Lung cancer caused by asbestos is a different condition than mesothelioma. Mesothelioma is a rare cancer that develops either in the lining of the lungs (pleural mesothelioma) or in the stomach (peritoneal mesothelioma) and is almost always caused by exposure to asbestos fibres.
Lung cancer is generally a tumour in the lung itself and can be caused by other harmful substances such as tobacco as well as exposure to asbestos fibres. Exposure to asbestos can increase the risk of the development of lung cancer. There are around 47,000 people diagnosed with lung cancer every year in the UK.
There are significant differences between how lung cancer and mesothelioma are compensated in England and Wales.
The key principle with mesothelioma is that each company or defendant is joint and severally liable for the whole of the compensation. The person bringing the claim does not have to sue each employer which exposed them to asbestos.
For example, if Mr Smith worked for 4 different building firms and was exposed to asbestos dust in breach of the companies duty of care to him, then it is for Mr Smith with advice from his legal team to decide which company or companies to pursue. If Mr Smith succeeds against one company for even a short period of negligent asbestos exposure, then that company will pay the full amount of compensation on a 100% basis.
Lung cancer is markedly different, in contrast to mesothelioma, Mr Smith would be advised to pursue all 4 building firms. The compensation is divisible in lung cancer. In a nutshell, this means that each negligent company pays compensation based on the duration of employment with each company or based on the intensity of the exposure (engineering evidence would be needed). If any of the exposers are not pursued – perhaps because they or their insurers could not be traced, the Claimant would have to take a discount on the compensation to reflect that Defendant’s contribution.
For example, Mr Smith worked at 4 different building firms and was exposed to asbestos in breach of the companies duty of care to him. His asbestos exposure at all 4 companies is similar and he worked at each company for 10 years. If his claim succeeds against all 4 companies then he receives full compensation. If the claim does not succeed against say, 2 of the companies or if insurance cannot be located for these 2 companies then his compensation could be reduced by 50% as a consequence.
This situation is far from adequate when both mesothelioma and lung cancer are terminal diseases which can both be caused by asbestos exposure.
A diagnosis of mesothelioma also allows access to the DMPS (Diffuse Mesothelioma Payment Scheme) which provides compensation on a tariff-based basis for sufferers who are unable to recover compensation through a civil claim because of their former employers being dissolved and uninsured or insurers untraced.
Lung cancer sufferers do not currently have access to the DMPS. If Mr Smith was diagnosed with lung cancer and the 4 building firms he worked for are dissolved and no employers liability insurance can be traced then he would not recover any compensation. Mr Smith would not be able to submit a claim through the DMPS.
The DMPS is a welcome tariff on the insurance industry and provides a potential safety net to those diagnosed with mesothelioma which is a devastating disease, however, more could be done to provide the same level of protection to sufferers diagnosed with lung cancer and other asbestos related diseases.
In legal claims the evidential burden for a sufferer is also different in lung cancer than it is in mesothelioma. In mesothelioma claims there is a relatively low threshold of asbestos exposure that must be established. It is accepted by the courts that a very small dose of asbestos fibres can increase the risk of the development of mesothelioma.
The dose level required in asbestos related lung cancer is much higher. It is necessary for a sufferer to establish a cumulative, lifetime dose of asbestos exposure exceeding at least 25 f/ml years (usually 1 year of heavy of 5-10 years of moderate exposure to predominantly amphibole (blue and brown) asbestos) which is a much higher threshold than in claims for mesothelioma.
It is very important when a diagnosis of lung cancer or mesothelioma is considered that legal advice be sought from an asbestos specialist and that as much detail is obtained as to the sufferers historic asbestos exposure. This is especially important in claims for asbestos related lung cancer.
It would be welcomed by many asbestos sufferers if a policy decision could be made by the Government to extend the principle of joint and several liability to claims for lung cancer in a similar manner as mesothelioma and to lower the evidential burden for lung cancer sufferers, to increase access to justice for sufferers of these two devastating industrial diseases.