Legal Watch:DiseaseJuly 2015Issue: 002

In this Issue:

• Newresearchonsmoking-relatedfibrosisandpulmonaryasbestosis

• Whenafullandfinalsettlementisn’tfinal

• Nonbudgetedsurveillancecostsstillrecoverable

• Case Study: T v J L & Sons Ltd

Thanks to the Plexus Law London disease team for their contributions and to Chris White of AcumenCostsforhisarticleonsurveillancecosts.

New research on smoking-related fibrosis and pulmonary asbestosisA 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 by the Helsinki criteria when clinically and radiographically identifying pulmonary fibrosis as asbestosis, in the absence of any clear reasons to suspect an alternative cause. In turn, an 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 researchThe 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.

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One of the confounding features in the diagnosis may be a history of cigarette abuse. Heavy smoking can produce interstitial opacities on chest imaging as well as diffusion 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.

The researchers examined the medical records, chest radiograph reports and pathology slides of 186 cases received from throughout the US. All the patients had reported asbestos exposure and were referred for asbestos-related 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 identification of one or more asbestos bodies in the setting of interstitial fibrosis of the pattern typically seen in asbestos-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 pack-years) in addition to a pattern of interstitial fibrosis (IF) seen in smoking-related fibrosis associated with the presence of emphysema or respiratory bronchiolitis.

Data from 174 men and 12 women were examined. The average age was 68 years. The primary sources of asbestos 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 pack-years.

Only the 67 cases with tissue sections showing pulmonary fibrosis unrelated to and distant from tumour were regarded as sufficient for evaluation.

FindingsAll 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 confounding aetiologies of fibrosis such as smoking.

Smoking alone can produce changes that mimic 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 cigarette smoking.

The research found that of 24 cases judged to have 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 smoking should be viewed with scepticism.

The authors suggest that prospective controlled studies 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.

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FurtherdebateThe 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 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.

CommentaryFurther 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

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

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When a full and final settlement isn’t finalMrs 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 wasanearlierfullandfinalsettlement,iftheywerenotapartytothatsettlement.

Background MrLloydwasexposedtoasbestosbyanumberofemployers,allegedlyincludingthedefendant.Duringhislifetimehewasdiagnosedwith theasbestos-relatedconditionsofpleuralplaques,asbestosisanddiffusepleuralthickening.Lettersofclaimweresenttoanumberofemployersincludingthedefendant.

Proceedingswere issued inSeptember 2011 against twoemployers, Ruthner and Babcock Woodall-Duckhamandweresettledsoonafterona full andfinalbasis,witha contribution froma third employer,Bewley& John Ltd.Proceedings were not issued against the defendant at that timeanditdidnotcontributetothesettlement.

Theclaimant’scasewasthatproceedingswerenotissuedagainst the defendant because it was involved in theEmployers’ Liability Trigger litigation andwas refusing anindemnityinrespectofclaimsforasbestos-relateddiseases.This litigation was not determined until March 2012 when the Supreme Court decided that Excess (and other insurers) wereobligedtoprovideanindemnityforsuchclaims.

MrLloyd’sconditionwasdeterioratingatthetimeofthefullandfinalsettlementandinMarch2012hewasdiagnosedwithprobablemesothelioma.Hediedon7May2012andthediagnosiswasconfirmedonpostmortem.

Before he died Mr Lloyd instructed new solicitors to make afurtherclaimformesothelioma.Aletterofclaimwassent

tothedefendantandotheremployers.However,inAugust2013thedefendant’ssolicitorswereadvisedthattheclaimwouldnotbepursued.Thefollowingmonthathirdfirmofsolicitorswasinstructedbytheclaimanttopursueaclaimformesothelioma.Proceedingswereissuedon31January2014.Thedefendantdisputedexposureandbreachofdutyand raised the following defences which the court directed shouldbetriedaspreliminaryissues:

• Accordandsatisfaction

• Abuseofprocess

• Limitation

• The accord and satisfaction defence was not pursued bythedefendantattrialandonlyabuseofprocessandlimitationhadtobedeterminedbyMrsJusticeLaing.

AbuseofProcessThedefendantarguedthattheproceedingswereanabuseof process for the following reasons:

• Mr Lloyd had made a conscious decision to exclude thedefendantfromthefirstsetofproceedingsincircumstanceswhereitcouldhavebeenincluded.Theclaimagainstthedefendantcouldhavebeendeterminedinthefirstsetofproceedings,subjecttothefinaloutcomeoftheEmployers’LiabilityTriggerlitigation,ashadhappenedwithanumberofotherclaims.

• Thecourtshouldadoptarobustapproachtoabuseofprocesswheretherewassuccessivelitigationarisingfromlong-taildiseaseclaims.Theseclaimsusuallyinvolvedlonglatencyperiods,multi-partylitigationandproblematicevidencegathering.Aclaimantshouldbepreventedfrombringingsuccessiveclaimsagainstdifferentemployersinordertoachievefinality,fairnessandamoreefficientuseofthecourt’stimeandresources.

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• Thedefendantacceptedthatthedoctrineofabuseofprocesswasfocussedonpreventingsuccessivelitigation against the same parties and that was not thecasehere.However,permittingasecondsetofproceedingswouldresultinsuccessivelitigationforthepartiestotheoriginalsettlementbecausethedefendantwouldseekacontributionfromtheseparties.

The claimant’s case was that she had a separate causeof action against the defendant, which she was entitled to pursueapplyingtheprinciplesderivedfromdecisionssuchas Johnson v Gore-Wood (2002) and Dexter Ltd v Clive Vlieland-Body & Others (2003). The defendant was not a party to thefirstsetofproceedingsandwasnot “vexed”as the second set of proceedings did not involve unjustharassmentoroppression.

Limitation Theclaimant’scasewasthatMrLloyd’sdateofknowledgewas not before 6 October 2008 when asbestosis wasidentifiedonaCTscanandhehadnoknowledgeofanyactionableinjurypriortothatdate(pleuralplaquesnotbeingactionable).TheclaimantacceptedthatMrLloydhaddiedafter 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 thedefendant’sinsurers’refusaltomeetclaimsforasbestos-related disease prior to the decision of the Supreme Court intheEmployers’LiabilityTriggerlitigation.Thedefendant’sinsurerswerewellawareoftheclaimandcouldhavetakensteps to investigateandwere thereforenotprejudicedbyanydelayonthepartoftheclaimant.

The defendant’s case was that Mr Lloyd’s date ofknowledgewasmuchearlierandnotlaterthanNovember2004,bywhichtimehewasawarethathehadsymptomaticasbestos-relateddisease.

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

theoutcomeof that litigation,oralternativelyproceedingscould have been issued and then stayed pending theoutcomeofthatlitigation.ThesolicitorsactingforMrLloydatthattimechosetosimplydonothing.

The delaywas further compounded byMr Lloyd and theclaimant pursuing a second claim and this claim beingabandoned,beforebeingpursuedagainwithnewsolicitors.

Breachofdutyremainedinissueandinvestigationsbythedefendant’sinsurershadbeenprejudicedbythisdelay.

The decision Mrs Justice Laing recognised that permitting successivelitigation in long-tail disease claims raised difficult issuesfor insurers and employers and found the defendant’ssubmissionsonthispoint“attractive”.

However,MrLloydhadaseparatecauseofactionagainsteach of his employers and on the facts of the case it was notanabusetoissueproceedingsagainstsomeemployersandnotthedefendant,particularlygiventhepositionbeingadopted by the defendant’s insurers at that time. Thedefendantwasnot aparty to the first set of proceedingsanditwasnotanabusefortheclaimanttopursueasecondclaim.

On limitation,MrsJusticeLaingaccepted thatMrLloyd’sdateofknowledgewasnotbeforeOctober2008.Theclaimwasstillstatutebarredandshehadtoexerciseherdiscretionunder 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’LiabilityTriggerlitigation.MrLloyd’ssolicitorscouldnotbecriticised for not proceeding against the defendant when thefirstsetofproceedingswereissuedin2011.

Thesubsequentdelayhadnotresultedinanyprejudicetothedefendantasanyforensicdifficultyitfacedininvestigatingthis claim had arisen from the long latency period which had elapsedbeforethecauseofactionaccrued.Shethereforeexercisedherdiscretiontoallowthecasetoproceed.

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Comments Thedecisiononlimitationiscasespecificasitwasbasedontheconductofthedefendant’sinsurersandMrsJusticeLaing refused to attach any criticism to the conduct of Mr Lloyd’s solicitors in failing to include thedefendant in thefirstsetofproceedings.

Thedecision on abuse of process reinforces the positionpost Dowdall in permitting successive litigation againstemployerswhowerenotparty toaprevious full andfinalsettlement.Theoutcomemaybedifferentiftheclaimantisunabletoprovideasatisfactoryexplanationastowhythedefendantwasleftoutofthefirstsetofproceedings;inthiscaseitwasthedecisionofthedefendant’sinsurerstorefuseindemnity and in Dowdall itwasbecause thedefendants’employers’liabilityinsurershadnotbeentraced.

It remains to be seen whether a defendant in thesecircumstances can claim a contribution from the partiestotheoriginalsettlement. Inthiscasethedefendantgavenoticethat it intendedtodoso,but inDowdall it was not clear to Judge Edis whether any rights of contributionexisted. This point remains to be determined and thepartiestotheoriginalsettlementwillundoubtedlyarguethatthecontributionproceedingsareanabuseofprocess.Ifacontributionclaimcannotbepursueddoesthismeanthata defendant in these circumstances has a stronger case on abuseandprejudicewhenfacingsuccessivelitigation?Thisissuemaybere-visitedinthefuture.

Steve Phillips

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Non budgeted surveillance costs still recoverableTherecentHighCourtdecisioninthecaseofPurser v Hibbs & Anotherprovidesmuchneeded reassurance to insurersanddefendantsastorecoveringthecostsofsurveillance.

Surveillance costs have long been recognised bydefendantsasakeyweaknessinthebudgetingandcostsmanagementprocess.Civil Procedure Rule 3.18 providesthatwhenassessingcostsonthestandardbasis,thecourtwill have regard to thebudgetof theparty seekingcostsand “not depart from such approved or agreed budgetunless satisfied that there is good reason to do so.” Theimplicationfordefendantshasbeenastarkchoicetoeithernotcommissionsurveillanceofaclaimantortodosoandruntheveryrealriskthatifcostsareultimatelyrecovered,perhaps due to the surveillance, the surveillance costscouldnotberecoveredwiththedefendanttherebyleftoutofpocket.

The only way to guarantee recovery of the surveillancecosts was to include them in the defendant’s budget.Indeed, this approachwas supported by theWhiteBookwithanotesuggestingthatsomeallowanceforsurveillanceshouldbeexpresslymade in thebudget.Understandablythiswasnotaviableoptionfordefendantsandtheirinsurersas the foreknowledge granted to the claimant would likely undermineanysurveillanceattempts.

Thepositionhasaccordinglybeenveryunsatisfactoryandleftdefendantsandtheirinsurersinaninvidiousposition.

BackgroundThe claimant sustained injury in a road traffic accident.Liability was admitted in early course. Prior to courtproceedings, the defendant insurer conducted two periods ofsurveillance,neitherofwhichgaverisetoconcernsastotheclaimant’sveracity.

ThedefendantadvancedaPart 36offerof£95,000,whichwasrejectedandcourtproceedingswerecommenced.Thedefendantthencommissionedathirdperiodofsurveillance.

This surveillance evidenced the claimant experiencingdifficulties at home through the use of crutches and awheelchair.However,thesurveillancealsoshowedhervisitafarmandrideherhorseandactwithphysicalability.Thesurveillanceevidencewassubsequentlydisclosedandtheclaimant then accepted the Part 36 offer.

The defendant was awarded costs post their Part 36 offer,whichwould includethethirdperiodofsurveillance.However,suchcostswerenotwithinthedefendant’sbudgetandassuchwerenotautomaticallyrecoverable.

JudgmentIt was appropriate to stigmatise the claimant’s deceit bydirectingthatthedefendant’scostsincurredsincetheexpirydate of the Part 36offerbeassessedontheindemnitybasis.It was also appropriate to direct under CPR Rule 44.2 that the defendant should be allowed his reasonable costs ofthethirdperiodofsurveillance,assessedontheindemnitybasis,notwithstandingthatthosecostshadnotbeenlistedinthecostsbudget.

Thecostsbudgeting rulesmadenoexpressprovision forwhatshouldbedonewithregardtothecostsofsurveillanceevidence. Whereas most litigation was conducted on a“cards on the table” basis, some degree of cunningwasrequired for the administration of surveillance evidence.The court would not wish to do anything to discourage the judicioususeofsurveillanceevidence,ortoalertfraudsterstotheuseofsurveillance.Inthatrespect,thecourtdifferedfrom the note in the current White Book which suggested thatsomeallowanceforsurveillanceshouldbemadeinadefendant’scostsbudget.

CommentaryThis decision reassures defendants and their insurers that ifsurveillanceisdeemedappropriate,itcanquiteproperlybeexcludedfromabudgetbutthecourtsarepreparedto

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permitsuchcoststoberecoveredfromtheclaimant.Thisdecision recognises the practical realities of the situation andthatadefendantshouldnotbepenalisedbyaninabilitytomake recovery for legitimatelyobtainingsurveillanceofaclaimant.

It is noteworthy that in this case the defendant’s costswere to be assessed on the indemnity basis rather thanstandardbasis.Civil Procedure Rule 3.18referredtoabove,seemingly only applies to assessments on the standard basis,thoughthereareconflictingdecisionsonthispoint.Insimilar circumstances defendants should seek their award ofcoststobeassessedontheindemnitybasisandinthatway afford themselves two lines of argument to recoversurveillance costs; namely that the budget cap does notapplyandinthealternativethereisgoodreasonforittobeallowed.

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

Chris White

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Case Study: T v J L & Sons LtdThe above fatal mesothelioma claim was recentlydiscontinued by Messrs Leigh Day (“LD”) following atortuous2½yearlitigationbattleintheHighCourt.Itservesas a timely reminder to both claimants and defendantsalike, of the need to ensure that such a claim is founded on evidencesupportiveofthekeyingredientsofanasbestosdisease claim:

• thefactofexposuretorespirableasbestosdust-inotherwords“how?”;and

• thatsuchexposurewasinbreachofduty-inotherwords,“why?”

TheCourtofAppealrestatedthismessageforcefullyin2007in its decision in Brett v Reading University. However, asthiscasestudydemonstrates,evenexperiencedasbestosdiseasepractitionerscanbecomecomplacent;eitherthat,ortheywilltakeacalculatedgamblebytryingtoslipsuchclaims past the casemanagement judges. The advent ofQOCS in non-mesothelioma claims will only encouragesuch risk taking. Defendants must be vigilant in thesecircumstances.Theplaying-fieldmaynotbealevelone,butthelawofevidencehasnotbeenentirelysupplantedyet.

BackgroundThe deceased died in 2010 in Canada, where he had emigrated in 1973. He left no statement detailing where,whenor howhe hadbeen exposed to asbestos.He hadserved an apprenticeship with the defendant as a plantmechanic from 1965-69 and had retained his serviceagreement from that time, which described the plantmachineryhehadworkedon.

TheevidenceavailabletotheclaimantIntheabsenceofsupportivelaywitnessevidence,thewidowclaimantsoughttorelyonexpertevidencetomakeouthercase.PeterDeary(forensicscientist)wasluredfromsemi-

retirement toassist.Heconsideredtheserviceagreementandexpressedtheviewitwaslikely“thedeceasedwouldhave encountered asbestos-containing materials such asgaskets and brake-linings”, and that working with suchitems “would likely have raised asbestos dust into hisbreathingzone”.

Dr Rudd, the claimant’s medical expert, then concluded(following Deary) that this exposure had caused the mesothelioma (there being no evidence of exposureelsewhere).

Finally,thedeceased’streatingconsultantinCanadanotedin the medical record that his patient had had asbestosexposureasayoungmaninEnglandfor5years“whenheworkedmechanicplant”,whichwasreasonablyassumedtobeareferencetohisapprenticeshipasaplantmechanic.(InfactthereweresimilarentriesintheCanadianmedicalfilesrecordingpossibleexposureinalaboratoryjobinEnglandandlaterinamanufacturingjobinCanada,althoughthesewereoverlookedbyDrRudd,andanyexposureelsewherewasexpresslydeniedbyLD).

The pleaded claimLDallegedthatthedeceasedinhaled“significantquantitiesofasbestosdustandfibres”whilerepairingplantmachineryfor the defendant, but did not explain how this occurred,howfrequently,orinwhatconcentration.Theparticularsofbreachcontainedstandardisedallegationsonly.

In subsequent submissions to the court when seekingsummary judgment against the defendant, it becameapparent that LD believed that because the defendant (aconstruction company) had been successfully sued inthe past by other asbestos-disease sufferers, the mereappearance of its name on the deceased’s schedule ofemployersoughttobesufficientproofofculpabilityinthisclaim.

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The defence and the discontinuanceThe principal submission by the defendant was that theevidence available to the claimant was insufficient todischarge the burden of proof on the issues of exposureandbreachofduty.TheCAauthority for thisproposition,Brett v Reading University was cited, but the keywas tomount vigorous opposition to summary judgment at the“showcause”stage,relyingontheguidanceofSweeneyJin HMRC v Silcock (2009).

One importantelementof thisstrategywastoserveearlyPart 18 questions, with the defence, urging the claimant to clarify theevidential sourcesbehind thepleadedclaimand to explain the full context of the Canadian treatment notereliedupon.Equallyimportantwasthecontentionthattheattempteduseofexpertevidencetofillthevoidinthefactualcasewasamis-useofexpertevidence.

Finally,theclaimant’sinabilitytomeetcourtrequirementstoservecrediblesupportingevidencefoundherinsubstantialbreachofdirectionsandrequiringrelief.Thatbattlewouldhave provided an interesting benchmark of the court’scurrentattitudetobreachoforders,postDenton,butitwasnottobe;thedecisionwasmadeinsteadtodiscontinue.

Mark Bush

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.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

ContactUsFor more information please contact:

Karen ScottKnowledge Management Lawyer

T:08442455235

E:Karen.Scott@Parabis.co.uk

Steve PhillipsPartner

T:08442455237E:Steve.Phillips@plexuslaw.co.uk

Chris WhiteSenior Costs DraftsmanT:08442454159E:Chris.White@plexuslaw.co.uk

Mark BushAssociate PartnerT:08442455254E:Mark.Bush@plexuslaw.co.uk

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