InsightsClient Story - Industrial Disease Claims - POSTED: December 12 2017
Asbestos compensation claim – mesothelioma not lung cancer
Grahame was a 63 year old former Chatham dockyards ships’ fitter from Gillingham who had been diagnosed with terminal lung cancer. Mesothelioma had been ruled out.
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Grahame was a 63 year old former Chatham dockyards ships’ fitter from Gillingham, Kent. He had been diagnosed with terminal lung cancer (non-small cell carcinoma). (Mesothelioma had been ruled out). This was suspected to be due to asbestos exposure when working for the Ministry of Defence at Chatham dockyards between the late 1960s and early 1970s. This included working on refits of HMS Valiant and HMS Warspite. However, he had also been a smoker. He was not thought to have mesothelioma. Grahame instructed us to make a compensation claim just a few days after he was diagnosed with asbestos-related lung cancer at Medway Maritime Hospital, Gillingham. His symptoms were already severe and we were concerned that Grahame might only have a very short time to live. Our lawyer (Jeremy) therefore made sure he saw him (with his daughter Sam) within days to take a full statement.
Jeremy saw Grahame on the last day before his (Jeremy’s) summer holiday to get detailed instructions for a statement, including his employment and asbestos exposure at Chatham dockyards and elsewhere and his medical history. He gave a history of unprotected and moderately heavy exposure to asbestos from working inside various ships and subs at Chatham dockyards. This came from both the stripping out and (to a lesser extent) making up of asbestos lagging at Chatham dockyards, especially on HMS Valiant and Warspite and the submarines HMS Alliance, Apossum and HMS Churchill and Conqueror.
Within days of Jeremy returning from holiday Grahame’s daughter, Sam called to give us the sad news that Grahame had just died due to the lung cancer. We therefore now continued the claim for Grahame’s two daughters, Sam and Amanda, as his next of kin/ administrators of his estate. A full unsigned written account of Grahame’s evidence was prepared alongside statements from Jeremy and Sam to confirm Grahame’s hearsay evidence about his employment/asbestos exposure history at Chatham dockyards/elsewhere. This was supported by a statement we were able to get from Grahame’s foreman at Chatham dockyards and his ex-wife. They confirmed what they knew of his employment and asbestos exposure as a ships’ fitter at Chatham dockyards. We prepared a schedule of losses. We then sent a detailed letter of claim seeking compensation for asbestos-related lung cancer from the Ministry of Defence (MOD).
Because Grahame was a divorcee, who lived on his own, the compensation that could be claimed for his family for asbestos-related lung cancer quite limited. Very unfairly the law does not allow compensation claims for bereavement damages by a victim’s children. The claim was therefore limited mainly to compensation for his condition before he died, a small amount of assistance, travel and modest funeral costs.
The post mortem report confirmed Grahame had died from lung cancer (non-small cell metastatic carcinosarcoma). Only one asbestos body was found and no asbestosis. There was no suggestion he had been suffering from mesothelioma. The verdict was death by natural causes of lung cancer rather than by industrial disease; unhelpful to an asbestos compensation claim.
Despite the verdict, we obtained an independent chest consultant’s report based on the medical records. The consultant confirmed that Grahame had probably been suffering from lung cancer which caused his death. He also thought on the balance of probabilities Grahame’s asbestos exposure as a ships’ wright at Chatham dockyards had doubled his risk of suffering lung cancer from smoking alone. This was enough to say that his asbestos exposure at Chatham dockyards caused his lung cancer. However, he had not suffered from asbestosis and few asbestos bodies were found. Therefore our consultant’s conclusion rested on our proving that Grahame had been exposed to quite a high level of asbestos exposure, including the more hazardous amosite “brown” asbestos (not just white). As a rule of thumb, this required moderately heavy exposure for 5 to 10 years. This was where Grahame’s claim ran into real difficulties.
At the time we were instructed the Revenue were taking the view that they could not disclose a deceased asbestos victim’s employment history without a court order. This delayed our obtaining Grahame’s record by many months. When we eventually received it, long after Grahame had died, it turned out his employment record did not fully match with what Grahame had told us. His employment at Chatham dockyards was shorter than he remembered. This threw into real doubt whether Grahame had had enough asbestos exposure at Chatham dockyards to be capable of causing lung cancer.
The MOD decided that they would get medical evidence of their own on the lung cancer. They instructed the leading asbestos-disease chest consultant, Dr Robin Rudd, as well as a pathologist from Cardiff University, Dr Attanoos. We gave them access to Grahame’s lung tissues that had been retained by the post mortem pathologist.
There was a lengthy delay of many months on the defendant’s side for their medical evidence for which we periodically chased. Chasing was all we could do because, given the state of the evidence we now had, we could no longer say they were prospects of success. We were in the hands of the medical experts.
Eventually, we received the report of Dr Attanoos, advising that the original pathologist and other doctors had all got the diagnosis/cause of death wrong. His further tests had established the Grahame had probably had a somewhat unusual form of mesothelioma and not ordinary lung cancer (carcinoma). Since it only takes one fibre of asbestos to cause mesothelioma he accepted the mesothelioma had been caused by his exposure to asbestos. (He also suggested that Grahame might have been suffering from asbestosis)
There was then a further delay while the MOD’s loss adjusters sought confirmation of the mesothelioma diagnosis from Dr Rudd.
Eventually, the MOD made an offer for the claim of £66,000, including £60,000 general damages compensation for mesothelioma. We considered that a little too low for mesothelioma and advised the family to press for more compensation. We, therefore, counter offered £71,000 but this was rejected by the MOD. The clients decided they would take the compensation offer of £66,000 for their dad’s mesothelioma rather than fight on.
Grahame’s daughters, Sam and Amanda, commented:
We just wanted to personally thank you for your determination and support over dad’s case. We know it’s not been the easiest case and has gone on for a while – however without your help we would have never have known the real cause for his death. It proves he was right all along and you have continued to fight his corner for him and we sincerely thank you for that.
This Chatham dockyards mesothelioma compensation claim was dealt with by Jeremy Horton. He is a Solicitor and Partner in the firm, specialising in mesothelioma and other asbestos compensation claims in Kent, Medway, Essex & beyond. Jeremy is passionate about helping asbestos disease victims and their families achieve fair compensation as quickly as possible. He is the only APIL Accredited Occupational and Asbestos Disease Specialist solicitor in Kent, Medway, Essex, Surrey or Sussex. Jeremy can be contacted on 01622 680415 or at JeremyHorton@brachers.co.uk.
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