PROOF OF CAUSATION
A new approach in cancer
cases
Andrew Axon
Barrister
Parklane Plowden Chambers
Life is unpredictable
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Gregg v Scott
 Non-Hogkin’s lymphoma
 9 months delay
 Injury = premature death due to cancer
 Cure =10 years survival
 No delay, 42% prospect of cure
 Delay, 25% prospect of cure
Gregg v Scott
Question:
Did delay deprive the Claimant of the prospect of
cure?
(No other matter to be determined.)
Definition of cure – disease free survival 10 years
after initial treatment.
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1st Argument
 Quantification argument.
 Doyle v Wallace
 Langford v Hebran
 These losses (should they transpire) are proved to
be attributable to negligence.
 In Gregg, death (should it transpire) could not be
proved to be attributable to negligence.
2nd Argument
 Loss of Chance.
 Rejected due to reluctance to depart from
established principals (Hotson, Wilsher, etc)
 If distinguishable, a reluctance to develop policy to
allow recovery in cases of this type para 223 and 224
 Difficulty overcoming burden of proof.
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Gregg v Scott
Decision:
Reduced the prospects of cure from 42% to 25%
 It therefore increased the risk of death.
BUT
 Claimant could not prove death (if it occurred) was
attributable to delay rather than the disease.
Importance of the Question
 The nature of the question often dictates the answer.
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Importance of the Question
 The nature of the question often dictates the answer.
Alternative Question
 Improved medical understanding permits lawyers to
pose different questions.
 Reduced life expectancy.
 New data indicates that we have alternatives, in
particular considering life expectancy and “lost
years”
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Reduced Life Expectancy
 Gregg v Scott [2005] 2 A.C. 176
 Baroness Hale (para 207), Lord Phillips (para 131
and 132)
 JD v Melanie Mather [2012] EWHC 3063
 Oliver v Williams [2013] EWHC 600 QB
JD v Mather
 Growth in area of right groin.
 Misdiagnosed as a seborrhoeic wart.
 Delay 7 months
 Prognosis very poor
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Predictive factors
1.
Breslow thickness of tumour
2.
Is primary tumour ulcerated
3.
Lymph node involvement
4.
Metastatic spread
Findings
1.
Thickness of tumour 3-4 mm
2.
Primary tumour was ulcerated
3.
Lymph node involvement - 1 lymph node
Therefore AJCC staging IIIB (March) – IIIC(October)
Chances of survival (March) < 50% - G v S applied.
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Alternative case.
 Agreed:
 Delay had caused a reduced expectation of life.
 Median time for survival stage IIIB – 7.5 years
 Median time for survival stage IIIC – 4 years.
 Damages to reflect reduced life expectancy.
Oliver v Williams
 Ovarian cancer
 5 ½ months delay
 No difference on staging
 Greater abnormal tissue left – reduced life
expectancy.
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Claim rejected
 Claimant failed to prove a measurable difference in
life expectancy.
 HOWEVER:
 JD v Mather considered:
 “ … difference … staging of the melanoma changed
and good quality statistical evidence available…”
Quantification and Further Issues
 General Damages
 Lost Years:
 Whipps Cross University v Iqbal [2007] EWCA Civ
1190 (Croke v Wiseman and Pickett v British Steel)
 Provisional Damages
 FAA claims
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QUESTIONS
Mesothelioma
Living Claimant
JAMES MURPHY
PARKLANE PLOWDEN
LEEDS | NEWCASTLE
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Overview
• Malignant mesothelioma of the plura is very rare
•1 / 2,000,000 risk if no asbestos exposure
•Mechanism of disease unknown presently
•There is no minimum safe level of exposure
•Long latency period-30-40 years + is common
•85% of mesothelioma deaths are male
•Inevitably fatal
•Life expectancy from diagnosis between 6-24 months
Indivisible condition
• Unlike asbestosis /pleural thickening further exposure
does not worsen/ aggravate the condition
•Materially increasing the risk of mesothelioma is sufficient
for causation
•No need to prove ‘double the risk’ test
•Sienkiewicz v. Grief (2011) UKSC 10
•De minimis
•Apportionment not necessary
• S.3 Compensation Act 2006 (reversing Barker v. Corus
(2006) UKHL
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Forseeability of injury
• Breach of duty requires•Had the Defendant taken reasonable measures to
ensure that Cl was not exposed to a foreseeable risk of
asbestos related injury.
•‘Material increase of risk’ for causation not breach.
•Knowledge of risks of injury associated with asbestos
(does not have to be a specific illness) and precautions to
be taken
•Nature of Defendants business key
•Link with mesothelioma (after 1960?)
•Link with small levels of exposure to asbestos (1965?)
•Family (secondary) exposure (1967?)
Practical matters
• Benefits
•IIDB, AA/ DLAC
•The Pneumoconiosis (Workers Compensation) Act
1979/Diffuse Meso. Scheme 2008
•Private insurance
•Compensation schemes
•Cl employment history (HMRC)
•Work/ exposure
•Engineering evidence
•Names of colleagues
•Social media
•Quantum evidence (Living v. Fatal)
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Living or Fatal Claim
•Claimant’s choice -BUT
•Lost years claim does not survive death
•No spouse/ dependants=living claim
•Liability considerations
•Loss to death (projected) as per ordinary PI action
•Loe/ pension
•Care
•PSLA
•Question is: Lost years claim v. Fatal claim
Caution required
• Heads of loss not presently available
•Statutory Claim for bereavement (£12,980.00)
•Funeral expenses (Bateman v. Hydro Agri (UK) Ltd?)
•Damages for the loss of services during the lost years
•Loss of spouse/parent’s care
• Disadvantageous differential in percentages of
available income (Shanks v. Swan Hunter Group PLC
(2007) EWCA 1807 QB)
•(50% / 67% standard in lost years)
•(67%/75% in fatal)-depends on deps. income
•Inheritance tax implications
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Simple example
Claimant earns £20,000 p.a. net. Spouse does not work/
does work (£10,000 net pa) Multiplier of 10.
LIVING
FATAL
Loss to death
Same
Same
Bereavement
nil
£12,980
Future services
nil
£2.5k p.a.
Funeral
(nil)
£3,750
Future Loe/FD
£100,000
£133,340
Spouse works
£100,000
£100,000
(L) £20,000 x 50% x 10
(S-NW)£20,000 x 66.67% x 10
(S-W) £30,000 X 66.67% -£10,000 X 10
Settlement-precludes FAA Claim?
• Settlement of a living claim precludes a FAA claim later
•Thompson v. Arnold (2007) EWHC 1875
•A cause of action must exist at the date of death
•Usually even against different tortfeasors (Jameson v.
CEGB (2000) 1 AC 455)
•Options
•Full & final
•Issue living claim, seek interim/ split trial but adjourn
damages (some heads of damage?)
•Likely development
•Abolish lost years but FAA claim can be brought after
death regardless of PI action concluding
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Conclusions
• Mesothelioma claims have many advantages over other
industrial injury / asbestos claims
•Fatal claims to be avoided only if Cl has no dependants.
Fatal claims will usually have a higher value
•Often a living mesothelioma claim becomes a fatal claim
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