A lawyer’s response to the judgments that could herald a flood of low-level asbestosis claims
Judgment was handed down recently in two separate cases at Newcastle upon Tyne County Court, in which compensation was paid for breathing problems where asbestosis was shown to play only a small part.
The claimants – Gordon Beddoes (65) and William Cooksey (70) – were seeking damages for personal injury, allegedly caused by exposure to asbestos while they were working for the defendants, Vintners Defence Systems and Vintners Armstrong respectively.
The evidence for the injuries came from computed tomography (CT) scans, which found fibrosis of the lungs that had likely been caused by exposure to asbestos.
The symptoms experienced by the claimants were minor, amounting only to slight breathlessness, which would not on its own have led to the asbestosis being diagnosed.
In fact, the total respiratory disability for Mr Beddoes was estimated at 5%, of which just 1.6% was caused by asbestosis. The situation was similar for Mr Cooksey, with asbestosis accounting for 1.25% of a total 5% disability. His Honour Judge Walton found in favour of the claimants, awarding £11,375 to Mr Beddoes and £13,612 to Mr Cooksey.
The decision is significant for insurers as it allows compensation to be paid in cases where the injury is only identified by scanning technology, rather than as a result of the symptoms experienced by the claimant.
While some insurers feel that paying these “full and final” damages is preferable to potentially paying out larger sums for subsequent conditions, such as mesothelioma or life-threatening asbestosis, this is an illogical position as the amount of compensation paid is based on the probability of these conditions developing.
There is a real danger, however, that this case will lead to claimants seeking damages for previously undiagnosed conditions that are only picked up by speculative CT scans.
Before the decision was made against compensating pleural plaques in England and Wales, “scan vans” were known to pick up those with plaques (and unaware of it), and the same technique could now be used in low-level asbestosis cases.
Compensation should be paid where actionable harm has been caused, but many believe this should not be the case where the injury can only be identified by cutting-edge medical scanning.
David Pugh is a partner in the disease team at law firm Keoghs