It is very unfortunate that this area of law continues to grow. Given the time periods between exposure and actual manifestation of the diseases the number of these cases are set to increase in years to come. There has been some uncertainty regarding reasonable levels of appropriate success fees and after the event insurance premiums in this area. Most recently there an industry agreement has been reached fixing success fees. The details are set out below.

 What sort of diseases are actually involved in these sorts of claims? The Occupational Diseases page explains more.

 Important Case Decisions

Fairchild -v- Glenhaven Funeral Services Ltd [2003]

In this case the Claimant had been exposed to asbestos whilst in the employment of more than one employer. The Claimant had faced the onset of mesothelioma, clearly linked with the exposure to asbestos, but it proved to be a near impossible to prove which employer should be held liable for the breach of duty. As both employers were found to be in breach of duty to prevent their employee from inhaling the asbestos fibres in the knowledge that there might be a risk to the employee’s health both employers were found to be liable to pay the Claimant’s claim for damages.

Find this case on BAILII. N.B. Search for the June 2002 judgment NOT the 2001 case.

John Grieves & Others -v- FT Everard & Sons, British Uralite PLC & Others [2005] EWHC 88

This case raised numerous questions over whether the incidence of pleural plaques and some exposure to asbestos fibres warranted an award of compensation. Levels of provisional and final damages were nevertheless reduced. It was argued by the Defendants that pleural plaques, thickening of the lung lining, were not actually a disease. It was also suggested that whilst their presence may be an indicator that a person has been exposed to asbestos in the past it could also be as a result of exposure to numerous other materials.

It was held that the presence of pleural plaques did not in itself constitute a cause of action. As such they were not considered to be a ‘disease’ or ‘impairment of physical condition’. The test as per Cartledge -v- E. Jopling had to apply. The psychological harm and anxiety caused by permanent penetration of the body by asbestos fibres and prospects of the onset of disease in the future did warrant an award.

The judgment gives a good brief guide to past asbestos related conditions, pleural plaques, asbestosis, mesothelioma and lung cancer.

Note - this decision was successfully appealed in January 2006. The lead appeal case in the judgment dated 26th January 2006 was Rothwell -v- Chemical & Insulating Co. Ltd & Anr [2006] EWCA Civ 27.

Find this case on BAILII.

 Fixed Success Fees

The Civil Justice Council announced on 1st July 2005 proposed fixed success fees in disease cases. The changes were incorporated into Part 45 of the Civil Procedure Rules on 1st October 2005.