By James Cameron, Head of Industrial Disease
On the 18th October, I was privileged to attend the Association of Personal Injury Lawyers’ annual asbestos disease claims conference, which was held in London. Each year, many specialist asbestos disease solicitors come together to learn more about recent developments in this niche field.
As always, the itinerary for the day was filled with insightful speakers who provided all delegates with important information to use for the benefit of their clients.
Invaluable Guidance from Silk
First up, was the eminent Simon Kilvington KC of Byrom Street Chambers in Manchester who delivered an impressive talk on tackling asbestos disease claims involving exposure in buildings. Such cases can be brought, not only against our clients’ employers, but also against the owners or occupiers of various sites where the exposure occurred.
Simon is considered by many, including myself, to be the most impressive asbestos disease specialist barrister, with decades of experience dealing with, often complex, high value claims.
One of my own successful mesothelioma claims was discussed by Simon in his talk involving the application of The Control of Asbestos at Work Regulations 2002 regulations which impose a duty upon owners and occupiers to manage asbestos appropriately in buildings. Simon discussed Regulation 4, which confirms that anyone with an obligation to maintain or repair or anyone who has control of the premises, must manage this within their buildings. Such duty holders often include government departments, landlords and schools to name but a few.
Simon highlighted that duty holders need to ensure that suitable and sufficient assessments of the asbestos in their buildings is carried out. A proactive approach is required, with these parties having to take plans and the age of the building into account, conduct regular inspections and also review the assessments regularly.
In our covered case, we relied upon Regulation 4 (8) to show that the occupier of the site where our self-employed client worked, should have notified him of the presence of the asbestos materials in their building as a person who “may” have come into contact with the material. Simon emphasised that the duties on the regulations are powerful and should be considered for all exposure which occurred beyond 2004 when the Regulations came into force. In the index example, we succeeded in the case at the first “show cause” hearing in a case which would have been very difficult to win at common law.
Simon referred to another case which showed the importance of the duties under the regulations being non-delegable. The sufferer had been exposed to a thin layer of asbestos lagging for a few hours only in a council owned boiler room where asbestos had failed to be fully stripped away from pipework. The council sought to rely on a surveyor’s report, suggesting that the material had been correctly removed, but it was successfully argued that the council’s duty was non-delegable, and the Claimant succeeded under the 2002 regulations.
Such helpful examples can be used by specialist practitioners like me, to assist clients who are unable to bring employers liability or public liability claims.
Simon also took delegates through a history of how asbestos dangers have been noted in various papers and guidance over the years, paying particular attention to the Court of Appeal’s decision in the pre-1965 exposure case of Cuthbert which went against the Claimant. To counter Defendant arguments, we can emphasise how asbestos had been seen as a killer in many early papers, with some showing that exposure to it should be reduced to the lowest level reasonably practicable, guidance which has been discussed in various past cases including in Jeromson v Shell Tankers.
Simon underlined the importance of Claimants being able to recall particular jobs and concluded that unless a suitable assessment of the work at the time has been carried out, it is likely to produce a foreseeable risk of injury, with the caveat that pre-mid-1975 cases involving asbestos exposure in buildings will be harder to win than those relating to exposure beyond this period. There remains the need to prove exposure to dust which has been disturbed, the mere presence of materials in a building does not necessarily mean that a visitor or worker will have been exposed to harmful fibres from it.
12 KBW Junior Sheds Light on Quantum Decisions
Next up was Gemma Scott, a well-regarded junior barrister from 12 Kings Bench Walk Chambers in London. She provided some guidance on recent quantum decisions, including on Price v Marston’s PLC which related to the interpretation of loss of life expectancy due to obesity. Gemma said it can be strongly argued that if obesity developed during later life, not as much emphasis should be placed upon it when calculating life expectancy.
Gemma also emphasised the importance of documenting a sufferer’s care needs whilst in hospital which may include the need for their family to provide them with foods, snacks and other items whilst also liaising with their medical practitioners on their behalf. Such care tasks should be recoverable as per the decision in Wilson.
There was also a discussion on how Defendants seem to have ignored the recent inflationary uplift on general damages in the 17th edition of the JC guidelines when valuing this head of loss. There is an argument that the current bracket should be uplifted further, given further inflationary increases since the date of their publication. This was another useful talk and forum for discussion between delegates on the day.
The Scottish Perspective
Kaitlynn McCabe of Digby Brown Solicitors, Glasgow provided an interesting talk on how Scottish asbestos disease claims are dealt with.
Unlike the situation in England and Wales, compensation can be recovered for extended family members in mesothelioma cases. Also, lower reductions on lost years claims are applied on income compared to my own cases here in England. Pleural plaques compensation remains available north of the border at levels between £8,250.00 to £13,500.00.
It is important for practitioners to be aware of the differences between the two legal systems to ensure they act in their best interests as some Claimants may be better off claiming north of the border, when they can.
Patrick Kerr – An Able Deputy
In Mike Rawlinson KC’s absence due to illness, able deputy Patrick Kerr stepped in to provide a detailed insight into the Court of Appeal decisions in both Cuthbert and White which had been mentioned briefly at the start of the day.
Mr Cuthbert had cut asbestos board material, worked near to others when they cut the material, and he dry swept the left-over dust and debris from the floor. On the face of the facts, Claimant lawyers would expect to succeed in such a claim, but no oral evidence was submitted by Mr Cuthbert and the Court of Appeal upheld the original High Court decision on the basis that the trial judge was able to reach findings of fact that the dust levels experienced by Mr Cuthbert did not present a foreseeable risk of injury by the standards of the pre-1965 day and there was no duty on the Defendant to reduce the exposure to the lowest level reasonably practicable either.
Mike Rawlinson KC was the silk instructed for the Claimant in Cuthbert and he cited 3 grounds of appeal. He argued that some of the findings drawn at the original hearing were impermissible given the totality of the evidence. The judge failed to pay sufficient weight to dry sweeping of asbestos and documents available to show how dusty this was. Jeromson, Maguire and Bussey were also relied upon, and it was alleged that the judge made up a substantial exposure pre-1965 method of deciding the case.
Leading Claimant counsel argued that the presence of visible dust was the trigger and this might amount as material contribution to the development of asbestosis, the risks of developing which were well-known prior to 1965. He also argued that it would be entirely inequitable to allow the Defendant to rely on documents referring to the potency of asbestos dust exposure which were not in issue until many years after Mr Cuthbert’s exposure.
LJ Smith, who was leading Defendant counsel in the well-known, famous Claimant win in Sienkiewicz, Newey and Underhill had vast experience in dealing with mesothelioma cases and held that the judge could make the findings of fact that they did and there was no duty to reduce the exposure to the lowest level reasonably practicable. Permission to appeal to the Supreme Court was refused last month.
White was a similarly negative decision for Claimants suffering with mesothelioma and the matter was decided only 3 days after Cuthbert in the Court of Appeal.
Whilst some feel that pre-mid-1960s exposure cases will soon be cases of the past, Patrick Kerr disagrees and made the interesting point that an 18 year old in 1965 is still only 77 years of age now and the average life expectancy for a man of this age is 87 so such cases may not be as scarce as one would think.
He added that Defendants looking to rely upon post exposure documents to assess what happened before is dangerous. Many of the documents they have relied upon in Cuthbert and other cases were prepared following significant asbestos industry lobbying campaigns. Patrick argues that if Defendants look to rely on such, Claimants should and could rely on later guidance such as EH10, published in 1976 which clearly underlines how exposure to even low levels of asbestos presents a significant risk of harm and such exposure should be reduced to the lowest level reasonably practicable.
What is clear is that it is more important than ever to take as much detail from clients for the purposes of drafting their statements than ever as judges are unlikely to fill in any gaps in the evidence following the recent Court of Appeal decisions. If such decisions are cited in Defences, it will prove difficult to obtain judgement at the “show cause” stage. However, Claimants could rely upon expert engineering evidence, quoting 1967 Factories Inspectorate guidance which describes asbestos as a recognised “killer”, as well as other forms to apply this retrospectively to exposure which occurred long before their publication. He closed by arguing that if the consequence of inaction is as serious as death, surely Defendants must do something to reduce this risk to the lowest level reasonably practicable.
The Engineer’s Input
Tim Wallis of Pragma Asbestos spoke next. He is an expert I have used on my own cases in the past and I have always been impressed with the detail and clarity in his reports.
Tim provided delegates with insightful guidance on how to consider dosage calculations in asbestos disease claims. Such information can be used when assessing whether a Claimant’s exposure is significant enough to establish blame when assessing cases early on.
The Anchorman Dan
Dan Easton of Leigh Day & Co closed out the conference with a step-by-step approach to preparing asbestos disease cases as thoroughly as possible, emphasising the importance of taking detailed, accurate statements and the need to search for witnesses and disclosure to support our clients’ accounts on their exposure to asbestos.
Once again, the course was invaluable, and I will use the knowledge gained to assist my clients on their asbestos claims in the future.
Attending conferences is crucial for solicitors to stay at the forefront of legal developments and continuously refine their expertise. These events offer valuable opportunities to learn from industry leaders, gain insights into evolving case law, and understand the latest trends and technologies shaping the legal landscape. By investing in ongoing professional development through conferences, we ensure we maintain the high standards of knowledge and skill essential for delivering excellent client service.
We Can Help
If you have been diagnosed with an asbestos related condition and have a history of exposure to asbestos, you may be able to claim compensation. Contact our expert team today for a free, no obligation chat, you can reach them on 0800 038 6767 or send a message through our Contact page. All of our claims are dealt with on a no win, no fee basis.