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An asbestos cancer case decision has shown the difficulties facing mesothelioma victims if they other health conditions.
The High Court recently handed down its judgement on McGill v Panel systems (DB) Ltd. In this case the main issue was over life expectancy. The case may have broader implications.
Asbestos Cancer Claim Issues
The late Mr McGill died as a result of a heart attack in July 2016. He was just 60 years old at the time. He been diagnosed with mesothelioma but had a long history of heart problems.
The issue of his exposure to asbestos and responsibility for damages was not challenged by the defendants. The amount of compensation was the basis for the court trial.
The issues in the case were about the loss of life expectancy and for losses for care and support in the house and garden.
The Claimant’s case
The claimant’s case was that the mesothelioma prevented him having heart bypass surgery (CABG). As a result it was argued that he would not have suffered a heart attack and died at such a young age.
The court considered evidence from both parties. It accepted that he would have gone on to have the CABG surgery. The court also found that the surgery would have prevented the blood flow problems to the heart and would have avoided the premature death due to heart disease.
The next hurdle
The next hurdle was then that in relation to the amount of life expectancy that has been lost. The claimant’s medical experts argued for a loss of 25.5 years reduced to 19.5 years for his other health issues. The defendants argued for a lower figure.
The defendants argued that the usual approach should not be followed which was to look at the average population. Actuarial tables are used by lawyers. These take into account factors of geography, social class and smoking.
The defendants argued however with a serious heart issue that there was a risk per year of a fatal event. They put forward that each year there was a real risk and that should reduce the projected survival.
The defendants had a cardiologist who referred to survival rate data after triple heart bypass which said there was a 4% risk of fatality each year.
The court carefully balanced how actuaries,lawyers and courts look at cases and found in the claimant’s favour. Hence the court accepted the claimant’s argument for loss of 19.5 years.
Asbestos Cancer -Second issue
The further issue arose from the claimant’s underlying amount of care and support given to the deceased and the loss of his help and support to the family.
In this argument the defendant fared better. The court found that even before the mesothelioma Mr Magill was needing a great deal of help and support. He claimed for benefits and explained he was not able to do much about the house. His records and benefit applications were carefully considered. The court largely rejected much of this head of claim for house services and spouse support.. This is in keeping with recent court decisions.
The case is a useful reminder to those who bring mesothelioma cases where the victim has major health issues. On this occasion the claimant won on the issue. However we expect defendants to continue to raise arguments where any victim has other health problems. Robust medical experts will be needed.
In respect of the second aspect claimants will have to think carefully about what care and support they provide for someone before they developed mesothelioma. A reasonable assessment of the additional work and care and a clear assessment of this is prudent.The courts are less keen to help claimants unless a clear case can be made out. Claimants cannot rely on sentimentality.
Howard Bonnett, Director and Solicitor at Corries made the following observations
“ I understand that defendant insurers and lawyers will raise every argument they can to reduce the value of a claim. The claims involve many tens of thousands of pounds. Victims should expect claims to be gone through in detail. My lawyers face these same issues every day. This is why expertise in these claims is so important.
Been affected by asbestos disease in the last three years? Contact our specialist claims team now on (0800) 083 7839.