No class of claim in Personal Injury litigation has been so bitterly fought over between claimant and defendent that mesothelioma, writes Jon Robins


It has now been more than five years since the Law Lords handed down the landmark Fairchild v Glenhaven [2001] EWCA Civ 1881 judgment, overruling an attempt by the insurance industry to prevent thousands of victims of asbestos cancer from receiving compensation if more than one employer exposed them to the deadly dust. In what was billed as the most important occupational disease case ever, insurers argued that responsibility could not be shared between them because cancer was an ‘all or nothing’ condition.



In personal injury litigation, no class of claim has been so bitterly fought over between the claimant and defendant than mesothelioma, which is the worst kind of disease that arises from exposure to asbestos. Mesothelioma is fatal. Death is agonising and comes with brutal speed – on average between 18 months and two years. This time last year, it seemed as though employers and their insurers were on the brink of succeeding where Fairchild failed, despite appearing to execute a complete U-turn in reasoning by contending in the case of Barker v Saint Gobain Pipelines Plc [2004] EWCA Civ 54 that if there was more than one employer, compensation should be split between all.



This time, however, the Law Lords were not there to help out the mesothelioma sufferers. Instead they ruled that sufferers would have to seek damages from each of their former employers proportionate to the level of exposure to asbestos dust. Instead, it was left to government ministers to step down from the sidelines, alarmed that many sufferers and their families would find it near impossible to get proper compensation. Lord Falconer, the Lord Chancellor, speedily slotted in a new clause to the then Compensation Bill ‘to provide that in these cases negligent employers should be jointly and severally liable’.



It was a novel legislative solution that won the admiration of campaigners, trade unions, sufferers and their families, and no small amount of bemusement from those following the passage of the legislation – the main focus of which was defeating the worst excesses of the so-called compensation culture. Insurance lawyers expressed concern about a hastily cobbled-together piece of legislation that did not really think through the implications of a retrospective law, arguing that the government’s response to the ‘tragedy’ was in danger of creating unfairness towards insurers. The feeling was that ministers had decided in effect that, if injustice could not be avoided, it was better it fell on employers rather than employees.



The Compensation Act 2006 now effectively provides that negligent employers should be jointly and severally liable, so that the claimant can recover full compensation from any employer. So has it resolved the issues for claimant lawyers and their clients? ‘I would not put it quite as neutrally as that,’ says Ian McFall, head of asbestos policy and manager of the national asbestos team at trade union firm Thompsons. ‘It was “resolved” as a result of a campaign involving everything that I feel is great and good about trade unions, the labour movement and claimant specialist law firms. The government deserves great credit for acting swiftly and decisively in reversing the House of Lords decision in Barker.’



It is thought that about 2,000 people die every year from mesothelioma, and that number is expected to peak between 2011 and 2015. According to a report published in February by Julian Peto, the Cancer Research UK chairman of epidemiology at the London School of Hygiene and Tropical Medicine, Britain has the highest rate of the disease in the world and an estimated 60,000 people will die from mesothelioma in Britain. Asbestos was used as insulating material in building, mining and as lagging on boilers. ‘It is not a trivial risk – about one in 1,000 people seem to get mesothelioma with the absence of any direct exposure,’ Mr Peto says.



Last month, John Hutton, Secretary of State for Work and Pensions, announced proposals to provide faster compensation to all people diagnosed with mesothelioma. Currently, only those who contract the disease from exposure to asbestos at work are eligible to claim a lump sum– about £17,000 on average – from the state under the Pneumoconiosis etc (Workers’ Compensation) Act 1979. The proposals would extend upfront financial support, to be paid within six weeks, to all sufferers whether they have been exposed to asbestos when washing their partner’s overalls, living next to a factory or even if they cannot trace exposure.



Thompsons was involved in the first asbestos claim to go to court and through to the House of Lords back in 1972 (Smith v Central Asbestos Co Ltd [1972] 1 QB 244). The firm has 32 lawyers dealing with 3,000 asbestos-related cases, including 650 mesothelioma claims. Despite the efforts of the government, there is little complacency on the part of those lawyers that specialise in representing the victims of mesothelioma.



Mr McFall says: ‘We still consider that the only effective way of obtaining proper levels of compensation for sufferers and their families is to pursue a policy of assertive litigation. We haven’t noticed any general willingness on the part of the insurance industry to deal with claims any more efficiently than they may have done in the past.’



He pays tribute to Master Whitaker’s fast-track system for mesothelioma cases in the Royal Courts of Justice.



Simon Cradick, a partner at the Cardiff office of Morgan Cole, specialises in advising insurers on occupational disease claims. About the Hutton announcement, he says: ‘You cannot dispute the principles behind what has been suggested in terms of dealing with living mesothelioma claimants. [It is] giving the victims compensation where it is appropriate, in time for them to make use of it and to have the knowledge that their families are provided for. I don’t think that you would find any defendant lawyer who didn’t think that this was not appropriate.’



However, Mr Cradick does question the ‘justification for introducing a fast-track procedure after the individual has sadly died’. He asks: ‘Once he has passed away and no claim has been issued, is there still any justification for saying that there should be an expedited procedure for the mesothelioma victim, as opposed to any other person who has died from a fatal injury or accident?’



Mr Cradick adds that defendant lawyers treat mesothelioma cases differently ‘because of the impetus behind them to sort them out’. He explains: ‘Because of the state of the law at present, it’s difficult to defend these claims once it is established that there was exposure to asbestos during the course of employment. It is difficult for an employer to argue that there is no breach of duty. The courts are willing to find on the part of the claimant, even in modest exposure, because of the nature the illness.’



However, he remembers a case where an insurer faced a claim from a worker with significant exposure to asbestos in the army but ‘very marginal exposure’ with his client. He says: ‘The argument was that the level of exposure was minute and wouldn’t have materially increased the risk, and he couldn’t sue the Ministry of Defence because of Crown immunity.’ In that case, the claimant ended up with no compensation.



Anthony Coombs has been representing sufferers for 20 years and recently set up practice by himself after leaving John Pickering & Co. He describes himself now as a ‘mesothelioma lawyer’. He says: ‘I think these cases are the most deserving and the most interesting.’ The solicitor believes that clients suffering from such a tragic condition deserve specialist services. Lawyers in bigger firms are ‘driven by getting as much work as they can and nearly all of them end up with more work than they can do,’ he adds.



‘What happens is that they expand, there are more mouths to feed and they need more work. I don’t think that the model is necessary the right one, especially when you are doing this sort of work. You actually don’t want that amount of work.’



Mr Coombs is also concerned about generalist practices letting down cancer victims. ‘You only get one go at this,’ he says. ‘You get the statement from the victim and often he’s dead within three or four months. So if it is not taken properly, the damage is done.’ His clients come from backgrounds such as carpentry, plumbing and electrical work, ‘not so much traditional factory workers because people who worked in asbestos factories have, on the whole, died’.



Mr Coombs reflects a widespread concern about plans to introduce a pre-action protocol, as flagged up by John Hutton at a recent mesothelioma summit. Claimant lawyers fear that this will present defendants with another opportunity to bring challenges. ‘The way that protocols work is that they’re seen as an opportunity for the parties to get their heads together and settle a case without recourse to litigation,’ Mr Coombs says. ‘In the case of mesothelioma, I think this is a totally unrealistic aspiration. My experience over the past 20 years suggests that it is just pie in the sky. It has never happened before and it never will.’



It is a view shared by Tony Whitson of the Greater Manchester Asbestos Victims Support Group. If a protocol binds parties to a timetable of three months, which could be extended, and bars them from litigation during that period, he believes insurers will push for three months. ‘At the moment a claimant solicitor can issue proceedings and drive the process, because the real driver is the threat of litigation,’ he says.



Mr Whitson has just returned from visiting someone recently diagnosed with mesothelioma who has been given two days to live by his doctor. ‘That is an extreme example, but it emphasises the real issue that people don’t live long,’ he adds. ‘And three months can be way too long. For this man, two days was too long.’



Adrian Budgen, a partner at national claimant firm Irwin Mitchell, who specialises in asbestos-related cases, is deeply concerned that, despite the Compensation Act, defendants are mounting more Fairchild-style challenges.



He says that some insurers are challenging the wording of employer’s liability insurance contracts, contending that ‘there is scope for them to argue that those insurers, which are insurers at the time the disease manifests itself, should be liable rather than the insurers at the time exposure took place’.



Does it matter? ‘A lot of companies have gone out of business in between, so you end up with a potentially worthless defendant and that creates all sorts of problems,’ Mr Budgen says. His firm is representing the lead case on that point in a trial expected to start later in the year. ‘It comes on the heels of the Compensation Act and, frankly, beggars belief,’ he adds.



Mr Budgen has represented a number of mesothelioma sufferers in ground-breaking cases, notably June Hancock, whose only exposure to asbestos was playing on the streets close to the JW Roberts asbestos factory in Leeds. She successfully sued the owner, Turner & Newall. Previously, mesothelioma claims had only been work-related. He also specialises in acting for smokers with mesothelioma. He says: ‘There is a nasty synergy between the inhalation of asbestos and cigarette smoke. If you are an installation worker and you’re a smoker, the chances of developing lung cancer are very, very high – 55 times the norm.’



Mr Budgen also acted for the widow of an entrepreneur who started work as a 15-year-old butcher’s boy and built up the world’s biggest tyre retread firm from scratch – she won a record £4.4 million in compensation.



But what does compensation mean in cases as tragic as mesothelioma? ‘It seems to me that everybody I meet on a professional level is dying or has just been bereaved,’ says Mr Coombs. ‘Money doesn’t put it right. All I can do is get them some money as quickly as possible, and in some cases that might just take the edge off what they might have to go through. But it doesn’t solve anything nor does it put it right.’



The ‘first and foremost issue’ is that a person is facing their ‘imminent demise’, according to Mr Whitson, and they want their families and their soon-to-be widows to have some financial security. ‘That is the sufferer’s main concern,’ he says. ‘They really aren’t thinking of themselves – they may never get the chance to spend it and it is really of no use to them in most cases. But at least they can die with the knowledge that something is being done.’



He also believes that for the wider family, compensation has significance beyond that. ‘For them, compensation stands in as some kind of acknowledgement that a wrong has been done,’ he says. ‘It isn’t in the form of an apology, because that never would be forthcoming, but it does represent some kind of acknowledgement that what has happened cannot pass unnoticed.’



Jon Robins is a freelance journalist