Copyright

(c) 2016 Jon L Gelman, All Rights Reserved.

Tuesday, September 11, 2012

Compensation for Asbestos Related Pleural Thickening in the UK

Some of the first reported asbestos related disease cases emerged from England including a London chimney sweeper had suffered from exposure. "Since 1775 when Percivall Pott, a prominent British surgeon, noted that chimney sweeps had a high incidence of cancer which he attributed to prolonged exposure and repeated contact with soot, many other work-related cancers have been documented. More recently, attempts have been made to estimate the proportion of cancers which are occupationally and environmentally induced. Estimates have ranged from less than 4% to more than 85%." "Cancer - Occupational Exposure to Carcinogens-Aggravation/Acceleration," Gelman, J., 38 Workers' Compensation Law §9.18, West Publishing 3rd ed (2001).

The British Industrial Injuries Disablement Benefit program has established a program for evaluating asbestos related pleural thickening caused by asbestos exposures and this is discussed by Michael Osborne, Senior Solicitor, Moore Blatch Resolve LLP in a recent article which is shared below. The author is a senior solicitor with the firm’s personal injury team, specialising solely in claims relating to asbestos-related disease. I was a member of the steering committee of the British Lung Foundation’s mesothelioma awareness campaign, contributed to Macmillan Cancer Support’s booklet Understanding Mesothelioma (2010), and wrote the book Asbestos Disease Claims: a Guide for Doctors and Health Care Professionals (2001, Informa). - See more at: http://www.mooreblatch.com/our-people/profile/299-michael-osborne/#sthash.HTWJGhWD.dpuf


"The number of cases of pleural thickening has increased dramatically over the last 20 years. Between 1991 and 2011 the number of successful applications for Industrial Injuries Disablement Benefit for pleural thickening rose from 150 to 440. More than double that number of cases (821) were diagnosed by hospital respiratory physicians in 2011.

Medically, the condition is a thickening of the surfaces of the pleura, usually the visceral inner surface, although it can also involve the outer parietal pleura. It can be caused by lower doses of exposure to asbestos than asbestosis.

Frequently, pleural thickening does not show up on an x-ray and a high resolution CT scan is required to identify it.

Pleural thickening often causes breathlessness and can cause chest pain. Full lung function tests are often required to establish whether pleural thickening is causing breathlessness. If tests show a constrictive impairment, a Medical Expert may well state that it is.

In most cases, the level of disability caused by pleural thickening does not increase over time but remains static. It is estimated that in about 10-25% of cases respiratory disability does, in fact, increase in the first 10 or so years after diagnosis. In these cases, the disease seems to progress intermittently, in fits and starts. After this 10-year period, progression of breathlessness is quite rare.

The Claimant's Solicitors must review the medical records carefully. This is because pleural thickening is not always the result of asbestos exposure. It can be caused by rheumatoid arthritis, by bleeding (for example after trauma or surgery) or by a previous infection (such as empyema or tuberculosis).

In 2007, the House of Lords held that symptomless pleural plaques were not actionable (Rothwell -v- Chemical and Insulation Company Limited). In the light of this decision it is likely that any claim for symptomless pleural thickening would fail. In a test case concerning claims for asbestosis, however, it was held that if this condition caused respiratory disability between 1 and 3% this was “significant” and, therefore, actionable (Beddoes -v- Vinters Defence Systems (2009)). Thus, if pleural thickening is causing this level of disability or more, there is a good chance that the condition is actionable.

In cases where an individual has been exposed to asbestos by multiple tortfeasors (which, practically speaking, usually means several employers), the Court considers pleural thickening to be a divisible or dose-related condition.

Each tortfeasor is liable to compensate the Claimant for the proportion of his/her overall exposure to asbestos which was unlawful and for which it was responsible (following the Court of Appeal decision in Holtby -v- Brigham and Cowan (Hull) (2000)).

Damages awards for pleural thickening can be significant. The current guidelines of the Judicial Studies Board (JSB) (the body which gives training to judges) states that the general range of awards where disability is more than 10% and typically causing progressive symptoms of breathlessness is from £27,450 to £56,000. Where the level of respiratory disability is between 3 and 10%, the JSB range of awards is £10,750 to £27,450.

The younger the client, the stronger the argument for him/her claiming provisional damages, rather than full and final damages. This will give the Claimant the security of knowing that he/she can make a further claim if he/she develops mesothelioma, asbestos related lung cancer or asbestosis.

In the last few months, several pleural thickening cases have been settled on the basis of the above guidelines, including for:
A Claimant whose only exposure to asbestos took place when he had worked as a lagger's mate for a period of less than 2 months in 1962. He was 66 years old and had respiratory disability of 20% due to pleural thickening and of 40% due to non-asbestos related conditions. It was estimated that the disability from his pleural thickening would increase to 40% over the remainder of his lifetime. In the opinion of his Medical Expert, the Claimant would in the future require help with the activities of daily living outside the home (e.g. shopping and gardening etc.). He was awarded £35,000 for his pleural thickening on a provisional damages basis, together with £7,000 for the assistance he would require with the activities of daily living.
A man who had been employed by Vickers-Armstrongs Limited from about 1957 until about 1965 as an apprentice hand driller and as a journeyman. He was diagnosed with pleural thickening and asbestosis, causing a combined respiratory disability of 20%. It was estimated that his respiratory disability due to these conditions would progress to 40%. The Claimant also suffered from COPD and obesity, which were estimated to cause 40% respiratory disability. Again, the Claimant's Medical Expert considered that towards the end of his life, he would require help with the activities of daily living. His claim was settled on a full and final damages basis for £50,000.
A 69-year-old man who was exposed to asbestos when employed by British Sugar from 1970 until 1989. In the course of his work, he stripped asbestos lagging. His respiratory disability due to his pleural thickening was assessed at 10%. The pleural thickening was likely to remain stable, with only a 2% risk of progression sufficient to cause significant further respiratory disability. The Claimant was awarded £27,304 on a provisional damages basis.
A 79-year-old man who was exposed to asbestos when employed from 1949 to 1950 as an apprentice heating engineer. He repaired boilers and mixed up and applied asbestos lagging. His pleural thickening was estimated to be causing 20% respiratory disability and it was unlikely that this would progress. The claim was settled, on a full and final damages basis, for £28,500.
Mr Hobson who was exposed to asbestos in about 1958 when working as an apprentice for British Rail at Wolverton Carriage Works. He worked near men who sprayed blue asbestos onto train panels. In 2011, aged 71, he was diagnosed with pleural thickening assessed as causing a respiratory disability of 40%. It was estimated that this would progress so as to cause an 80% disability by the end of his life. His claim was settled for £52,800 on a provisional damages basis. The Claimant was allowed to bring a further claim for pleural thickening if this deteriorated causing a respiratory disability of more than 60%.

Mr Hobson becomes breathless on exertion and can no longer enjoy his favourite pastime of walking. He said:

“This is just something I have to live with, but I am keen to let others know about my experience, particularly anyone who may be suffering from similar symptoms to me, so that they have an opportunity to access the support and services they need.”

The effects of pleural thickening can, therefore, be severe. Even if the condition is causing relatively minor symptoms, however, success in a provisional damages claim usually gives a claimant the security of knowing that he/she will recover damages if he/she develops mesothelioma. This is because liability will have been admitted by the defendant and investigations in the pleural thickening claim very often identify its insurance company. Consequently, even if the defendant itself is later dissolved, the insurers would have to pay damages in a mesothelioma claim. Lawyers should not, therefore, overlook pleural thickening cases as a category of claim.