Update: personal injury and clinical negligence

Asbestos exposure and lung cancer

In Shortell v Bical Construction Ltd [2008] QBD (Liverpool) the court held that asbestos exposure materially increased the risk of lung cancer in someone who had previously smoked but did not appear to have asbestosis.

The deceased (S) was employed by the defendant as a jointer and worked inside power stations where he described being frequently in the vicinity of laggers working with asbestos.

S, who smoked for many years but had given up 20 years before, died after developing lung cancer. There was no post-mortem and no histopathological evidence. Radiological data revealed pleural thickening and pleural plaques but no asbestosis.

The case went to trial because the defendant and claimant's engineering experts disagreed on the level of exposure.

At trial, Mackay J preferred the claimant's engineering evidence which estimated S's lifetime asbestos exposure as 99 fibre/ml years.

He then considered whether this was sufficient to double S's risk of developing lung cancer which would establish causation for the claimant.

Mackay J noted both parties' medical experts agreed the following: (1) asbestos and smoking are established risk factors, (2) the risk increases in approximate proportion to the amount of asbestos and tobacco inhaled, (3) asbestos has a multiplicative effect on the risk of smoking, (4) opinion indicates lung cancer resulting from asbestos is not restricted to those with asbestosis, (5) according to the 1997 Helsinki criteria, 25 fibre/ml years cumulative exposure is sufficient to establish a causal link however this assumes exposure to a substantial proportion of amphiboles (which are the more harmful types of asbestos fibres) and if someone is exposed to chrysotile (a less harmful although not harmless variety) this figure should arguably be higher, (6) 25 fibre/ml years approximately doubles the risk and (7) an exposure of 99 fibre/ml years increased his risk about five fold which when multiplied with S's estimated risk from smoking, meant that asbestos exposure was responsible for about 80 per cent of his total risk.

The medical experts therefore agreed asbestos exposure more than doubled S's risk of lung cancer.

Mackay J also considered epidemiological evidence. Both parties' experts agreed the Helsinki criteria failed to account for exposure to different types of asbestos. In any case however, both considered the risk was greater than doubled.

In finding causation, the judge held that once he had accepted there was lifetime exposure of 99 fibre/ml years, it followed this more than doubled the risk of lung cancer.

Mackay J then considered whether S was contributorily negligent in smoking. He found S was at fault in continuing to smoke after the mid-1970s when there was greater awareness about the dangers of smoking. He assessed this contribution without reference to any mathematical basis as suggested by the experts and considered a general reduction of 15 per cent to be 'just and equitable'.

Calculation of interest in dependency claims

In A Train & Sons Ltd v Maxine Emma Fletcher [2008] EWCA Civ 413, which is another case involving asbestos exposure where an employee died following diagnosis of mesothelioma (cancer of the lining of the lungs caused by asbestos), the defendant appealed a ruling that the employee's widow (M) was entitled to interest at the full rate not only on her claim for financial dependency between the date of death and trial, but also on her future losses.

The Court of Appeal allowed the appeal and held the trial judge was bound by Cookson v Knowles [1979] AC 556. He should not have exercised his statutory discretion under s 69 County Courts Act 1984 because the principle in Cookson was clearly defined and 'left no room for doubt'. Post-trial losses were future losses by their nature meaning adding interest was inappropriate. Also, an award of more than half the interest rate resulted in over compensation.

M raised a further issue regarding the use of multipliers as at the date of death for both pre and post-trial losses. M argued this usually resulted in under compensation. However, the court considered the House of Lords would be the appropriate forum to consider this issue.

Pre-action disclosure of medical records

In OCS Group Ltd v Davina Wells [2008] EWHC 919 (QB) it was held correct not to order pre-action disclosure of medical records.

The respondent (W) injured her back during her employment with the appellant (O). After O admitted primary liability, there was delay in W obtaining a medical report. O was concerned that her loss of earnings continued to accumulate and it had not received a medical report or schedule. Therefore,

O sought pre-action disclosure of the medical report and W's medical records under CPR 31.16 and 31.6.

The medical report was considered privileged and not disclosable. In addition, the judge concluded he had no jurisdiction to order disclosure of medical records. It was too early to establish their relevance and determine if they would adversely affect either party's case. Also, they were private records protected under ECHR articles 8 and 8(2).

O appealed the decision regarding medical records (not the medical report).

Nelson J considered O and W were likely to be parties in proceedings: CPR 31.16(3)(a) and (b) satisfied. He disagreed the records were not relevant pre-issue as it was necessary under CPR 31.16(3)(c) to consider what would become disclosable during

proceedings. CPR 31.6 required a similar approach. The records would subsequently either dispute or verify the existence or extent of W's injuries and their effects. They were also relevant as W was claiming reduced earning capacity: CPR 31.16(3)(c), 31.6(a) and (b) satisfied.

However, CPR 31.16(3)(d)(i) and (ii) were not satisfied because such disclosure was not considered 'desirable' to fairly dispose of prospective proceedings or promote settlement without court action.

The records may contain information which the claimant finds upsetting or embarrassing. Information within them may have led W to withdraw or limit her claim. It would also be difficult for W to determine which damages she ought to claim until a medical report had been prepared. The content of the records may have created further dispute thereby increasing the likelihood of proceedings and not saving costs.

Finally, it was considered undesirable to disclose private records because if they were relevant to but of no value in the action and played no part in resolution, then personal records would have been disclosed in circumstances where W had not consented and where there was no benefit.

Dicta in Bennett v Compass group UK & Ireland Ltd [2002] preferred: While a claimant should be prepared to disclose his/her medical records, he/she should only do so 'at the appropriate time and to the appropriate people'.

Therefore, it was held correct not to order disclosure of the medical records (albeit on different grounds) and the appeal was dismissed.

Clinical negligence

In Stephen Oakes v Dr P Neininger, Dr M Brown and Greater Manchester Ambulance Service [2008] EWHC 548 (QB), the High Court (Akenhead J) considered whether two general practitioners and two ambulance crews had been negligent in their management of the claimant's cauda equina syndrome. The claimant, who had a history of back pain, visited his GP, Dr Neininger, with worsening back pain, and the GP simply prescribed anti-inflammatory and analgesic medication. The next day, the claimant had difficulty urinating and his wife called the GP out-of-hours service. Unable to secure a GP, she called the first ambulance, which arrived at 4:46am, diagnosed sciatica and facilitated a GP call-out. Dr Brown arrived at 6:32am, also diagnosed sciatica and prescribed painkillers and tranquilisers. A second ambulance crew was called out and arrived at 9:30am but they did not recommend that the claimant attend hospital. The claimant fell asleep and became incontinent some time between 11:30am and 2:30pm. He was eventually urgently referred to hospital at 9:25pm, underwent an emergency MRI scan, and then decompression at about 11:30am the next day.

The High Court concluded that Dr Neininger had been in breach for failing to advise the claimant of the symptoms of potential cauda equina syndrome and to take prompt action. The first ambulance crew were held not to have been in breach. The second GP and second ambulance crew admitted breach. The court further held that the claimant would not have reached the stage of CESR (complete cauda equina syndrome), which, inferred from the facts, he did at about 4.30pm, if the first GP had not been in breach. Similar considerations applied to the second GP and second ambulance crew.

With timeous surgery, the claimant would have made a full recovery from his CESI (incomplete cauda equina syndrome) and would have avoided his bowel and bladder symptoms, gait and mobility difficulties, and neuropathic pain. He still would have had some chronic back pain, however.

The High Court also considered GP negligence in relation to meningitis in Chloe Langdon (by her mother and litigation friend Natasha Osborne) v Dr D L Williams [2008] EWHC 741 (QB). The claimant, a 10-month-old infant, was taken by her mother and grandmother to various GPs over a two-week period with symptoms similar to those of a cold. Eventually, the claimant's grandmother took the claimant to see the defendant GP, who diagnosed nasopharyngitis, a viral infection, and prescribed calpol.

However, following this, the claimant deteriorated further, such that she was admitted as an emergency to hospital a short while later, where she was diagnosed with meningococcal septicaemia.

The High Court (Henriques J), in accepting the claimant's grandmother's evidence as 'consistent and transparently honest', held that the defendant GP had not taken proper steps to assess the claimant, in particular the claimant's responsiveness, and, if he had, he would have recognised symptoms that necessitated urgent referral to hospital and would have taken such steps.

Such admission would have resulted in appropriate diagnosis and treatment, and would have avoided the claimant's extensive scarring, significant leg length discrepancy, impaired walking, and bone and joint destruction around the knees.

In Simon Boustead (A Protected Party suing by his Mother and Litigation Friend Belinda Murray) v North West Strategic Health Authority (City Maternity Hospital Carlisle) [2008] EWHC B11 (QB), the High Court (Mackay J) considered whether medical staff had been negligent in not adopting a more aggressive approach to labour and in not performing a caesarian section (CS) in a 14-year-old girl who was 28 weeks' pregnant in 1987.

The claimant's mother had presented at 28 weeks' gestation with intermittent antenatal haemorrhage and pain, followed two days later by fetal decelerations on a cardiotocograph (CTG) trace. The consultant obstetrician allowed the labour to continue on the basis of the risks of CS at this stage of gestation. However, the claimant's mother's condition deteriorated and she developed fulminating pre-eclampsia. The obstetrician then, in the presence of decelerations on the CTG, administered syntocinon to induce the labour, which was halved when further decelerations occurred two hours later, only to be increased again a further hour or so later.

The claimant was eventually born eight days after admission. The claimant claimed that he should have been delivered by CS earlier than was the case and that, if he had been, he would have avoided hypoxia, intraventricular haemorrhage (IVH) and cerebral palsy.

The court held that a reasonable proportion of obstetricians in 1987 would not have delivered when the first fetal decelerations were detected. However, an emergency CS should have been performed either when the syntocinon was commenced in the presence of decelerations or shortly thereafter when further fetal decelerations occurred. The court considered that CS should have occurred some four hours earlier than it did and that the claimant had been hypoxic during this period. The cause of the claimant's disabilities was IVH. The causes of the IVH were extreme prematurity, hypoxia and respiratory illness due to lung immaturity. However, while the court considered that there were cumulative concurrent causes of the claimant's IVH, it concluded that the breach had materially contributed to the claimant's cerebral palsy applying Bonnington Casting Ltd v Wardlaw (1956) AC 613 HL and causation was, therefore, established.