sparksThe Claimant employee was exposed to asbestos dust during the course of his employment over 50 years ago. This judgement sheds light on the importance of selecting the correct expert and the need for sound methodology to analyse the possible extent of asbestos exposure when proving causation in industrial disease cases.

The Claimant was diagnosed with interstitial lung fibrosis, a disease which in 70% of cases is idiopathic (i.e. there is no identifiable cause). It can also be caused by exposure to asbestos, in which case the condition is known as “asbestosis”.

The single issue to determine was “how much asbestos had the Claimant been exposed to?” The judge accepted 25 f/ml years cumulative exposure as the benchmark for proving asbestos exposure caused the Claimant’s disease. The judge recognised, obiter, that this threshold might be decreased in some cases, but the fact both experts treated 25 f/ml years as a bright line meant there was no need to go behind that figure.

Exposure took place at the Defendant’s factory for 3 years, as a result of using dustbins full of asbestos to douse fires that were ignited during the production of magnesium. Further exposure to asbestos dust would occur in the 30 minutes during which the resultant mess was cleared. Around 9 fires would occur per year per machine. The Claimant operated one machine, and his colleagues the others.

The Claimant’s expert had no practical experience of measuring asbestos exposure outside the context of asbestos litigation. The judge accepted this would affect the weight of his evidence. Relying on an obscure TUC pamphlet aimed at informing workers of their rights, the expert concluded that the act of tipping out the dustbin, would result in a peak asbestos concentration 10,000 f/ml (the top-end of a concentration range of 10-1000 f/ml set out in abstract in the pamphlet) and so a mean of 1000 f/ml.

This figure of 10,000 f/ml far exceeded the figures provided in a seminal study (“Dr Harries’ study”), which provided that similar activities would result in concentrations of asbestos in the hundreds, not thousands f/ml. The Defendant’s expert stated that he had witnessed visually some of the activities in Dr Harries’ study, and believed the high levels of asbestos dust exhibited were similar to the release of dust in the present case.

The Defendant’s expert had been a member of the Committee for Fibre Measurement and so was strongly placed to assist with quantifying the asbestos exposure. He carefully analysed the degree of asbestos dust that would drift away from the Claimant along the rising thermal currents caused by the fire.

Further, he took issue with the Claimant’s assumption that the exposure to asbestos would be the same regardless of whether the fire was at the Claimant’s own machine or that of a co-workers. The figure the expert reached was a peak concentration of 2000 f/ml.

The judge concluded that he preferred the Defendant’s expert evidence. There was no provenance behind the 10,000 f/ml peak figure (a fortiori nor the 1000 f/ml mean figure), nor any clear reason why the highest possible figure in the pamphlet had been selected by the Claimant. Nor was the unexplained departure from the figures in Dr Harries’ study justified, where that study had been published in a reputable journal and had used clear methodology.

In contrast, the Defendant based his figures on Dr Harries’ study, but made appropriate allowances in the Claimant’s favour, such as account for any remaining dust lingering throughout the day. He properly considered the impact of the Claimant’s distance from the dust, and the fact that on the evidence, the workers would clean up as quickly as possible, reducing the exposure time.

The result of these findings was that the threshold of 25 f/ml years was not met. The figure was more likely to be below 10 f/ml years. This judgement is a welcome shift away from reactive, policy-driven decision-making and a nod toward logical, scientific analysis.

Sammy Nanneh

For a full copy of the judgement text, click here


Further Comment

Warne is an interesting decision for a number of reasons.

First, it represents a finding of causation by Idiopathic Pulmonary Fibrosis (“IPF”) in the face of known asbestos exposure. In this context, none of the clinical features are necessarily decisive. The late onset of disease and the significant progression did favour IPF, but they would have been trumped had there been a finding of sufficient asbestos exposure to cause asbestosis. Historically, such cases have been determined against Defendants because of the known asbestos exposure history. However, with the passage of time, cases involving genuine heavy exposure will become less common and it is likely that Defendants will be able to defend more cases by reference to the alternative diagnosis of IPF.

Secondly, the Judge acknowledged the greater expertise of a trained Occupational Hygienist, Martin Stear, over that of a traditional experienced engineer, Ken Taylor. Whilst experts such as Ken Taylor can bring great value to these cases in terms of their contemporaneous knowledge of working conditions in the 1950s and 1960s, they were trained in an environment in which numerical assessment of asbestos exposure was unknown. Mr Stear, on the other hand, through his training as an Occupational Hygienist and experience as a Principal Specialist Inspector at the HSE, had much greater insight into the likely actual levels of exposure from the situation as described in the evidence. At one stage, there appeared to be a curious judicial hostility, in particular in the High Court in London in relation to the instruction of occupational hygienists in cases of this nature. This hostility does now appear to have ended and decisions such as this show the wisdom of so doing.

Thirdly, perhaps the most interesting point is one which did not require resolution on the facts of the case, that is whether the exposure would be considered substantial within the meaning of Section 47 of the Factories Act 1937. The point did not arise for consideration since if the Claimant’s case in relation to exposure and causation had succeeded, then the exposure would inevitably be regarded as substantial, that is at 25 fibre/ml years, creating a risk of asbestosis specifically. If the claim, however, had been a mesothelioma claim and Martin Stear’s evidence was accepted, then there would undoubtedly have been sufficient exposure to cause mesothelioma and the question would then arise as to whether the Defendants would have been in breach of their statutory duty to prevent dust exposure under Section 47 of the Factories Act 1937.

Sammy’s article, which appears below, discusses the relevant authorities. This issue is becoming increasingly important; in particular in the light of the Macdonald v National Grid [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2014] UKSC 53 decision (see below), which confirmed that exposure need only be substantial at emission, not necessarily inhalation, to amount to a breach under the Act. It is obvious that the exposure must be substantial at its occurrence, often synonymous with a large dust-cloud. The more difficult issue to determine is whether any degree of duration or repetition is necessary so as to constitute substantial exposure within the Act.

Against this background, it is instructive to consider how the term was regarded at the enactment of Section 47 of the Factories Act 1937. The Chief Inspecting Officer of Factories wrote in his annual report for 1938,

While Section 47 of the Factories Act 1937 may be thought somewhat ambiguous in its reference to a substantial quantity of dust of any kind, it is I consider, an admirable one in that it requires precautions even before it is possible to say specifically that the dust in question is harmful to a recognisable pathological extent. There can be no doubt that dust if inhaled is physiologically undesirable. Moreover, dust that is thought today to be harmless may, following research, be viewed in another light tomorrow. It is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous.

This would imply that during the course of the enforcement of the Factories Act 1937, the terms “substantial” and “likely to be injurious” would have been interpreted by the Inspectorate in a synonymous way in relation to asbestos, so that very brief irregular exposures would not have been thought to be substantial within the meaning of the Act.

Against this background, as we have argued in PI Update ( link ) ,it would be reasonable to assume that there must be some degree of duration or repetition so as to create a substantial exposure under the Act.

In the present case, the issue would likely have been determined against the Defendants, even on Mr Stear’s evidence, by reference to the concept of potential exposure, which was developed by the Court of Appeal in Jeromson v Shell Tankers (UK) Limited [2001] EWCA Civ 101. The Claimant was only exposed for two to three years but if such exposure occurred at this level and at this frequency during a working lifetime, then a risk of asbestosis would have been apparent. On this basis, the exposure could be considered substantial at the time of occurrence, even if the Claimant himself would not be regarded as being foreseeably at risk given his short period of exposure.

The problem will become more acute if the exposures were much less frequent and of much shorter duration, even perhaps a one-off. In this context, it would appear difficult to argue that the exposure would ever have been considered substantial within the meaning of the 1937 Act. In this context, Smith v Portswood [2016] EWHC 939 (QB) probably represents the better approach as a matter of law. Given the lack of precision in measurement, substantial must to an extent be impressionistic. It follows that there will be cases either side of the borderline as evidenced by the conflicting decisions discussed in the article below.

Charles Feeny, Sammy Nanneh.



Chronic Pain, vulnerable or inevitable? Bagaley v Chesterfield Hospitals

Factual background and the court’s judgement

Download judgement PDF

A claim was brought against the Defendant hospital after the Claimant, Ms Baggaley, was mistakenly led to believe that she might be suffering from cancer. The Claimant argued that this belief had caused her severe depression as well as Chronic Fatigue Syndrome (“CFS”).

The Claimant approached her GP after finding a lump on her neck. Laboratory tests were conducted. Following a negligent mix-up, the test results incorrectly showed the presence of ‘subtle abnormal cells’. One – unlikely – possibility was that the Claimant had cancer. Exchanges took place in October 2007 between the Claimant and her doctor following the tests. The Claimant alleged that these exchanges led her to believe that she had cancer, which then caused her mental illness. The tests were subsequently disproven and the doctor on several occasions explained to her that there had been a mix-up.

Whether the Claimant’s mistaken belief had caused her psychological problems and CFS was complicated by the Claimant’s predisposition to episodes of anxiety and depression. A large number of GP visits provided substantial evidence of pre-existing psychological issues connected to the stress caused by relationships, employment, pregnancy, health problems and a road traffic accident.

The expert evidence was polarised. On the one hand, the Defendant’s expert considered that the Claimant had long exhibited an endogenous proclivity to mental illness. On the other hand, the Claimant’s expert contended that the Claimant’s bouts of anxiety and depression merely reflected unusually challenging life events.

The judge held that the Claimant’s medical history showed a high degree of psychological vulnerability and that she had been subjected to periods of prolonged anxiety in the past and was susceptible to future such episodes. Nevertheless, the judge held the Claimant had not been suffering from any active psychological illness before the purported misdiagnosis.

It was held that the misdiagnosis had indeed caused the Claimant to develop psychological problems. However, her medical notes suggested that she subsequently made a prompt recovery. The future deterioration in her mental state took place much later and was as a result of new concerns in her life such as financial worries, weight-gain and relationship struggles. The only time the misdiagnosis caused her any further worry was when she once again found a lump on her neck. However, it was held that this would have caused anxiety notwithstanding the past misdiagnosis. It was significant to this conclusion that the judge did not view the Claimant as a particularly reliable witness. He preferred instead to rely on her medical notes. He rejected her assertions that she was constantly worried following the misdiagnosis and that this culminated in her mental illness.

The result was that no causal link was established between the misdiagnosis and the CFS. The latter materialised only after the Claimant recovered from a short period of depressive illness following the misdiagnosis. The judge awarded a modest sum reflecting the anxiety and distress following the misdiagnosis, totalling £6500. This was far short of the £144,360 that would have been awarded had causation been established.

Points of interest – a medical perspective

This is an interesting case in which the impact of a potential diagnosis of cancer is explored.  From the perspective of a Clinical Neuropsychologist it raises a number of interesting themes that can be summarised as follows:

[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1] When individuals are provided with the results of health-related investigations, and the news is not positive, it is very likely that their ability to process the information given will be hampered.  It is well established that in anxiety provoking situations the brain’s ability to encode information reliably is affected. Research would suggest that individual’s are very likely to focus on the negative rather than neutral or positive information.  It is therefore important for the clinician that friends or family accompany patients to consultations of this nature, as they can validate what was said in the consultation.

[2] To rely on an individual’s recall of their medical history without validation from the medical records is to be a hostage to fortune. Patients are not always good at detailing events from several years before.  Few people can recite an exact diary of events from memory.  This is particularly relevant in this case where the claimant had a significant number of consultations to recall. Therefore the importance of reviewing the medical records is essential in order to validate the patient’s timeline in respect of their medical history.

[3] In this case the Judge’s finding that the Claimant had a predisposition to psychological vulnerability is correct. One would expect, given the Claimant’s history, for her to have reacted badly and misinterpreted what she was being told at the various consultations.

[4] It is now standard clinical practice in the medical profession to identify whether the Claimant is a reliable witness.

[5] A clinical formulation of her psychological functioning would have identified that the Claimant reacts badly to stressful situations. Further, that her reactions are best explained by multiple factors, which may include [psychological and physical abuse from previous relationships, low self esteem and poor self-efficacy]. These symptoms would make an individual more vulnerable to developing psychosomatic symptoms.

[5] In this case it would have been best to support the evidence with a number of psychological measures specifically aimed at exploring personality and psychological functioning.

Gus A Baker

Emeritus Professor of Clinical Neuropsychology

Points of interest – a legal perspective 

In many ways, this claim is typical of what might be described as a difficult pain claim, where there is a vast difference between the Claimant’s valuation and the Defendant’s approach.

The Claimant denied any significant pre-morbid history, but analysis of her General Practitioner notes revealed a very different position.  Nonetheless, as Professor Gus Baker indicates, this history was arguably doubled-edged as it would indicate a very significant vulnerability to the relevant events.

Ultimately, the issue could be described as “where did the vulnerability end and where did inevitability begin?”  Or to put it another way, when did the Claimant’s post-misdiagnosis presentation merge back into her pre-misdiagnosis presentation?

This issue required painstaking analysis of the history, which at several junctures was not easy to assess.  Nonetheless, the Judge showed conspicuous care in his analysis of the history and evidence, concluding that by the time of the onset of the Chronic Fatigue Syndrome, the misdiagnosis was essentially a matter of history; see paragraphs 85 and 95.  The Chronic Pain Fatigue Syndrome was best explained by events contemporaneous with its onset.

Whilst it is tempting to look at a case like this in a broad way, the difficulty of unravelling a complex history means that ultimately the correct conclusion can only be reached both by experts and lawyers through a detailed examination of the relevant events.

Charles Feeny, Barrister at Complete Counsel

Download judgement PDF

Professor Gus Baker, Charles Feeny and other experts will be speaking at a seminar on Chronic Pain, Factitious Disorders and Malingering to be held on the afternoon of 3 November 2016 in Liverpool.  Further details will appear on the Complete Counsel and Pro-Vide Law website as soon as possible.


Does clinical negligence litigation have a role in patient safety?

Are standards maintained because at least in part, a threat of litigation, and are lessons learnt (as claimed) from litigated cases?

Patient safety is described by the World Health Organisation (WHO) as ‘the most important common issue in health care internationally’. It includes the prevention of errors and adverse effects to patients associated with health care. Currently, 1 in every 10 patients in Europe experience preventable harm or adverse events in hospital.

WHO statistics show that strategies to reduce the rate of adverse events in the European Union alone would lead to the prevention of more than 750,000 harm-inflicting medical errors per year, leading in turn to over 3.2 million fewer days of hospitalisation, 260,000 fewer incidents of permanent disability, and 95,000 fewer deaths per year.

The WHO/Europe 2008 Tallinn Charter: Health Systems for Health and Wealth, combined with the contents of Health 2020, provides guidance for the strengthening of people centred health systems for coordinated/ integrated health services. National health authorities are encouraged to consider policies that can support safer care and engage patients, families and health care staff working together to improve patient safety.

NHS England has identified that ‘Patient safety improvement is about tackling the causes of errors in care that can come from bad working environments or the lack of training and support for staff’, with ‘The Care Quality Commission’ (CQC) policing such, in the hospital environment.

In relation to its stance on patient safety, the NHS stipulates that,

Every patient in the NHS should expect the people and organisations caring for them to make their safety the first priority. They should expect to be treated in a clean environment, with a minimal risk of infection. The equipment used should be in good working order and used in the correct way. 

Medicines should be given on time and in the correct doses. Treatments should be appropriate for their condition, with procedures performed correctly and in a timely and effective way. 

Patients who are being cared for in hospitals, in their own home, or in nursing or care homes should receive care that minimises the risk of any further harm.

Care should be delivered in a co-ordinated way by competent professionals who work in an effective team. This includes communicating patients’ needs effectively.

Included within the Simon Stevens’ 5 year programme vision for the NHS, there is an emphasis on a radical upgrade in prevention and public health, as well as providing patients with a far greater control of their own care.

This has been reflected already within the courts, with the decision seen by The         Supreme Court in Montgomery v Lanarkshire Health, whereby the parameters in relation to the issue of medical consent are now to include ‘any material risk’ to be disclosed by the doctor to the patient, prior to any treatment being administered. An ‘informed, intelligent patient’ being mostly, the duty of the treating doctor.

Whether clinical negligence litigation does have a role to play in patient safety, is not currently reflected by a decrease in number of claims or annual expenditure on such.

The NHS Litigation Authority Report and Accounts 2014/15 reports a 26% increase in the number of NHS claims over the last 9 years, with the proportion of NHS activity reported to the National Reporting and Learning System as an incident resulting in harm (moderate, severe or fatal), also increasing. The total clinical negligence expenditure including interim payments in 2014/15 was £1,169,586,958 compared with £1,192,538,084 in 2013/14. 11,497 new clinical negligence claims were received in 2014/15, an average of 958 new clinical claims every month, with a steady increase over the last 3 years.

The report goes on to highlight,

Whilst annual expenditure on clinical negligence claims saw a small reduction from 2013/14 to 2014/15, this does not account for future income streams agreed on high value claims resolved on a periodical payment basis within the year. In addition, the financial impact of the high number of claims received during 2013/14 is likely to be seen in 2015/16 and beyond, when those claims fall for settlement.

For the year 2014/15 orthopaedic surgery accounted for 14% of clinical negligence claims, with 12% relating to A&E, 11% general surgery, 10% obstetrics, 6% gynaecology, 5% general medicine, 3% radiology, 3% urology, 2% gastroenterology, 2% paediatrics and 32% aggregated specialities……

Our aim is to support the NHS to learn from things that go wrong, to help reduce harm, improve patient safety and prevent claims from happening in the future.

At the end of last year, The Health Foundation published the report ‘Continuous improvement of patient safety, The case for change in the NHS’ by John Ilingworth. One observation of Illingworth stated,

The factors are systemic, cultural, contextual and human in nature, and elements of all of them were also identified in the inquiries into failings of care at Mid Staffordshire NHS Foundation Trust and, most recently, Morecambe Bay, some 46 years after the Ely Hospital Inquiry. While such factors are complex, multifaceted and difficult to eradicate, their persistence across the decades is cause for serious concern.

Going on to conclude, Ilingworth states,

Given the tendency to focus on measuring individual aspects of harm in the NHS, rather than system measures of safety, it is inevitable that an answer to the question of whether the NHS is getting safer remains “curiously elusive”.

The report ‘Patient Engagement in Patient Safety: A Framework for the NHS was published in response and provides guidance for patient inclusion, at every level.

Over the last decade, as the increase in litigation cases and expenditure on such have increased, so too, has the pressure on the treating doctor’s susceptibility to be litigated against. This has created the sometimes advantageous, and the sometimes not-so advantageous situation of ‘defensive medicine’, for the patient and doctor alike.

Ortashi reported in the article ‘The practice of defensive medicine among hospital doctors in the United Kingdom’

More than three quarters (78%) of doctors reported practicing one form or another of defensive medicine, and although this seems to be a high prevalence rate, in fact this is well below the prevalence of defensive medicine reported in United states of America (USA) and Japan where the prevalence of defensive medicine practice is reported to be above 90%’ ……

Though one in three consultants have a direct experience with litigation, however consultants are practicing less defensive medicine. We think this is expected finding, as consultants are taking the ultimate responsibility in the NHS, most of the claims are not successful so most of the consultants are used to deal with these claims on frequent base.

Over half of the sampled doctors in this study (59%) practice defensive medicine in the form of ordering un-necessary tests. Interestingly this is exactly the same percentage that Nicholas Summerton found in 1995 among general practitioners in the UK where 59% said they would request diagnostic tests to avoid complaints and litigation.


Defensive medicine practice is common among hospital doctors who responded to our survey. Ordering un-necessary tests is the commonest form of the defensive medicine identified in this study. Senior grade is significantly associated with less practice of defensive medicine. Further research is needed on the cost of defensive medicine on the NHS.’

In the article ‘Does defensive medicine protect doctors against malpractice claims’ published in the British Medical Journal last November, the authors concluded,

Defensive medicine refers to medical care performed primarily to reduce the risk of litigation. Positive defensive medicine occurs when doctors perform more tests or procedures than are necessary. Negative defensive medicine occurs when doctors avoid high risk procedures or refuse to care for high risk patients…… It’s too early to say, although there seems to be a link between higher healthcare spending and lower risk.’

The same conclusion was reached in a 2015 study from the University of Southern California, Harvard Medical School and Stanford University, whereby, it was found that, ‘higher-spending physicians across all specialties face fewer malpractice claims.’ The same study reported, ‘an average physician with a 40-year career will spend 4.25 years with an unresolved, open malpractice claim’.

The personal toll on the physician has been discussed in 2013 in the article ‘Defensive Medicine: A Bane to Healthcare’,

the personal finances or professional status of most physicians is not affected by a lawsuit as they have malpractice insurance. This notwithstanding, some physicians show symptoms of anxiety, depression, behaviour or personality changes due to reputational consequences that might undermine their professional career and respect.’

 The article goes on to conclude that,

practicing defensive medicine is not good for patients or physicians. The adverse effects of defensive medicine are not limited to the increased cost of healthcare, but also affect the overall quality of the healthcare system’.

In an attempt to avoid the limitations posed by defensive medicine, ‘The Medical Innovation Bill’, now renamed ‘Access to Medical Treatments (Innovation) Bill’ is  scheduled to be reintroduced to the House of Commons on the 6th December later this year. This Bill sets out the instances where a doctor is not negligent in departing from the existing range of accepted medical treatments provided they act responsibly. The doctor then has to show that they have considered a number of factors (risks, likely success rates, patient and peer views) and followed a process which is transparent, accountable, and allows full scope for considering all relevant matters. Thus widening the parameters of the standard Bolam test.

The following 8 reasons are stated to be why hospital negligence claims are on the rise in the UK:

  1. Waiting Lists and Medieval Doctor Referrals
  2. Overcrowding and Lack of Doctors
  3. Glitches in Computers
  4. Communication from Patient to Doctors
  5. Jobs That Are Rushed
  6. An Influx in Private Clinics
  7. Overcrowding and Immigration Issues in Hospital Negligence
  8. No Win No Fee Claims

To conclude, for purposes of my article, the expenditure paid out by the NHS in clinical litigation is clearly way too excessive to support a continued healthcare system operating in this way.

Although, best practice guidelines and best patient care management can be of assistance with improving patient safety, it remains on the medical individuals for implementation and ultimately carrying out the actual reality of making best practice happen.

However, it stands to reason that best practice guidelines can be extremely useful to the patient and care provider alike, and especially so, with the 8000 rare diseases currently identified.

The introduction of the ‘Access to Medical Treatments (Innovation) Bill’ most certainly has a very important role to play in the improvement of patient safety and reduction of clinical litigation. Let us hope that the newly formed government share the same view.








Montgomery v Lanarkshire Health Board (Supreme Court, 11/3/2015)