence was much stronger than the insurers’. George Wimpey & Co’s engineer had used data related to TDN42, which covered dust levels created by handling and cutting asbestos ‘coated’ products. These were not introduced until after Mr O was no longer being exposed to asbestos. Clearly, Mr O had been exposed to ‘uncoated’ asbestos products when working for George Wimpey & Co, which produced much greater levels of asbestos dust when handled and cut. This was relied upon to support the claim for mesothelioma compensation.
Was the immunotherapy a success?
Mr O had immunotherapy treatment without chemotherapy, as his first treatment option. This is unusual – past studies into the viability of Keytruda showed that the treatment is usually offered as a second-line of treatment, post-chemotherapy.
After undergoing many cycles of the costly treatment to help combat his aggressive mesothelioma, we are happy to say that Mr O received news that his tumour had shrunk by 50%. He has since had additional radiotherapy treatment to help prolong his life further.
We hope that the development of immunotherapy treatments in general will offer further hope to those who have been misfortunate enough to be diagnosed with this, as yet, incurable asbestos-related cancer.
The insurers did not make a settlement offer for Mr O’s claim until 13th December 2017 – exactly 2 months before the 2-day trial about the claim was set to commence. We eventually succeeded in the claim after a contentious fight. Mr O recovered a sizeable sum of mesothelioma compensation which covered the cost of his private treatment and more.
We advanced Mr O’s mesothelioma claim with speed, as he sadly had a short life expectancy and does not have any dependants. This would mean that if he sadly passed away before the mesothelioma compensation was recovered, a large chunk of the compensation would not have been able to be claimed.
Importantly, it was agreed by the defendant that they would continue to fund any private immunotherapy that Mr O required, for as long as his treating oncologist recommended it. This has given him peace of mind, knowing that he does not have to find money to pay for this costly treatment himself in the future.
In successfully claiming the private costs of the immunotherapy treatment, we relied upon the decision in Najib, in which the judge stated that, “The Claimant faced with a harsh, painful illness and a short life expectancy, was offered the chance of a longer life. He took it. I am unable to find that in these particular circumstances, the actions of the Claimant were unreasonable”.
How can we help?
If you require assistance in pursuing a mesothelioma claim, or believe you have a valid asbestos claim for any other asbestos-related disease, please contact us today. You can do so by calling our Freephone number: 0800 038 6767, or filling in our contact form.