Page 9 - PIC e-newsletter Spring Issue 8

Following the Court of Appeal decision in Williams v University of Birmingham [2011], the High Court found that the dust levels he was exposed to did not exceed the applicable threshold limits, which were published as guidance to employers by the Factory Inspectorate in a document named Technical Data Note 13 (TDN13).
The Claimant has appealed, citing other Court of Appeal authorities2 where it was held that employers were under a duty to reduce exposure to asbestos dust to the ‘greatest extent possible’, in line with guidance published before TDN13.
The Williams decision has meant that many cases have required both parties to instruct expert engineers
to determine whether the claimant’s exposure to asbestos dust breached standards set down over
the years. The experts’ fees as well as the time spent
by both parties addressing such arguments has led to increased costs and delays. If the Court of Appeal nds that Williams is good law, these arguments, delays and increased costs, look set to continue.
The uncertainty regarding breach of duty has led to more cases being defended. A clear determination
from the Court of Appeal in Bussey could assist the parties to reach earlier settlements, thereby reducing time and costs.3
Claiming the Costs of Immunotherapy
Immunotherapy has been hailed as the future for treating many types of cancer, including mesothelioma. It works by stimulating the immune system to speci cally target and destroy cancerous cells. It has been shown to improve survival rates and help treat symptoms when combined with chemotherapy and surgery.
Immunotherapy drugs are still in the trial phase and are not available on the NHS. However, for patients satisfying the criteria, they are available privately. The cost is approximately £8,000 per treatment and a patient can undergo more than thirty treatments overall, meaning the total cost can be signi cant.
Lawyers on both sides have been grappling with how to settle claims where the Claimant may be eligible for immunotherapy in the future. Additional expert evidence
is often required. However, because there is no way to know how the Claimant will respond to treatment until it starts, it is almost impossible to predict the total future cost. This makes negotiating a nal lump sum settlement very dif cult and can lead to a delay in settling these claims, with increased costs.
A small number of cases have been settled with Periodical Payment Orders (PPOs), which indemnify the Claimant for future treatment costs, but are only triggered once their treating doctor has con rmed immunotherapy is appropriate. PPOs are a potential solution, but even if they can be agreed in principle, they are complex and require careful negotiation, as well as input from experienced Counsel.
Ultimately, it is important that the costs of immunotherapy are claimed wherever appropriate to allow Claimants access to the most effective treatments.
The Future
The Show Cause procedure is an effective way of reducing costs in many mesothelioma cases and it should be used robustly.
In other cases, the developing state of the case law and the introduction of cutting edge treatments may continue to increase costs. However, these issues must be seen in context; the historic nature of the cases and the unpredictability of experimental treatments are a unique and unavoidable feature of mesothelioma claims.
Mesothelioma Claimants often only have months to live from their diagnosis and require signi cant care and support. Their lawyers must be able to pursue all available avenues to provide them with the compensation they are entitled to. It is welcome that Claimant lawyers have not been prevented from
doing so by wider restrictions to personal injury costs and hopefully this will continue.
Andrew Cooper is an Assistant Solicitor
in the Personal Injury Department at Leigh Day.
www.pic.legal Spring 2018
INDUSTRY EXPERTS
The exemption continues to this day, meaning mesothelioma Claimants can continue to keep 100% of their damages, whereas other PI claimants may not.
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