Legal Watch - Disease - Issue 2

Legal Watch: Disease July 2015 Issue: 002

New research on smoking-related fibrosis and pulmonary asbestosis A recent medical study by Bledsoe, Christiani and Kradin, concluded that a history of smoking may be a more probable cause of pulmonary fibrosis than exposure to asbestos.

Until this study, respiratory physicians have been guided

In this Issue: • New research on smoking-related fibrosis and pulmonary asbestosis

by the Helsinki criteria when clinically and radiographically

• When a full and final settlement isn’t final

identifying pulmonary fibrosis as asbestosis, in the absence of

• Non budgeted surveillance costs still recoverable

any clear reasons to suspect an alternative cause. In turn, an

• Case Study: T v J L & Sons Ltd

existing diagnosis of asbestosis has traditionally been taken to be a reliable indicator that lung cancer should be attributed to asbestos exposure, even where there is a heavy smoking history. However, this study suggests that where a claimant is a heavy smoker, the smoking can actually cause fibrosis indistinguishable from mild asbestosis. This research may therefore offer a credible alternative diagnosis in asbestosis claims where there is a heavy smoking history. In turn, this will arguably impact on the clinical attribution of lung cancer to asbestos exposure in some cases.

The medical research The Bledsoe, Christiani and Kradin paper was published in the International Journal of COPD in December 2014.

In the introduction to the study, the researchers explain that the diagnosis of pulmonary asbestosis has both clinical and legal implications and is most often established on clinical grounds.

This is partly due to the high prevalence of mild disease that is encountered in practice, which typically does not warrant an invasive diagnosis. Radiographic findings play an important role together with exposure history, in establishing a diagnosis of pulmonary asbestosis. Computerised Tomography (CT) and high resolution CT might enhance sensitivity. However, CT scans cannot necessarily distinguish asbestosis from other forms of interstitial fibrosis, and in such cases only an examination of lung tissue can establish the diagnosis of asbestosis with accuracy.

Thanks to the Plexus Law London disease team for

their contributions and to Chris White of Acumen Costs for his article on surveillance costs.

One of the confounding features in the diagnosis may be

Only the 67 cases with tissue sections showing pulmonary

a history of cigarette abuse. Heavy smoking can produce

fibrosis unrelated to and distant from tumour were regarded

interstitial opacities on chest imaging as well as diffusion

as sufficient for evaluation.

defects on pulmonary function testing, the same criteria used in the diagnosis of pulmonary asbestosis.

The aim of this study was to examine the correlation of radiographically diagnosed asbestosis with a final diagnosis established by histopathological examination on biopsy.

All the cohort subjects had been referred for suspected asbestos-related malignancy in the context of litigation.

Findings All of the subjects in the study were referred for consultation regarding the role of asbestos as a causative agent of lung disease in the context of litigation. The study focussed on the accuracy of establishing a clinical diagnosis of asbestosis, particularly in the presence of alternative and potentially

The researchers examined the medical records, chest

confounding aetiologies of fibrosis such as smoking.

radiograph reports and pathology slides of 186 cases

Smoking alone can produce changes that mimic the

received from throughout the US. All the patients had reported asbestos exposure and were referred for asbestosrelated malignancy and the presence of pulmonary fibrosis.

One hundred and seventy-eight cases showed evidence of malignancy. Exposure data such as profession, years at the workplace and smoking histories were based on self-report.

The microscopic diagnosis of asbestosis was based on the

radiographic appearance of pulmonary asbestosis. Cigarette smoking is associated with well known pathologies such as emphysema and respiratory bronchiolitis. However, smoking also appears to predispose to the development of interstitial fibrosis, including idiopathic pulmonary fibrosis. Sub-pleural fibrosis has a characteristic histological appearance that can mimic that of asbestosis but it is likely to be attributable to

identification of one or more asbestos bodies in the setting

cigarette smoking.

of interstitial fibrosis of the pattern typically seen in asbestos-

The research found that of 24 cases judged to have

related pulmonary fibrosis. This was in accordance with the patterns and diagnostic criteria reported by Roggli et al and consistent with the Helsinki criteria, which requires the identification of asbestos bodies to make a definitive pathologic diagnosis.

Criteria used for the diagnosis of smoking-related interstitial fibrosis included a history of heavy smoking (>20 packyears) in addition to a pattern of interstitial fibrosis (IF) seen in smoking-related fibrosis associated with the presence of emphysema or respiratory bronchiolitis.

asbestosis

diagnosed

radiographically,

only

six

had

asbestosis confirmed after subsequent histopathology tests.

The remaining 18 cases (with an average smoking history of 53 pack-years) showed interstitial fibrosis that was judged to be most consistent with heavy smoking.

The study concludes that the clinical diagnosis of mild asbestosis cannot be reliably distinguished from interstitial fibrosis in heavy smokers. The findings suggest that the accuracy of a radiographic determination of mild asbestosis in the face of a concomitant history of heavy cigarette

Data from 174 men and 12 women were examined. The

smoking should be viewed with scepticism.

average age was 68 years. The primary sources of asbestos

The authors suggest that prospective controlled studies

exposure were occupational and the majority of the women reported secondary exposure through laundering their husband’s work clothes. The average duration of putative asbestos exposure was 27 years. A history of cigarette smoking was present in 126 of 143 patients with data available and the average cumulative dose was 46 packyears.

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are required to determine the accuracy of current clinical criteria for the diagnosis of pulmonary asbestosis in cigarette smokers. In addition, they recommend that the role of cigarette smoking as the causative factor of interstitial fibrosis should be examined.

Further debate The research paper has prompted further debate between medical experts in the International Journal of COPD in 2015. A letter from Sangani, Ghio and Parker suggests that it would strengthen the conclusions of the study to know if those diagnosed with asbestosis demonstrated a higher prevalence of pleural plaques than those with cigarette smoking-related fibrosis.

The Bledsoe et al authors’ replied confirming that pleural plaques were identified in 5/6 (83%) and 13/18 (72%) of those

The study concludes that the clinical diagnosis of mild asbestosis cannot be reliably distinguished from interstitial fibrosis in heavy smokers.

with and without histopathologic evidence of asbestosis, respectively. Their findings suggest that mild pulmonary fibrosis that is attributed to asbestosis on chest radiograph may not be reliably distinguished from other causes of IF, such as that related to smoking, including in patients with asbestos exposure and pleural plaques.

Commentary Further studies are recommended by the authors but the findings of this paper should certainly be borne in mind by defendants and their insurers, particularly in mild asbestosis claims where there is a history of cigarette abuse. This study should be used to question the claimant expert’s diagnosis in such cases.

Karen Scott

04

When a full and final settlement isn’t final Mrs Julien Lloyd (Executrix of the Estate of Cyril Charles Edward Lloyd Deceased) v Humphreys & Glasgow Limited

This decision of Mrs Justice Laing in March this year, together with the earlier decision of Judge Edis QC in Dowdall v William Kenyon & Sons Ltd & Others from August 2014, puts insurers at risk of facing claims for further damages for

asbestos-related disease, notwithstanding that there was

an earlier full and final settlement, if they were not a party to that settlement.

2013 the defendant’s solicitors were advised that the claim would not be pursued. The following month a third firm of

solicitors was instructed by the claimant to pursue a claim for mesothelioma. Proceedings were issued on 31 January

2014. The defendant disputed exposure and breach of duty

and raised the following defences which the court directed should be tried as preliminary issues: • Accord and satisfaction • Abuse of process

Background

• Limitation

Mr Lloyd was exposed to asbestos by a number of employers, allegedly including the defendant. During his lifetime he was diagnosed with the asbestos-related conditions of pleural

plaques, asbestosis and diffuse pleural thickening. Letters of claim were sent to a number of employers including the defendant.

• The accord and satisfaction defence was not pursued

by the defendant at trial and only abuse of process and limitation had to be determined by Mrs Justice Laing.

Abuse of Process The defendant argued that the proceedings were an abuse

Proceedings were issued in September 2011 against two employers,

to the defendant and other employers. However, in August

Ruthner

and

Babcock

Woodall-Duckham

and were settled soon after on a full and final basis, with

a contribution from a third employer, Bewley & John Ltd. Proceedings were not issued against the defendant at that time and it did not contribute to the settlement.

of process for the following reasons:

• Mr Lloyd had made a conscious decision to exclude the defendant from the first set of proceedings in

circumstances where it could have been included.

The claim against the defendant could have been

determined in the first set of proceedings, subject to

The claimant’s case was that proceedings were not issued

the final outcome of the Employers’ Liability Trigger

Employers’ Liability Trigger litigation and was refusing an

claims.

against the defendant because it was involved in the

litigation, as had happened with a number of other

indemnity in respect of claims for asbestos-related diseases.

• The court should adopt a robust approach to abuse of

This litigation was not determined until March 2012 when

the Supreme Court decided that Excess (and other insurers) were obliged to provide an indemnity for such claims.

process where there was successive litigation arising from long-tail disease claims. These claims usually involved long latency periods, multi-party litigation

Mr Lloyd’s condition was deteriorating at the time of the full

and problematic evidence gathering. A claimant

with probable mesothelioma. He died on 7 May 2012 and

against different employers in order to achieve finality,

and final settlement and in March 2012 he was diagnosed

should be prevented from bringing successive claims

the diagnosis was confirmed on post mortem.

fairness and a more efficient use of the court’s time and

Before he died Mr Lloyd instructed new solicitors to make a further claim for mesothelioma. A letter of claim was sent 05

resources.

• The defendant accepted that the doctrine of abuse

the outcome of that litigation, or alternatively proceedings

litigation against the same parties and that was not

outcome of that litigation. The solicitors acting for Mr Lloyd

of process was focussed on preventing successive the case here. However, permitting a second set of

proceedings would result in successive litigation for the

parties to the original settlement because the defendant would seek a contribution from these parties.

The claimant’s case was that she had a separate cause

of action against the defendant, which she was entitled to

pursue applying the principles derived from decisions such as Johnson v Gore-Wood (2002) and Dexter Ltd v Clive

Vlieland-Body & Others (2003). The defendant was not a party to the first set of proceedings and was not “vexed”

as the second set of proceedings did not involve unjust harassment or oppression.

Limitation The claimant’s case was that Mr Lloyd’s date of knowledge was not before 6 October 2008 when asbestosis was

identified on a CT scan and he had no knowledge of any actionable injury prior to that date (pleural plaques not being

actionable). The claimant accepted that Mr Lloyd had died

after the expiry of the primary limitation period and therefore asked the court to exercise its discretion to allow the case to proceed under section 33 of the Limitation Act 1980.

The claimant argued that the main reason for the delay was the defendant’s insurers’ refusal to meet claims for asbestosrelated disease prior to the decision of the Supreme Court in the Employers’ Liability Trigger litigation. The defendant’s

insurers were well aware of the claim and could have taken steps to investigate and were therefore not prejudiced by any delay on the part of the claimant.

The defendant’s case was that Mr Lloyd’s date of

knowledge was much earlier and not later than November 2004, by which time he was aware that he had symptomatic asbestos-related disease.

The claimant could not rely on the Employers’ Liability Trigger litigation to explain away the delay, as the claim

could have been issued and then stayed pending the at that time chose to simply do nothing.

The delay was further compounded by Mr Lloyd and the claimant pursuing a second claim and this claim being

abandoned, before being pursued again with new solicitors.

Breach of duty remained in issue and investigations by the defendant’s insurers had been prejudiced by this delay.

The decision Mrs Justice Laing recognised that permitting successive

litigation in long-tail disease claims raised difficult issues for insurers and employers and found the defendant’s submissions on this point “attractive”.

However, Mr Lloyd had a separate cause of action against each of his employers and on the facts of the case it was not an abuse to issue proceedings against some employers

and not the defendant, particularly given the position being

adopted by the defendant’s insurers at that time. The

defendant was not a party to the first set of proceedings and it was not an abuse for the claimant to pursue a second claim.

On limitation, Mrs Justice Laing accepted that Mr Lloyd’s

date of knowledge was not before October 2008. The claim was still statute barred and she had to exercise her discretion

under section 33 of the Limitation Act 1980. She accepted

that the principal reason for the delay was the position adopted by the defendant’s insurers in the Employers’

Liability Trigger litigation. Mr Lloyd’s solicitors could not be

criticised for not proceeding against the defendant when the first set of proceedings were issued in 2011.

The subsequent delay had not resulted in any prejudice to the

defendant as any forensic difficulty it faced in investigating this claim had arisen from the long latency period which had elapsed before the cause of action accrued. She therefore exercised her discretion to allow the case to proceed.

could have been pursued against the defendant subject to

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Comments The decision on limitation is case specific as it was based

on the conduct of the defendant’s insurers and Mrs Justice Laing refused to attach any criticism to the conduct of Mr Lloyd’s solicitors in failing to include the defendant in the first set of proceedings.

The decision on abuse of process reinforces the position

post Dowdall in permitting successive litigation against employers who were not party to a previous full and final

settlement. The outcome may be different if the claimant is unable to provide a satisfactory explanation as to why the defendant was left out of the first set of proceedings; in this case it was the decision of the defendant’s insurers to refuse

indemnity and in Dowdall it was because the defendants’ employers’ liability insurers had not been traced.

It remains to be seen whether a defendant in these circumstances can claim a contribution from the parties to the original settlement. In this case the defendant gave

notice that it intended to do so, but in Dowdall it was not

clear to Judge Edis whether any rights of contribution existed. This point remains to be determined and the parties to the original settlement will undoubtedly argue that

the contribution proceedings are an abuse of process. If a contribution claim cannot be pursued does this mean that

a defendant in these circumstances has a stronger case on abuse and prejudice when facing successive litigation? This issue may be re-visited in the future.

Steve Phillips

07

Non budgeted surveillance costs still recoverable The recent High Court decision in the case of Purser v Hibbs

This surveillance evidenced the claimant experiencing

and defendants as to recovering the costs of surveillance.

wheelchair. However, the surveillance also showed her visit

& Another provides much needed reassurance to insurers Surveillance

costs

have

long

been

recognised

by

defendants as a key weakness in the budgeting and costs

management process. Civil Procedure Rule 3.18 provides

difficulties at home through the use of crutches and a

a farm and ride her horse and act with physical ability. The surveillance evidence was subsequently disclosed and the claimant then accepted the Part 36 offer.

that when assessing costs on the standard basis, the court

The defendant was awarded costs post their Part 36

and “not depart from such approved or agreed budget

However, such costs were not within the defendant’s budget

will have regard to the budget of the party seeking costs

offer, which would include the third period of surveillance.

unless satisfied that there is good reason to do so.” The

and as such were not automatically recoverable.

not commission surveillance of a claimant or to do so and

Judgment

implication for defendants has been a stark choice to either run the very real risk that if costs are ultimately recovered, perhaps due to the surveillance, the surveillance costs could not be recovered with the defendant thereby left out of pocket.

The only way to guarantee recovery of the surveillance

costs was to include them in the defendant’s budget.

Indeed, this approach was supported by the White Book with a note suggesting that some allowance for surveillance should be expressly made in the budget. Understandably

this was not a viable option for defendants and their insurers

as the foreknowledge granted to the claimant would likely undermine any surveillance attempts.

The position has accordingly been very unsatisfactory and left defendants and their insurers in an invidious position.

Background The claimant sustained injury in a road traffic accident.

Liability was admitted in early course. Prior to court

proceedings, the defendant insurer conducted two periods of surveillance, neither of which gave rise to concerns as to

It was appropriate to stigmatise the claimant’s deceit by

directing that the defendant’s costs incurred since the expiry date of the Part 36 offer be assessed on the indemnity basis.

It was also appropriate to direct under CPR Rule 44.2 that the defendant should be allowed his reasonable costs of

the third period of surveillance, assessed on the indemnity basis, notwithstanding that those costs had not been listed in the costs budget.

The costs budgeting rules made no express provision for

what should be done with regard to the costs of surveillance evidence. Whereas most litigation was conducted on a “cards on the table” basis, some degree of cunning was required for the administration of surveillance evidence.

The court would not wish to do anything to discourage the judicious use of surveillance evidence, or to alert fraudsters to the use of surveillance. In that respect, the court differed

from the note in the current White Book which suggested that some allowance for surveillance should be made in a defendant’s costs budget.

the claimant’s veracity.

Commentary

The defendant advanced a Part 36 offer of £95,000, which

This decision reassures defendants and their insurers that

defendant then commissioned a third period of surveillance.

be excluded from a budget but the courts are prepared to

was rejected and court proceedings were commenced. The

if surveillance is deemed appropriate, it can quite properly

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permit such costs to be recovered from the claimant. This decision recognises the practical realities of the situation and that a defendant should not be penalised by an inability

to make recovery for legitimately obtaining surveillance of a claimant.

It is noteworthy that in this case the defendant’s costs

were to be assessed on the indemnity basis rather than

standard basis. Civil Procedure Rule 3.18 referred to above, seemingly only applies to assessments on the standard basis, though there are conflicting decisions on this point. In

similar circumstances defendants should seek their award

of costs to be assessed on the indemnity basis and in that way afford themselves two lines of argument to recover surveillance costs; namely that the budget cap does not apply and in the alternative there is good reason for it to be allowed.

Gemma Purser v Robert Hibbs & Anor [2015] EWHC 1792 (QB)

Chris White

09

Case Study: T v J L & Sons Ltd The

above

fatal

mesothelioma

claim

was

recently

discontinued by Messrs Leigh Day (“LD”) following a tortuous 2½ year litigation battle in the High Court. It serves as a timely reminder to both claimants and defendants alike, of the need to ensure that such a claim is founded on

evidence supportive of the key ingredients of an asbestos disease claim:

• the fact of exposure to respirable asbestos dust - in other words “how?”; and

• that such exposure was in breach of duty - in other words, “why?”

The Court of Appeal restated this message forcefully in 2007 in its decision in Brett v Reading University. However, as this case study demonstrates, even experienced asbestos

disease practitioners can become complacent; either that,

or they will take a calculated gamble by trying to slip such claims past the case management judges. The advent of

QOCS in non-mesothelioma claims will only encourage

such risk taking. Defendants must be vigilant in these circumstances. The playing-field may not be a level one, but the law of evidence has not been entirely supplanted yet.

Background The deceased died in 2010 in Canada, where he had

emigrated in 1973. He left no statement detailing where, when or how he had been exposed to asbestos. He had

served an apprenticeship with the defendant as a plant mechanic from 1965-69 and had retained his service

agreement from that time, which described the plant machinery he had worked on.

The evidence available to the claimant In the absence of supportive lay witness evidence, the widow

claimant sought to rely on expert evidence to make out her

retirement to assist. He considered the service agreement

and expressed the view it was likely “the deceased would have encountered asbestos-containing materials such as gaskets and brake-linings”, and that working with such

items “would likely have raised asbestos dust into his breathing zone”.

Dr Rudd, the claimant’s medical expert, then concluded

(following Deary) that this exposure had caused the

mesothelioma (there being no evidence of exposure elsewhere).

Finally, the deceased’s treating consultant in Canada noted

in the medical record that his patient had had asbestos exposure as a young man in England for 5 years “when he worked mechanic plant”, which was reasonably assumed to

be a reference to his apprenticeship as a plant mechanic. (In fact there were similar entries in the Canadian medical files recording possible exposure in a laboratory job in England

and later in a manufacturing job in Canada, although these were overlooked by Dr Rudd, and any exposure elsewhere was expressly denied by LD).

The pleaded claim LD alleged that the deceased inhaled “significant quantities of asbestos dust and fibres” while repairing plant machinery

for the defendant, but did not explain how this occurred,

how frequently, or in what concentration. The particulars of breach contained standardised allegations only.

In subsequent submissions to the court when seeking

summary judgment against the defendant, it became apparent that LD believed that because the defendant (a construction company) had been successfully sued in

the past by other asbestos-disease sufferers, the mere

appearance of its name on the deceased’s schedule of employers ought to be sufficient proof of culpability in this claim.

case. Peter Deary (forensic scientist) was lured from semi-

010

The defence and the discontinuance The principal submission by the defendant was that the evidence available to the claimant was insufficient to discharge the burden of proof on the issues of exposure

and breach of duty. The CA authority for this proposition, Brett v Reading University was cited, but the key was to

mount vigorous opposition to summary judgment at the

“show cause” stage, relying on the guidance of Sweeney J in HMRC v Silcock (2009).

One important element of this strategy was to serve early Part 18 questions, with the defence, urging the claimant to clarify the evidential sources behind the pleaded claim

and to explain the full context of the Canadian treatment

note relied upon. Equally important was the contention that the attempted use of expert evidence to fill the void in the factual case was a mis-use of expert evidence.

Finally, the claimant’s inability to meet court requirements to

serve credible supporting evidence found her in substantial breach of directions and requiring relief. That battle would

have provided an interesting benchmark of the court’s

current attitude to breach of orders, post Denton, but it was not to be; the decision was made instead to discontinue.

Mark Bush

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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, Surrey CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.