The Health and Safety Executive take the view that the overall scale of asbestos related lung cancer deaths has to be estimated rather than counted. Research that they have considered suggests there are currently about as many lung cancer deaths attributed to past asbestos exposure each year in Great Britain as there are mesothelioma deaths, currently around 2,600 a year.
Number of asbestos exposure cases underestimated
Yet data sources that rely on counting individual cases attributed to asbestos exposure such as Industrial Injuries Disablement Benefit and The Health & Occupation Reporting (THOR) Schemes tend to underestimate the scale of asbestos related cases. In recent years, on average, 300 new cases of asbestos- related lung cancer are reported each year within the IIDB Schemes and less than 100 cases identified by chest physicians within the THOR Scheme. So, why are asbestos-related lung cancer cases being under reported?
Causation by asbestos and the contributory effect of smoking
It may be due to the difficulties in establishing that asbestos has been the cause of the cancer as opposed to other factors - the most common may be anticipated as being smoking.
Yet, there is epidemiological evidence that where a smoker also has had asbestos exposure the risk of them developing lung cancer significantly increases to a much greater risk level than someone who has smoked and not been exposed to asbestos.
To be successful in proving a compensation claim for asbestos related lung cancer, it is generally considered that for asbestos to have been a causative factor there must have been a reasonably heavy exposure to asbestos.
Your employer’s liability and your history of smoking
But even if a company is found to have caused the lung cancer through asbestos exposure, the Courts will not ignore the fact that the smoking was a contributory factor. They will look to assess the extent to which someone has contributed to their condition by smoking, generally making a deduction of 20-30% of the value of the claim. The courts will still therefore usually attach greater weight to the negligent conduct of the company or other entity who exposed someone to asbestos, but it will depend upon the facts of each case.
The attitude of the Court
Indeed someone who has become addicted to cigarette smoking, either physically or psychologically may not have been able to give up. When assessing the extent to which someone has contributed to their own illness as a result of smoking the Court’s will look at such things as how long a person smoked for and whether they made any attempts to give up.
Although lung cancer cases can be difficult to prove, with specialist legal advice, medical evidence and engineering evidence it is possible to establish the link between lung cancer and asbestos, even where someone has been a smoker.
For more information, contact Shoosmiths on 03700 868686 or email [email protected] for an initial free no-obligation consultation.
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2023