Far fewer legal cases are pursued for asbestos lung cancer, in comparison to mesothelioma. The reason is the difficulty in connecting the diagnosis of lung cancer to previous asbestos exposure, over other causes of the condition such as smoking.
For years the arguments on causation of lung cancer have raged in the medical world. For many years the perceived wisdom was that to link lung cancer to asbestos, asbestosis (fibrosis of the lungs) also had to be present. This was an illogical argument, because many mesothelioma sufferers do not have asbestosis, so why was it necessary to be present for another lung cancer?
In 1997 a group of leading scientists met in Helsinki, and came up with the Helsinki Criteria, a test for determining which lung cancer cases, in the absence of asbestosis, could be reasonably concluded to have been caused by asbestos.
The Helsinki Criteria all comes down to the amount of asbestos the sufferer is exposed. If very significant the Helsinki Criteria states that it should be accepted that asbestos is the cause. Expressed in scientific terms the level is 25fibre/ml years, and in a legal context it is necessary to get an engineer to prepare a report on the asbestos dosage.
Last year these issues came before the court in the case of Shortell v BICAL Construction Ltd.
Mr Shortell had been exposed to asbestos when working at power stations alongside laggers for much of his working life. However, he had also been a heavy smoker. He contracted lung cancer and passed away in July 2006.
The issue for the court was whether it could be shown that his lung cancer was caused by asbestos, or was it the smoking?
Asbestosis was not present, but there was evidence of pleural plaques and pleural thickening. After his death, no post mortem was performed and so there was no evidence of the asbestos fibre count in his lungs.
At trial the Helsinki Criteria was accepted by the Judge – the first time that it had been recognised by the British Courts.
The issue for the court was whether there had been enough exposure. This dosage calculation was carried out by engineers, which the medical experts then had to consider.
The type of asbestos was important. Blue and brown asbestos are much more potent than white asbestos. The medical experts considered Helsinki was based on blue/brown exposure. However, if there was a mixture of exposure at say 50% white exposure and 50% brown/blue then the total asbestos dosage would have to be a figure of between 40 to 50 fibre/ml years, a significant increase on the 25fibre/ml threshold. If a sufferer had only been exposed to white asbestos then the experts would only be willing to support a case for lung cancer compensation if the suffered had been exposed to in excess of 200fibre/ml/years.
In Shortell the Claimant was successful, but the sting in the tale is the increase in the Helsinki threshold where there has been exposure to mixed types of asbestos.
To succeed in a case for lung cancer, and in the absence of asbestosis, sufferers will generally have to show significant exposure to more than just white asbestos.
It is of the upmost importance that at the outset of a claim detailed information on the type of asbestos the sufferer came into contact with is taken.
The case offers useful guidance into the evidential requirements when pursuing a claim for asbestos related lung cancer.