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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.
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 
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  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
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.
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.
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  EWHC 88 (QB). Click here for more details of this case.