When a Coroner’s report delivers a verdict that the death of a loved one was caused by the vague term, “an industrial disease”, family members may feel dissatisfied that they have not been given an exact reason. The pain of their loss can lead to a sense of grievance and further distress if the family have a strong suspicion that the industrial disease was actually mesothelioma cancer, caused by occupational asbestos exposure.
An estimated 8,000 work-related cancer deaths are reported each year, of which, more than half are caused by past exposures to asbestos, according to the Health and Safety Executive (HSE). Latest available HSE figures from 2013 show that more than 2,500 annual deaths are the result of mesothelioma cancer, which is expected to continue for at least another 25 years.
Report is unlikely to be sufficient in itself
If the deceased suffered from more than one condition or complication, then it is not always so straightforward to determine the actual cause of death. When a Coroner concludes that mesothelioma was just one of several factors, the report is unlikely to be sufficient in itself if a mesothelioma claim is to be pursued from a former employer / insurer.
At a court hearing, it is commonly reported that during the peak years of Britain’s industrial asbestos use – from the 1950s up until the late 1970s and early 80s – there was little to no asbestos awareness in the workplace. Time and time again, employees recount that they received no health & safety information, nor protective equipment from employers .
A spouse or close family member may also recall conversations where the victim remembers the occasions where they were in contact with asbestos. However, the burden of proof is on the claimant to show they were exposed to asbestos in the workplace, which led to their mesothelioma. Consequently, wives or close family members try to find former work colleagues to help provide witness evidence of the presence of asbestos where they were employed up to thirty or forty years previously. However, further difficulties can arise where there was no known presence of asbestos.
Lung tissue samples…are key evidence
Where there is a suspicion that an industrial disease may have caused or contributed to a person’s death, under the Coroner’s Act 1988, it can be decided to investigate and report on whether the patient had died from ‘unnatural causes’. A Coroner gathers evidence from medical records, witnesses and police statements. It may be necessary to carry out a post- mortem examination of the body where samples of lung tissue are taken for analysis.
During the post-mortem, samples of tissue are usually analysed by a pathologist to arrive at a asbestos fibre count within the dried lung. Up to 30,000 fibres of asbestos per gram of dried lung is considered normal but where asbestosis disease is thought to be present, a minimum of 100,000 fibres at least needs to be found.
The results of the lung tissue samples, which provide analysis of asbestos fibre count, are key evidence in a mesothelioma compensation case. They describe the actual level of asbestos exposure as well as any breathing disability suffered by the victim, which also aims to show that “on the balance of probabilities”, that death was caused by exposure to asbestos.
It is vitally important, therefore, that the samples should be retained by the pathologist or at the hospital of the deceased. When samples are not retained, a defendant can argue that they did not have the opportunity to examine all of the evidence available and may even claim that vital evidence was deliberately destroyed. Increasingly, a Coroner will include on a tissue disposal consent form that a spouse or the family should not dispose of tissue samples when pursuing a claim.
Despite mesothelioma accounting for less than one per cent of all cancers, The British Journal of Cancer has stated that “Asbestos continues to be the cause of the largest proportion of the overall burden of occupational cancer.”