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COMMENT AND DISCUSSION
Mesothelioma causation and compensation
There is, as we all know, an "asbestos epidemic".
"Occupational exposures to asbestos constitute a major health hazard in all industrialized countries of the world. Peto et al. (1999) predicted that deaths from mesothelioma among men in Western Europe would increase from just over 5,000 per year in 1998 to about 9,000 by the year 2018...When the various estimates from this and other studies are extrapolated to include the world population, they project that the asbestos cancer epidemic will cause 5-10 million deaths, past and present (Leigh 2001)..."
Should any claimant ever be refused compensation in the courts who has developed the occupational disease of mesothelioma? The first question to be asked for any mesothelioma claim and when considering causation must be whether "on the balance of probabilities" it is "more likely than not" that this claimant's mesothelioma was caused by asbestos exposure? It is not controversial to say that the Courts approach to causation has always been as below, by an example and as set out by Mr Justice Otton in Gaskill v Rentokil [reported QBD Lexis March 1994] when considering a pesticide Lindane exposure/injury and causation] :
1. Is [the substance] asbestos capable of causing mesothelioma in humans? ["generic causation]
2. Was the Claimant exposed to [the substance] asbestos? [circumstances]
3. If so, to what extent? [dose]
4. Did [the substance] asbestos cause this claimant's mesothelioma?
["specific causation"]
For the scientist and epidemiologist to establish causation [certainty and the burden of proof of 98%+] the Bradford Hill criteria are invoked :
Consistency
Specificity
Strength of association
Temporal relationship
Dose response relationship
Coherence of epidemiological evidence
Biological plausibility
All of these criteria are met for occupational asbestos induced mesothelioma. I would refer to a briefing note that was referred to at the time of the Fairchild "which fibre?" controversy in a House of Commons debate -
"The established way in which to deal with causation has already been decided by the world's medical profession in any disease case. It is the Bradford Hill criteria…All of these criteria are met in the case of asbestos induced mesothelioma and this has been accepted for many years. By the gold standard of the Bradford Hill criteria for 'cause' or aetiology for all disease and illness is defined. Asbestos exposure at work caused mesothelioma. Of that there is no doubt… The Court of Appeal has made a fatal error and has effectively usurped the established medical and scientific community approach as to cause and causation. The Court of Appeal has asked the question that the medical profession cannot answer—'which fibre?'. It is precisely because medical science cannot answer such a question that Bradford Hill is the gold standard. The Court of Appeal should have kept to the law and not muddied its decision by wrongly questioning the accepted basis of causation by seeking to identify the 'guilty fibre(s)'. This is simply not possible".
Thankfully this Court of Appeal decision was of course reversed by the House of Lords predominantly upon "policy" grounds so that claimants should not be denied their compensation. Going way, way back in history Paracelsus [1493 - 1541] provided us with the axiom "It is the dose that makes the poison" and this remains the "gold standard" of toxicology - the study of poisons.
Dr Robin Rudd, the leading medical chest physician and asbestos expert, has stated repeatedly in his medico legal reports/statements:
Causation of the mesothelioma. General comments. Mesothelioma is a rare tumour in persons who have not been exposed to asbestos, occurring with an annual incidence of around 1 per million population, and most cases occur in persons who have been exposed. Occasional spontaneous case unrelated to asbestos exposure do occur however. When there is a history of past asbestos exposure the balance of probabilities strongly favours that exposure having been responsible for a mesothelioma which occurs subsequently...Mesothelioma can occur after low level exposure and there is no threshold dose of asbestos below which there is no risk. However, the risk that mesothelioma will occur increases in proportion to the dose of asbestos received and successive periods of exposure each augment the risk that mesothelioma will occur… All employments involving asbestos exposure up to the point at which the growth of the tumour may be presumed to have commenced, i.e. about 10 years ago on average, before the onset of clinical manifestations, will have contributed to the risk that mesothelioma would develop…[and] should be regarded as having contributed to causation of the mesothelioma…all sources contributing to the risk he would develop mesothelioma in proportion to the dose of asbestos received ".
A recent settlement (December 2008) of H v MoD highlights perhaps an example of wasting Court time over this issue of causation. Despite the R&SA admitting liability and making an interim payment some months previously Defendant solicitors when instructed by the MoD and insurers considered reneging on this long standing concession. The issue of causation involved "quasi" or "mixed" asbestos exposures at HM Dockyard. It must be said that the MoD rarely dispute a dockyard worker claim and it is believed that there have been hundreds of compensation claims settled arising from the former Royal dockyards. In answer to a Freedom of Information request in 2008 the MoD stated that for Chatham Dockyard:
"We do not hold records going back to 1945…55 mesothelioma claims had been registered since 2001"
The defence was apparently of insufficient asbestos dust exposure as H (an employee at the dockyard himself and who had a limited number of his own occupational exposures to asbestos aboard ships and in the dockyard) was primarily exposed to asbestos in the 1950s - 1965 when visiting his father in the dockyard's asbestos mattress making "lagging shed" at lunchtimes. H had also been exposed to his father's work clothes as a child. All these exposures to dust on work clothes pre dated the "shake down" date of knowledge set in Maguire v Harland & Wolff 1965. His father was compensated by the MoD in the 1970s and he later died from asbestosis. His brother was also a dockyard worker and died from lung cancer.
However H had to attend a deposition hearing. His claim was settled on that same day the defendant making some in-roads into quantum only.
We should remind ourselves of the 1945 Chief HM Inspector of Factories letter "Asbestos" to all shipyards; the Affidavit [1984 H No 1288 RCJ QBD Hill V ICI ] of HM Factory Inspector Simpson Evans (working in Dockyards in 1940s) “Trying to adopt the most charitable view towards shipbuilding employers…they must certainly have known or should have known of the risk to health from asbestos dust in the air for their employees by 1945” and to the publication by P G Harries of the Medical Research Unit based at HM Dockyard, Devonport, 1971 "…Because the full extent of the hazard associated with asbestos was not appreciated adequate preventative measures were not introduced into Naval Dockyards until 1967 …Energetic measures have now been taken by MoD (Navy) to reduce the hazards associated with asbestos in Naval Dockyards…".
Also to the Owen v IMI Yorkshire Copper Tube judgment [Manchester]1995] as to occupational asbestos exposure in the 1950s -
“It is a matter of objective fact viewed even with the benefit of hindsight if the workplace was not safe the employer will be liable”. The dangers posed by asbestos were "sufficiently uncertain in their extent and effect, in the 1950’s, for employers to be under a duty to minimise exposure."
Also in Jeromson and Dawson v, Shell Tankers UK and Cherry Tree Machine Co. Limited :
"[a] reasonable employer, being necessarily ignorant of any future potential asbestos exposure, cannot safely assume that there will never be sufficient cumulative exposure". In an uncertain state of knowledge, the risk could not (in the words of Lord Upjohn in Czarnikow Ltd v Koufos 91969) 1 AC 350 be "brushed aside..."
However it is to the wider issue of inconsequential background incidence for mesothelioma that I wish to primarily direct this article for discussion. This article does not discuss the problems of getting "blood from a stone" when companies and insurers have disappeared. A somewhat old paper from 1984 states:
"Malignant mesothelioma is an uncommon, but increasingly important, neoplasm. The existing English-language medical literature concerning non-asbestos-related malignant mesotheliomas was reviewed for evidence of other agents associated with the induction of malignant mesothelioma. Both animal and human data were reviewed. In most reviews of malignant mesothelioma, there are a significant proportion of cases without documented asbestos exposure (range, 0% to 87%). Furthermore, there are several fairly well-documented agents other than asbestos that induce malignant mesothelioma in animals, and strong evidence exists that such is the case in man. In reviews of malignant mesothelioma, the percentage of cases with asbestos exposure varies, but a significant number are apparently not asbestos related. It is believed that sufficient evidence exists to suggest that non-asbestos agents can induce malignant mesotheliomas in man, and additional epidemiologic studies in this area are needed"
A paper by Ilgren and Wagner (1991) is further illustrative -
"Evidence is presented showing that mesotheliomas can have causes other than exposure to asbestos dust, in both experimental animals and humans. In experimental animals, for example, results from two major experimental laboratories suggest that at least 10% may be taken for background incidence, whereas a third laboratory suggests that the experimental group must have a rate exceeding 30%
"Background" also includes mesotheliomas found in association with nonfibrous and fibrous nonasbestiform agents. Mesotheliomas in humans can be broadly classified in a manner similar to those of experimental animals: (1) spontaneously occurring, (2) those with a latent period less than 10 years, (3) childhood mesotheliomas, (4) familial cases, (5) cases before the 20th century, (6) mineralogically negative mesotheliomas, and (7) mesotheliomas caused by nonasbestiform agents. The importance of the acceptance of these "background" cases lies in the fact that a basis is provided for the study of the incidence of disease associated with various types of asbestos" .
Another paper caused some consternation some years ago and concerned mesothelioma caused by another mineral substance other than asbestos: "Incidence of Malignant Pleural Mesothelioma due to Environmental Asbestos Fiber Exposure in the South East of Turkey". That paper perhaps with hindsight should not have been of any real consequence other than as confined to causation arising in Turkey!
The government's recently introduced Compensation Act 2006 introduced after the Fairchild debacle and Mesothelioma Lump Sum Payments (Conditions and Amounts) Regulations 2008 perhaps also address this issue of causation and add weight to the argument that causation is not in issue. The Mesothelioma Lump Sum Act now compliments the previous Pneumoconiosis Workers Compensation Act Scheme a "safety net" awards scheme for those unfortunate enough not to find an extant insurer or employer from whom to claim compensation through the courts. However the sums paid can hardly be described as generous for example a couple of thousand pounds to the widow of a deceased asbestos worker. Examples of current Meso. Lump Sum awards for dependents of 65 are £2,752 and over 67 £1,859. In 2002 Pneumoconiosis etc Act awards were £2,951 to a widow [65] and £1,992 [67 and over].
So in summary and discussion perhaps all that should be required by our courts to find causation proven is :
(a) a diagnosis of mesothelioma
(b) evidence from a claimant of asbestos exposure in the workplace.
Thus the "ducks in a row"? But this is not what happens and claims continue to be denied and resisted as to causation by Defendant solicitors and insurers alike. Should a defence as to causation still be justly; scientifically and medically maintained? Or is there in reality when applying a true "balance of probabilities" test burden no other cause for mesothelioma than asbestos exposure?
References:
1. "The Cost of Failure to Act" www.medscape.com/viewarticle/471144_6
2. "Dangerous per se" Alan Care - Law File/ Chemistry & Industry November 1998
3. Westminster Hall "Asbestos sufferers" debate as reported in Hansard 16 1 2002
4. "Asbestos dust concentrations in ship repairing : a practical approach to improving asbestos hygiene in Naval Dockyard" Ann. Occ. Hygiene Vol 14 pp 241-254).
4. Peterson JT Jr, Greenberg SD, Buffler PA. Cancer. 1984 Sep 1;54(5):951-60
5. "Background incidence of mesothelioma: animal and human evidence". Ilgren EB Regul Toxicol Pharmacol. 1991 Apr;13(2)
6. "Incidence of Malignant Pleural Mesothelioma due to Environmental Asbestos Fiber Exposure…" Senyigit et al Respiration Vol 67/6/ 2000
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