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01 November 2013

Strike Out / Summary Judgement Application by Defendants in Asbestos Case

The Claimant had been heavily exposed to asbestos dust whilst working for the Defendants between 1956 and 1972. In 2000 aged 64 he began to develop breathing problems. As is often the case he had many co-existent medical issues including severe chronic obstructive pulmonary disease caused by smoking. Latterly the Claimant had run a successful heating and plumbing business and because of his symptomatology he retired, spending half the year in Spain and the other half in Australia.

A CT scan in 2004 identified multiple bilateral calcified pleural plaques but in May 2010 a High resolution scan performed in Australia was reported as showing results which were “consistent with mild interstitial fibrosis and in this setting mild asbestosis”. He contacted my instructing solicitors in late 2012. In March 2013 they issued protective proceedings because of the treating practitioners report on the HR CT scan.
Somewhat unfortunately, when the Claimant’s respiratory expert reported on the medical reports available to him in April 2013 without having the opportunity of a clinical examination he opined:- “There is a mild degree of non-specific fibrotic type shadowing in the extreme lung bases ... it is not possible to make a clear diagnosis at this stage. Given the evidence stated above however there is a clear possibility that this could constitute the early stages of asbestosis. At present the mild fibrotic change in the lung bases is not likely to be causing any respiratory disability”.

Following this opinion the Claimant underwent another CT scan in Australia in May 2013 which suggested the fibrosis may be progressing slightly and it also showed a spiculated lesion in the left lung which raised the possibility of lung cancer.

In light of Rothwell  (asymptomatic pleural plaques) the Defendants seized upon the expert’s  statement and issued an application for strike out under CPR 3.4 or alternatively summary judgment under CPR 24. If the application succeeded it could have serious consequences for the Claimant and potentially for his solicitors who felt they had to issue proceedings but, as is often the case, found themselves falling between two stools.
The three county court cases which had considered whether symptomless asbestosis was compensatable  i.e.  Owen, Hirst and Beddoes gave varying decisions but suggested that mild asbestosis which was symptomless or without other damage that could be quantified in terms of some lack of function would not be actionable. Further, in Rothwell it was made clear by the House of Lords that the possibility of future symptomatology would not be sufficient to amount to a cause of action.

The Defendants’ case in the application was quite simple – the Claimant had failed to show an actionable injury because the expert was unsure of the diagnosis and was sure about the fact that there was no respiratory disability.

The Claimant’s case was argued on the basis that the expert had not had an opportunity to see the up to date records and his diagnosis was equivocal only because it was effectively a preliminary report. Although possibly symptomless there was a diagnosis of mild asbestosis from a treating practitioner and there were no higher court decisions on the compensatable nature of symptomless asbestosis which could be distinguished from pleural plaques because it can be a progressive condition.

The main thrust was that these factual and legal complications did not admit of and were not susceptible to summary judgment which, essentially, the Defendants were seeking.

The Defendants made a concession during the hearing that should the Claimant’s condition deteriorate and he did contract an actionable disease, they would not seek to argue that limitation had started to run in May 2010 when the Claimant first became aware of the diagnosis of mild asbestosis. Quite what the boundaries of such an extempore concession amounted to would have been cause for concern. The court’s attention was, for the sake of completeness, brought to the case of Preston v BBH Solicitors heard in the Court of Appeal in October 2011 in which mild asbestosis was sufficient to start time running.

The judge felt that to do justice he should give the Claimant another bite of the cherry, noting that there was some force in the argument that the expert’s report was preliminary and that there was a contrasting diagnosis as between the expert and the treating practitioner.

He noted that there was a limitation concession from the Defendants but that if the Claimant’s evidence was stronger in the future than it was at present there would be additional disproportionate costs in bringing the matter back to court. He adjudged that it would be too draconian a step to strike the matter out or enter summary judgment before the expert had a chance to say whether or not the Claimant was suffering from asbestosis or a form of disability which would sound in damages.

The judge gave the Claimant a further 6 months to provide a further report showing a material asbestos related illness otherwise the matter would be struck out. Costs of the application were reserved to a CMC post such a report becoming available.

Comment: The case clearly shows the tension between a diagnosis of asbestosis which probably is not sufficiently material to prove damage and the need to issue proceedings – the Claimant says that his treating practitioner said in 2010 “you are suffering from asbestosis”.  The concession given during the course of the hearing in respect of limitation had not been given prior to the matter going into court but, of course, the costs of the application were significant. More importantly the Claimant may, at the time of the hearing, have been suffering from asbestos induced lung cancer and he would have had no redress against the Defendants had the strike out succeeded and, bearing in mind his own evidence, possibly no redress against his solicitors. Symptomless asbestosis cases and symptomless pleural thickening cases will continue to present such dilemmas until higher courts or legislation intervenes.

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