PROOF OF CAUSATION A new approach in cancer cases

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1 PROOF OF CAUSATION A new approach in cancer cases Andrew Axon Barrister Parklane Plowden Chambers Life is unpredictable 1

2 Gregg v Scott Non-Hogkin s lymphoma 9 months delay Injury = premature death due to cancer Cure =10 years survival No delay, 42% prospect of cure Delay, 25% prospect of cure Gregg v Scott Question: Did delay deprive the Claimant of the prospect of cure? (No other matter to be determined.) Definition of cure disease free survival 10 years after initial treatment. 2

3 1st Argument Quantification argument. Doyle v Wallace Langford v Hebran These losses (should they transpire) are proved to be attributable to negligence. In Gregg, death (should it transpire) could not be proved to be attributable to negligence. 2 nd Argument Loss of Chance. Rejected due to reluctance to depart from established principals (Hotson, Wilsher, etc) If distinguishable, a reluctance to develop policy to allow recovery in cases of this type para 223 and 224 Difficulty overcoming burden of proof. 3

4 Gregg v Scott Decision: Reduced the prospects of cure from 42% to 25% It therefore increased the risk of death. BUT Claimant could not prove death (if it occurred) was attributable to delay rather than the disease. Importance of the Question The nature of the question often dictates the answer. 4

5 Importance of the Question The nature of the question often dictates the answer. Alternative Question Improved medical understanding permits lawyers to pose different questions. Reduced life expectancy. New data indicates that we have alternatives, in particular considering life expectancy and lost years 5

6 Reduced Life Expectancy Gregg v Scott [2005] 2 A.C. 176 Baroness Hale (para 207), Lord Phillips (para 131 and 132) JD v Melanie Mather [2012] EWHC 3063 Oliver v Williams [2013] EWHC 600 QB JD v Mather Growth in area of right groin. Misdiagnosed as a seborrhoeic wart. Delay 7 months Prognosis very poor 6

7 Predictive factors 1. Breslow thickness of tumour 2. Is primary tumour ulcerated 3. Lymph node involvement 4. Metastatic spread Findings 1. Thickness of tumour 3-4 mm 2. Primary tumour was ulcerated 3. Lymph node involvement - 1 lymph node Therefore AJCC staging IIIB (March) IIIC(October) Chances of survival (March) < 50% - G v S applied. 7

8 Alternative case. Agreed: Delay had caused a reduced expectation of life. Median time for survival stage IIIB 7.5 years Median time for survival stage IIIC 4 years. Damages to reflect reduced life expectancy. Oliver v Williams Ovarian cancer 5 ½ months delay No difference on staging Greater abnormal tissue left reduced life expectancy. 8

9 Claim rejected Claimant failed to prove a measurable difference in life expectancy. HOWEVER: JD v Mather considered: difference staging of the melanoma changed and good quality statistical evidence available Quantification and Further Issues General Damages Lost Years: Whipps Cross University v Iqbal [2007] EWCA Civ 1190 (Croke v Wiseman and Pickett v British Steel) Provisional Damages FAA claims 9

10 QUESTIONS Mesothelioma Living Claimant JAMES MURPHY PARKLANE PLOWDEN LEEDS NEWCASTLE 10

11 Overview Malignant mesothelioma of the plura is very rare 1 / 2,000,000 risk if no asbestos exposure Mechanism of disease unknown presently There is no minimum safe level of exposure Long latency period years + is common 85% of mesothelioma deaths are male Inevitably fatal Life expectancy from diagnosis between 6-24 months Indivisible condition Unlike asbestosis /pleural thickening further exposure does not worsen/ aggravate the condition Materially increasing the risk of mesothelioma is sufficient for causation No need to prove double the risk test Sienkiewicz v. Grief (2011) UKSC 10 De minimis Apportionment not necessary S.3 Compensation Act 2006 (reversing Barker v. Corus (2006) UKHL 11

12 Forseeability of injury Breach of duty requires- Had the Defendant taken reasonable measures to ensure that Cl was not exposed to a foreseeable risk of asbestos related injury. Material increase of risk for causation not breach. Knowledge of risks of injury associated with asbestos (does not have to be a specific illness) and precautions to be taken Nature of Defendants business key Link with mesothelioma (after 1960?) Link with small levels of exposure to asbestos (1965?) Family (secondary) exposure (1967?) Practical matters Benefits IIDB, AA/ DLAC The Pneumoconiosis (Workers Compensation) Act 1979/Diffuse Meso. Scheme 2008 Private insurance Compensation schemes Cl employment history (HMRC) Work/ exposure Engineering evidence Names of colleagues Social media Quantum evidence (Living v. Fatal) 12

13 Living or Fatal Claim Claimant s choice -BUT Lost years claim does not survive death No spouse/ dependants=living claim Liability considerations Loss to death (projected) as per ordinary PI action Loe/ pension Care PSLA Question is: Lost years claim v. Fatal claim Caution required Heads of loss not presently available Statutory Claim for bereavement ( 12,980.00) Funeral expenses (Bateman v. Hydro Agri (UK) Ltd?) Damages for the loss of services during the lost years Loss of spouse/parent s care Disadvantageous differential in percentages of available income (Shanks v. Swan Hunter Group PLC (2007) EWCA 1807 QB) (50% / 67% standard in lost years) (67%/75% in fatal)-depends on deps. income Inheritance tax implications 13

14 Simple example Claimant earns 20,000 p.a. net. Spouse does not work/ does work ( 10,000 net pa) Multiplier of 10. LIVING FATAL Loss to death Same Same Bereavement nil 12,980 Future services nil 2.5k p.a. Funeral (nil) 3,750 Future Loe/FD 100, ,340 Spouse works 100, ,000 (L) 20,000 x 50% x 10 (S-NW) 20,000 x 66.67% x 10 (S-W) 30,000 X 66.67% - 10,000 X 10 Settlement-precludes FAA Claim? Settlement of a living claim precludes a FAA claim later Thompson v. Arnold (2007) EWHC 1875 A cause of action must exist at the date of death Usually even against different tortfeasors (Jameson v. CEGB (2000) 1 AC 455) Options Full & final Issue living claim, seek interim/ split trial but adjourn damages (some heads of damage?) Likely development Abolish lost years but FAA claim can be brought after death regardless of PI action concluding 14

15 Conclusions Mesothelioma claims have many advantages over other industrial injury / asbestos claims Fatal claims to be avoided only if Cl has no dependants. Fatal claims will usually have a higher value Often a living mesothelioma claim becomes a fatal claim 15

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