It’s nearly always shock news to a family when a coroner reports that it was probably mesothelioma – resulting from exposure to asbestos – which was the cause of death rather than an unspecified “industrial disease”. Recently, a North East Lincolnshire coroner’s office concluded that two of the six latest inquests into death from the incurable cancer – all aged in their 70s and 80s – were likely to have been caused by an unknown source of asbestos exposure.
When a coroner’s verdict does suggest that a cause of death was most likely to be ‘asbestos-related’, the family of the deceased victim may decide to start a civil mesothelioma claim to seek answers. But their case may encounter significant difficulties if the asbestos exposure victim was diagnosed with mesothelioma while at the same time suffering from other health conditions.
In one recent case, the deceased suffered from a long history of heart problems but had also been diagnosed with mesothelioma. Sadly, the victim was just 60 years old when he died from a heart attack. The employer did not challenge the assertion that the deceased had been exposed to asbestos at their workplace, which was responsible for the development of the victim’s mesothelioma. However, the defendant did dispute the amount of mesothelioma compensation to be awarded.
Issue of how much life expectancy had been lost
The court agreed with the claimant’s argument that it was the presence of the mesothelioma, which had prevented the victim from having heart bypass surgery, and from suffering a heart attack causing the premature loss of life. It was the issue of how much life expectancy that had been lost which formed the basis of the defence. While the claimant’s medical experts concluded there was a loss of 25.5 years – reduced to 19.5 years in respect of the victim’s other health issues – the defendant argued for a lower figure.
The court heard that rather than producing a life expectancy figure based on factors of ‘geography, social class and smoking’ among the ‘average’ UK population, instead data for the survival rate per year after a triple heart bypass should be used for calculating the amount of damages. Under this method, it was found that there was a 4 per cent real risk of a heart attack each year, which reduces the expected survival rate. However, after carefully considering how actuaries, lawyers and previous case judgments arrived at their final calculations, the court found in the claimant’s favour and accepted the claim for a loss of 19.5 years.
A further claim relating to the family loss of dependency on his help and support, and the care and support given to the victim before passing away was largely dismissed as this was ongoing before mesothelioma was diagnosed.
A clear and reasonable assessment of the additional work and care required
In a personal injuries claim, the two components generally considered when calculating a financial loss are based upon those incurred in the past and those determined to be incurred in the future. A claim for ‘loss of dependency’ is usually made by any individual who was dependent on the deceased for their financial wellbeing, which most often is the husband or wife and the immediate family who are entitled to any loss of dependency.
The courts decision on the level of care and support provided for a claimant before they developed mesothelioma will usually be based on a clear and reasonable assessment of the additional work and care required.
There is however, another layer of difficulty surrounding the connection between exposure to asbestos, cardiovascular function, and the increased risk of heart disease and stroke. Recently, researchers identified a “statistically significant occurrence” of mesothelioma linking to incidences of thrombosis.
A Health and Safety Executive related study, 2012 looked at around 100,000 workers employed in asbestos-using industries in the period, 1971 to 2005. The research revealed found that amongst the male workers, a majority of whom had been employed in the asbestos removal industry, “ …there was a 63 per cent increase in fatalities from strokes and a 39 per cent increase in deaths caused by heart disease”.
Whenever a civil claim for mesothelioma is entered where the victim also suffers from another health condition, clear expert medical advice will always be sought by the courts to determine the level of damages award.