1 Legal developments in asbestos claims Toby Scott Partner, BLM Stockton-on-Tees business services construction & property insurance & indemnity leisure media & technology public sector retail transport
2 Introduction 2008 Asbestos Working Party Report Breach of duty: Common law and statutory duties Light exposure and early exposure Evidential standards Minimal symptom claims
3 2008 Asbestos Working Party Report Why prepared? Relevance to us
4 Modelled male mesothelioma deaths and claims
5 2008 Asbestos Working Party Report continued UK mesothelioma 2003 to claims 1603 deaths claims (30% higher) 1897 deaths (18% higher)
6 2008 Asbestos Working Party Report continued Possible explanations? a. Each sufferer making claims to more insurance companies b. Greater levels of insurance coverage c. Reduction in delays d. Higher proportion of mesothelioma victims making claims
7 UK mesothelioma claims Theory D - higher proportion of mesothelioma victims making claims: 36% of all victims made an insurance claim in % of all victims made an insurance claim in 2007 Claimant to insurance claims figures have reduced from 1:2.4 to 1:2.1 in 4 from 2003 to 2007 NHS National Mesothelioma Framework In one specialist centre lifetime diagnosis increased from 50% to 95% over 8 years Younger victims more likely to claim
8 Occupational, Domestic & Environmental Mesothelioma risks in Britain Professor Peto & others March 2009: UK mesothelioma death rate highest in world. 1 in 40 of all cancer in men aged less than 80 1 in 170 of all men born in 1940s will die of mesothelioma Risk of mesothelioma 1 in 1000 from environmental exposure Exposure to amosite in building industry underestimated much higher in UK compared to US continued until 1980 s Britain was the largest importer of amosite Higher prediction of mesothelioma deaths?
9 2008 Asbestos Working Party Report continued Future projection HSE projection will underestimate deaths 10% increase in deaths projected 2000 to 2007 (20% more likely)
11 Breach of duty Context Some history Dates of knowledge (common law) 1930 Merewether & Price Report 1932 Asbestos Industry Regulations Newhouse & Thompson paper and Sunday Times article
12 Rule of thumb: The asbestosis range? What is it? Pre 1965 exposure within the range will be in breach Post 1965 all significant exposures likely to be in breach How useful?
13 Impact of statutory duties 1931 Asbestos Industry Regulations: 8+ hours exposure a week Applies to processes: - breaking, crushing, grinding - textile manufacture - slab or section manufacture - sawing, grinding, polishing as part of manufacture
14 Impact of statutory duties continued 1937 Factories Act s4 ventilation 1937 Factories Act s47 removal of dust or fumes
15 Do these duties override the rule of thumb? Ebbs v James Whitson & Co Ltd (1952) On the wording of section 4 it is immaterial whether the occupiers know or ought to have known that the dust might be injurious to health. Is the objective test sacrosanct?
16 A suggested rule of thumb Is it a factory? If yes is exposure significant / in excess of de minimis If no: Pre 1965 is exposure above the asbestosis range (intensity) Abraham v G Ireson & Son (Properties) Limited and Others Post 1965 is exposure significant?
17 Relative risk defence Exclude breach of statutory duties Post 1965 (1968) is exposure significant Breach must be causative relative risk defence Sienkewicz v Grief (25/11/08) Office working in contaminated building 18% increase in background risk What does this mean in practice?
18 Evidential standards Challenges for claimants Dead or untraceable workmates Ageing clients No documentation Confused working environment (occupiers, contractors, subcontractors in the workplace) The condition may be the only real evidence of exposure
19 Construction of a case and judicial inferences Earlier failure to report exposure is not fatal [Maggs v Anstey 2007] Use of indirect evidence and judicial inferences Role of engineer Compare Brett v Reading University [C.A., ] and Cox v Rolls Royce [C.A., ] Conclusion
20 Minimal symptom claims Pleural plaques and beyond Asymptomatic and pre-clinical DPT and asbestosis Cases to defend and how much to pay
21 Beddoes v Vinters Armstrong (2009) Diagnosis does not lead to automatic recovery Is the claimant appreciably worse off? Damage provides foundation for compensation for risk and anxiety Identifiable if subtle contribution to breathlessness even if detectable/noticeable by claimant and even if only on exertion can amount to damage a medical issue Beddoes 1.6% asbestos related disability and 5% risk of progression recovered 11,375 Cooksey small but identifiable contribution to additional breathlessness on activity, recovered 13,612.21
22 Quantum layers of damage Bottom layer 5,000 (provisionals) for symptomless condition Middle layer 4,000 supplement for symptoms and anxiety Upper layer Risk supplement = (final award on malignancy x risk) discount for accelerated receipt Final awards likely to approach if not exceed 15,000 and judge did not include all financial losses in the risk supplement
23 Analysis Analysis of middle layer seems flawed Anxiety was included in 5,000 provisional award Mr Beddoes received 4,000 for 1.6% disability Compare British Coal Compensation Scheme (index linked) and other sources % Disability Amount British Coal Compensation Scheme Equivalent (61-70) 1.6 4, , , , , , , , , ,020.00
November 2011 Williams v University of Birmingham  EWCA Civ 1242 Court of Appeal, 28 October 2011 In a mesothelioma claim, the Court of Appeal (CA) found that the defendant was not in breach of duty
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