A recent case of asbestosis dealt with by Matt Archibald and Shelley Hawker, where the deceased passed away on January 13, 2021 (aged 91), underscores the complexities involved in establishing medical causation in occupational disease claims.
The claim, brought by the deceased’s son, centred around the allegation that the deceased had been exposed to asbestos during his work as a Tank Man from 1943 to 1988. The evidence provided by the claimant solicitors dealing with exposure was sparse and contradictory and the medical evidence was weak. This combination resulted in the defendant obtaining their own evidence, which ultimately led to the discontinuation of the claim. This case offers several important lessons for legal professionals and those involved in similar claims.
In this case, the evidence of asbestos exposure was primarily based on the testimony of the deceased’s son, who did not work for the defendant, and a neighbour who did, but not in the same role. This lack of direct, detailed evidence significantly weakened the claim. Without firsthand accounts or strong documentary evidence, proving exposure to asbestos becomes challenging, especially when the exposure occurred many decades prior. This highlights the importance of gathering comprehensive and reliable evidence early in the case preparation process, especially in asbestosis cases where an expert will need to assess the extent of any exposure.
The post-mortem analysis in this case revealed significant findings, including pulmonary fibrosis, pleural plaques, and the presence of asbestos bodies in the lungs. However, the lung fibre count, which was crucial in determining the extent of asbestos exposure, was reported as zero, casting doubt on the diagnosis of asbestosis. The pathologist discounted this result based on other findings, but this discrepancy later played a crucial role in challenging the claim. This emphasises the need for detailed and accurate post-mortem examinations, as well as a critical review of all findings to ensure that conclusions are well-supported by the evidence. This was particularly important in this case as an inquest was conducted and a finding of industrial disease made by the coroner, but the active and trading insured had neither been notified of the inquest nor had any opportunity to present evidence to the coroner.
Expert testimony was pivotal in this case. Initially, Professor Maskell supported the diagnosis of asbestosis, attributing a significant portion of the deceased’s respiratory disability to this condition. However, upon further investigation and the acquisition of additional lung tissue samples, Professor Attanoos provided a contradictory opinion, ruling out asbestosis and suggesting that the lung pathology was more consistent with idiopathic pulmonary fibrosis or an autoimmune disease. His mineral analysis indicated that the levels of asbestos found were within the range for individuals without occupational exposure. This expert analysis ultimately led to the claim's discontinuation.
Given that establishing medical causation in asbestosis cases relies on meeting the dose threshold specified by the Helsinki Criteria (25 fibre/ml-years), and that such significant exposure typically occurs in high-risk activities such as lagging, it is clear that the claimant does not meet the criteria. Consequently, this indicates that any asbestos exposure experienced by the claimant was not in breach of regulations, thereby negating any Breach of Duty.
The decision to obtain an expert report from Professor Attanoos, despite the cost, proved to be a valuable investment. His clear and definitive conclusions not only ruled out asbestosis but also supported the decision to invite the claimant to discontinue the case. This case illustrates the cost-effectiveness of investing in thorough investigations and expert analyses, as they can prevent prolonged litigation and additional expenses.
This case serves as a reminder of the complexities involved in asbestosis claims and the importance of robust, reliable evidence in establishing medical causation. Legal professionals handling such cases should prioritise obtaining detailed and accurate evidence where necessary, apply the Helsinki Criteria rigorously, and consider the value of expert testimony in navigating these challenging cases. Ultimately, a thorough and meticulous approach can lead to more effective case management and outcomes.
Matt Archibald - Solicitor
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