COSTS MONKEY

BACKGROUND

It is very unfortunate that this area of law continues to grow. Given the time periods between exposure and actual manifestation of the diseases the number of these cases are set to increase in years to come. There has been some uncertainty regarding reasonable levels of appropriate success fees and after the event insurance premiums in this area. In July 2005 the Civil Justice Council announced that an “industry agreement” had been reached fixing recoverable success fees in disease claims. The amounts were incorporated into the Civil Procedure Rules later that year, to take effect from 1st November 2005. The new fixed success fees were to a apply in all cases where the letter of claim had been sent after that date.

 

Important Decisions

 

Fairchild -v- Glenhaven Funeral Services Ltd [2003]

 

In this case the Claimant had been exposed to asbestos whilst in the employment of more than one employer. The Claimant had faced the onset of mesothelioma, clearly linked with the exposure to asbestos, but it proved to be a near impossible to prove which employer should be held liable for the breach of duty. As both employers were found to be in breach of duty to prevent their employee from inhaling the asbestos fibres in the knowledge that there might be a risk to the employee’s health both employers were found to be liable to pay the Claimant’s claim for damages.

 

John Grieves & Others -v- FT Everard & Sons, British Uralite PLC & Others [2005] EWHC 88

 

This case raised numerous questions over whether the incidence of pleural plaques and some exposure to asbestos fibres warranted an award of compensation. Levels of provisional and final damages were nevertheless reduced. It was argued by the Defendants that pleural plaques, thickening of the lung lining, were not actually a disease. It was also suggested that whilst their presence may be an indicator that a person has been exposed to asbestos in the past it could also be as a result of exposure to numerous other materials.

 

It was held that the presence of pleural plaques did not in itself constitute a cause of action. As such they were not considered to be a ‘disease’ or ‘impairment of physical condition’. The test as per Cartledge -v- E. Jopling had to apply. The psychological harm and anxiety caused by permanent penetration of the body by asbestos fibres and prospects of the onset of disease in the future did warrant an award.

 

The judgment gives a good brief guide to past asbestos related conditions, pleural plaques, asbestosis, mesothelioma and lung cancer.

 

This decision was successfully appealed in January 2006. The lead appeal case in the judgment dated 26th January 2006 was Rothwell -v- Chemical & Insulating Co. Ltd & Anr [2006] EWCA Civ 27.

 

Asbestos Related Diseases

 

Asbestos has been in use for hundreds of years but only came into commercial prominence towards the end of the 19th century. It was highly rated for its durable quality, strength and resistance to fire. It has been used to form part of the fibres in many products, from curtains to brake linings, and floor tiles to cement pipes. Workers were exposed for some years to the substance particularly in industries involving the production of fire proofing materials, mining, ship building and construction. In the early 1970’s scientific reports suggested a strong link between asbestos fibres being breathed in by industrial workers and diseases such as mesothelioma, a form of lung cancer which sees the victim terminally deteriorate very quickly. Unfortunately it was not until the late 1980’s and 1990’s that governments across the world imposed regulations banning its use and encouraging substitute materials. Today people are dying every day from the diseases caused by fibres inhaled over a period of time despite, in many cases, being decades ago.

 

Asbestos-related diseases fall into a range of different types. Below are just some examples.

 

Asbestosis

 

Asbestos fibres that have remained in a person’s lungs for a number of years can cause considerable internal scarring and fibrosis. The end result is that the lungs begin to harden and it becomes more difficult to breathe. An uncomfortable dry cough, shortness of breath and even secondary heart diseases are all linked with the disease as is mesothelioma. There is unfortunately no effective treatment for this disease.

 

Articles:

 

Hazards Magazine, Workers’ health international online magazine.

 

Mesothelioma

 

This disease requires relatively less exposure to asbestos than asbestosis. It is the development of a malignant tumour usually found on the membrane lining of the lungs but can be found elsewhere in the body. A victim diagnosed with mesothelioma will usually have no more than 18 months to live as decline is rapid and there is no effective treatment available.

 

Pleural Plaques

 

These are less serious than the disorders detailed above but can eventually lead onto signs of asbestosis. It involves the thickening of parts of the membrane lining of the lungs. The individual can lead a normal but symptomatic life. It is currently being disputed whether pleural plaques are a direct result of exposure to asbestos and in consequence warrant an award of compensation. This was argued most recently in the case of John Grieves & Others -v- FT Everard & Sons, British Uralite PLC & Others [2005] EWHC 88 (QB). Click here for more details of this case.

 

Other Occupational Diseases

 

Silicosis

 

Pneumoconiosis

 

  

 

 

 

Costs Monkey

Content last updated: 15/07/08