Helena Cameron, one of our specialist asbestos disease solicitors, attended the Merseyside Asbestos Victims Support conference on 28th September 2018. The conference was held to consider asbestos and the law and took place in the beautiful surroundings of the Maritime museum on the Liverpool docks. The funds raised from the course attendance fees are used by the support group to assist them with their very important work and so we were pleased to have had a delegate in attendance. Here is a round-up of the important issues covered at the event.
The course covered a full range of topics, from the medical side of asbestos disease through to the engineering evidence side to the legal and practice aspect of asbestos disease claims.
The Evolution of Knowledge about Mesothelioma
The morning began with a presentation from Professor Sir Anthony Newman Taylor, the President’s Envoy for Health and Director of Research and Development at the National Heart and Lung Institute (NHLI), Imperial College.
Professor Newman Taylor is a specialist in the occupational causes of lung disease. He is also the chairman of the scientific advisory board of the National Centre for Mesothelioma Research at Imperial College. Professor Newman Taylor talked about the continuing problem of mesothelioma. He looked at how knowledge about the risks of asbestos exposure and mesothelioma had evolved over time. He provided statistics and graphs on the predicted mesothelioma deaths in British men in comparison to UK asbestos imports since 1900’s.
The Difficulties Faced in Treating Mesothelioma
Professor Newman Taylor then went on to consider treatment and the difficulties faced in treating mesothelioma. He considered the vast improvements in disease-free survival rates for breast cancer as opposed to mesothelioma, and compared the statistics to other forms of cancer. He discussed the reasons for this, which included:
- the genetic issues and difficulties with the cell mutation involved with mesothelioma, and;
- the fact that the development of a cancer such as mesothelioma probably requires mutations in several genes.
Furthermore, he discussed why identifying mutations is important and confirmed that pathways that have gone awry can be identified. In the future, genetic profiles and altered networks may lead to more effective, targeted treatments. He discussed check point inhibitors as cancer treatments including immunosuppressive drugs. He stated that the deletion of immune response genes in mesothelioma makes a combined immunotherapy potentially promising. He talked about the cancer genetic success in the case of chronic myeloid leukaemia. Before a drug called Imatinib was available, a patient’s life expectancy following their diagnosis was three to six years. Following the introduction of this drug, there is now a 90% “cure” rate. In 2009 Brian Druker was awarded the Laska-DeBakey clinical medicine research award for “converting a fatal cancer into a manageable chronic condition”. The hope is that similar advancements can be made in drugs available for mesothelioma.
Mesothelioma and Calculating Life-Expectancy ‘but for’ the Condition
The medical theme continued with a presentation from Dr John Corless. His presentation focused on life expectancy and an assessment which considered co-morbid conditions in asbestos-related disease patients. Dr Corless confirmed that what Claimants are attempting to determine in assessing a claim is the life expectancy “but for” the asbestos related condition. He confirmed that he uses the Facts and Figures books as the Ogden table seventh edition had derived from a 2008 based population data and, therefore, is now arguably out of date. He said that due to changes in the latest ONS predictions, the expectations of life are lower at most ages than those quoted in the Ogden tables.
Dr Corless then went on to consider the use of the life tables and underlined the fact that the tables state the average life expectancy for an average person, not for a person with no co-morbidities. He said that the Facts and Figures look at a poor population with a range of co-morbidities, histories and lifestyles, including smoking. He quoted the Coal Miners COPD Handling Agreement 2005 which stated “…the “average” life expectancy is the expectancy average over the whole population, which will naturally include men with significant illnesses, as well as those in better than average health…”. The agreement went on to state “…note also you are comparing the Claimant you are examining with an average population, not with a hypothetically fully health, non-smoking population. This is important, particularly when dealing with more elderly Claimants. In such individuals, a number of past medical illnesses and current conditions of any moderate degree may not make them significantly below the average in terms of life expectancy”.
To put further context to this, Dr Corless looked at the prevalence of cigarette smoking by sex between 1974 and 2012. This shows diminishing percentages of the population as smokers. However, by 1998, 30% of men and 26% of women were still smokers. He also looked at the prevalence of obesity by sex and age thereby showing that this was also a significant factor.
As well as lifestyle, he looked at co-morbidities and the fact that 31% of men and 26% of women in England in 2015 were said to be suffering with hypertension. He also considered the significant rise in the diagnosis of diabetes, the figures increasing from 1.9 million in the UK in 2006 to 3.5 million in 2016.
Dr Corless went on to consider the pitfalls in considering medical literature. He specifically referred to Brackenridge’s medical selection of life risks which was designed for use in life insurance rather than clinical practice. He discussed the pitfalls including variable methodology across the chapters and the fact that it does not consider the assessment of the elderly. Furthermore it is now twelve years old and there have been significant medical advances in changing disease problems in that time. Importantly, it only considers reductions rather than any increases in potential life expectancy for good lifestyle and health.
Dr Corless went on to consider the part that post mortems can play. He considered a 75 year old male who had died from mesothelioma and was considered previously fit and well in life with no cardiac symptoms. At post mortem he was found to have 60% to 70% narrowing of two coronary arteries. The question was how this should be assessed, should there be a significant reduction in life expectancy but for the mesothelioma? Dr Corless confirmed that post mortems can over-estimate stenosis by up to 30%. An anatomical narrowing does not necessarily lead to functional impairment. Furthermore, if the disease had deteriorated to such an extent to cause functional impairment during lifetime, the patient may well have been amenable to treatment, reducing any effect on his life expectancy.
Dr Corless also warned of the risks of double counting in terms of reductions to life expectancy but for the asbestos disease. He advised with regards to considering overlapping conditions, the risk of condition A may have already been eventuated in condition B.
The conclusion was that Solicitors should assess the claimant’s life expectancy but for the asbestos disease as compared with an average peer and give consideration to the appropriate reductions or additions to the “but for” life expectancy.
Mesothelioma and Drug Therapy
The medical aspect of the day was concluded by Dr Paul Taylor, a medical oncologist whose specialist training was based in New Zealand and at the Christie Hospital in Manchester. His clinical interests include the treatment of malignant mesothelioma and lung cancer. He works at Christie and Wythenshawe Hospitals in Manchester. Dr Taylor is actively involved in clinical trial work, especially for mesothelioma, and has been co-author on a number of clinical papers. His talk considered the drug therapy of mesothelioma and the options open to oncologists when treating mesothelioma patients.
He looked at the part chemotherapy had to play in the treatment of mesothelioma and the developments in the use of various chemotherapy drugs. He discussed the combination of pemetrexed and cisplatin as opposed to just cisplatin being used on its own. Significant benefits have been seen by this combination of drugs including significant improvements of pain, breathlessness and survival periods.
Dr Taylor also considered the second line options which are available to oncologists. He clarified that there was no standard second line therapy for mesothelioma but advised that the options include vinorelbine or gemcitabine or alternatively a re-challenge with pemetrexed/platinum. He advised that there was also the consideration of clinical trials. He confirmed that he had experienced good effect with second line pematrexed re-challenge in patients and had seen considerable benefits.
In terms of clinical trials, he discussed the Drug Trial Pathway and explained the various phases of a drug getting to market. He discussed the difficulties with clinical trials and mesothelioma drugs and the problems associated with small samples.
Dr Taylor then went on to consider the part that immunotherapy has to play in the treatment of mesothelioma. He explained how the treatment works in terms of cell management. He advised that mesothelioma has a lower mutational load than tumours effectively treated by immunotherapy to date, but initial trials are showing responses.
Asbestos Litigation Update
The day then moved from a medical emphasis to a legal emphasis with Charles Feeney, Barrister, providing an asbestos litigation update.
Mr Feeney considered, by way of background, the historic development of asbestos knowledge and legislation. He considered the important date in asbestos law of 1965 and the position pre and post in terms of pursuing claims.
He discussed the case of Williams v University of Birmingham in which the deceased had been a student conducting an experiment in a tunnel below the university. The judge at that trial had found that asbestos lagged pipes in the tunnel were in poor condition and that there was exposure from asbestos residues on the floor of the tunnel as a result of walking through. However, experts accepted at trial that exposure was significantly below those in TDN13 of 1969 and whilst the judge at first instance found that there was a material increase in risk from exposure and, therefore, a breach of duty, on appeal, as the exposure did not exceed TDN13, breach of duty could not be proven.
He then discussed the case of Bussey v Anglia Heating. In this case, the deceased had been employed by the Defendants as a domestic plumber undertaking work involving asbestos on an intermittent basis, approximately one hour every two to three weeks. At first instance, the claim was dismissed on the basis that the exposure fell below the level set out in TDN13 and that in light of the decision of Williams v University of Birmingham, a claim could not succeed if the exposure was below the levels in TDN13. The Claimant was granted permission to appeal unanimously and the court unanimously allowed the appeal on the basis that the first instance judge had been wrong to treat Williams as having laid down a “bright white line” in terms of exposure levels. Mr Feeney went on to explain that Lord Justice Underhill had identified that it was important to separate two different questions in terms of identification of risk and what precautions were required to reduce or eliminate the risk. In reality, there will always be steps which could have been taken to reduce asbestos exposure.
Mr Feeney referred to diesel claims and compared these in terms of the knowledge that was had at the relevant times by the relevant people about the dangers of asbestos. He expressed a view that we are aware of the dangers to health from diesel but are slow to adequately control exposure and eliminate risks.
Mr Feeney also considered from a legal perspective how immunotherapy should form part of a mesothelioma claim and how it should be dealt with. He suggested the possibility of adjourning a claim for the immunotherapy aspect to be dealt with after settlement.
Mr Feeney also considered the application of the Factories Act in the case of Heynike v Birlec, MOD and Special Metals Limited. This was a case concerning asbestos exposure from stripping out industrial furnaces in the late 1960’s/early 1970’s. There was very substantial dust concentrations but predominantly brick dust with just some asbestos dust. The court at first instance imposed a common law duty of care to the employee of Birlec on the factory occupiers. This was in respect of the dangerous conditions created by their own work on the furnaces. The factory occupiers knew or ought to have known about the dangerous conditions and had the power and opportunity to intervene (see our full discussion of this case). The defendant is seeking permission to appeal and so this position may change.
Finally, Mr Feeney considered the issue of quantum and referred to the case of Davison v NEI Parsons Heaton Power and Siemens. This was a claim made by a 73 year old with asbestos related diffuse pleural thickening. He was assessed to have a 15% to 25% respiratory disability and recovered £50,000 on a provisional basis together with a return condition for diffuse pleural thickening with an additional respiratory disability of 20%. No separate claim was allowed for services but was reflected within the PSLA (pain, suffering and loss of amenity) award for £50,000.
The Asbestos List
A break for lunch then followed with Master Roger Eastman continuing the conference in the afternoon. Master Eastman became a full time Queen’s Bench Master in May 2009 and has dealt with a full range of Queen’s Bench Matters but specialising in asbestos disease and clinical negligence litigation. He discussed the practicalities in terms of using the Asbestos List in the High Court in London. He advised that any case involving any element of asbestos disease would be listed in the Asbestos List and it was not intended just to be for mesothelioma claims. He confirmed that once a case was allocated to the Asbestos List and to a specific Master, it was attempted to keep that case with the same Master throughout the duration of the claim to ensure consistency and easy handling. He discussed and explained the show cause procedure, an early opportunity in the case for the court to consider entering judgement immediately in cases where Defendants have no real prospects of defending a claim. He explained the court’s approach to this and the matters that would be given consideration. He underlined that the court would not entertain Defendants simply putting up fanciful defences to asbestos disease claims in order to delay matters.
Asbestos Claims from an Engineering Standpoint
The day concluded with an engineering viewpoint from Alison Heyes of Pragma and Associates Limited. She is a Health and Safety Practitioner who accepts instructions from solicitors representing Claimants, Defendants and on a joint basis. Her background has been as a Factory Inspectorate and she gave an understanding as to her approach and the matters she takes into consideration when preparing engineering reports for asbestos disease claims. She considered the development of knowledge of asbestos risks and disease. When preparing a report she looks at the diagnosis and what is required to be shown in terms of exposure evidence. She gives consideration to the duty holder/employer and the relevant legislation that applied to them at the time and their relevant knowledge of asbestos as a hazard. As well as the legislation specifically, she looks at the guidance, controls and also the custom and practice of that particular industry and looks at the full picture in the round.
She explains that she is often now being requested to provide dosage reports for asbestosis and lung cancer claims and discussed the amount of detail that she requires in a statement to allow her to more accurately provide a dosage calculation. She explained that she needs details on the person, where the exposure took place, the task or process involved, the tools used and the specific materials used. She looks at the environment and whether the exposure was happening in a confined space or an open space, whether inside or outside and the duration and frequency with which the exposure to asbestos occurred. She gives consideration as to whether it is an asbestos containing material or whether perhaps, given the timing of the material, it was some other material. She then looks to conclude as to whether there is an acceptable or unacceptable level of exposure based on the standards of the day for a particular employer or duty holder. She explained that she will look at recent court judgements in terms of asbestos disease claims and keep abreast of the updated position, however, this will simply for her background reference knowledge rather than for inclusion and reference within engineering reports themselves.
Helena Cameron, specialist asbestos disease Solicitor, said of the day “This was a very informative and wide reaching conference dealing with all aspects of asbestos disease claims. It is good to hear from medical and engineering practitioners and not just be limited to the legal aspects. I look forward to attending again next year!”