Legal update - mesothelioma: Music and mesothelioma

29/07/2010

With the high-profile death of former Sex Pistols manager Malcolm McLaren, mesothelioma fell under the spotlight once more. Neil Hackett examines the continuing difficulty in pinpointing exposure.

The death of former Sex Pistols manager Malcolm McLaren from mesothelioma earlier this year once again threw this most serious of asbestos-related conditions into the spotlight. It sparked recollections of the death of music producer Mickie Most in 2003. Although diametrically opposed in musical terms, both men died aged 64 from the disease.

Naturally, this has led to speculation as to whether their musical backgrounds provide a common potential source of asbestos exposure.

Malignant mesothelioma is a fatal condition almost invariably linked with occupational exposure. It can take 40 years or more to manifest itself and it is rare to see symptoms emerge in less than 20 years. Of those subject to significant asbestos exposure 40 or so years ago, only 2% to 3% go on to develop this form of cancer.

Malcolm McLaren’s potential exposure to asbestos may have arisen during the creation of Sex, the King’s Road design shop that he opened in the 1970s with then girlfriend Vivienne Westwood. It appears he was involved in shattering a ceiling to provide a specific effect within the shop. Amosite (brown) asbestos was used in insulation and as reinforcement in ceiling tiles and it is possible this may give rise to asbestos exposure.

However, following Mickie Most’s death in 2003, a link was also created between asbestos exposure and work in recording studios. Many acoustical panels applied to ceilings or walls to reduce echoes and reverberations before the 1980s â and certainly during the 1950s and 1960s â contained asbestos to provide strength and fire resistance. These panels in themselves may not have provided a hazard unless they started to deteriorate or were damaged. But panels that exhibited crumbling could give rise to a potential asbestos dust risk. It is also known that crocidolite (blue asbestos â and the most harmful) was used in sprayed acoustic insulation.

Pinpointing exposure

While this is a possibility, it is entire conjecture. It is going to be very difficult if not impossible to pinpoint where exposure took place in respect of these two high-profile mesothelioma victims and whether a link to their respective music backgrounds is sustainable. One can only guess at whether exposure occurred during the time they spent performing or producing at locations where these acoustic panels were used.

In fact, this theory was first aired and refuted following the death of Mickie Most on the basis of comparison between this single incident of mesothelioma and all the bands and producers that have worked in all the recording studios around the world, over the years. The suggestion, therefore, was that there was no exposure or that any exposure was immaterial â that is to say, de minimis.

Recent cases have considered this question of immaterial exposure. In Wilmore v Knowsley (2009) the claimant, a former pupil at the local authority secondary school between 1972 and 1979, developed a malignant mesothelioma and pursued the local authority. As ceiling tiles in the school contained brown asbestos, she recalled dust falling from them when workmen attended and when pupils misbehaved. The court accepted medical evidence that exposure had materially increased the risk of her developing mesothelioma.

This case could not only support the potential exposure theory of Malcolm McLaren when shattering his shop ceiling but also that if Mickie Most or he had come into contact with asbestos fibres at stages in their musical careers, it would seem more likely that such exposure would have made a material contribution to the risk of development of their illness.

In situations of specific exposure to blue or brown asbestos, it would be difficult to argue de minimis exposure had not contributed to the development of a mesothelioma condition. If a claimant has mesothelioma it may well lead to the view there has been a material increase in risk if exposure is established. This is supported by the Court of Appeal decision in Sienkiewicz v Greif UK (2009).

The features of mesothelioma were also considered by Mr Justice Burton during the employers’ liability policy trigger litigation â where judgment by the Court of Appeal is still awaited. Symptoms described include increasing breathlessness, consequent upon build-up of pleural fluid, and mesothelioma growth restricting lung expansion.

In practice, it is only possible to refer to manifestation by reference to such symptoms because, unlike most other cancers where there is a spherical growth within the body, which is sooner or later identified by a scan or an x-ray, the mesothelioma grows by creeping expansion along the pleura and is only rarely revealed by biopsy or CT scan, short of a post-mortem examination.

Reports suggest Mr McLaren and his family were angry that his condition was not diagnosed sooner. Doctors indicated that, even if it had been, there was little that could have been done. The average survival time from onset of symptoms is 12 to 18 months, rarely more than 24 months and sometimes as little as six months.

It is hardly surprising that mesothelioma is an emotive subject. This was demonstrated by the government’s intervention following the House of Lords’ decision in Barker v Corus (2006) with its subsequent implementation of Section 3 of the Compensation Act 2006 to effectively overturn that decision.

Following this, the insurance industry embarked through the Industrial Disease Claims Working Party to work with the Association of Personal Injury Lawyers in developing a mesothelioma claims handling protocol. Significant work was undertaken, to ensure that meritorious claims were dealt with expeditiously.

Rejected proposals

Unfortunately, despite initial drafts of the protocol being produced, the final proposals were rejected by Apil’s members. A further attempt is now being made by the insurance industry in respect of a protocol that will be acceptable to all stakeholders.

Approximately 2000 deaths per year due to mesothelioma are reported and asbestos-related claims are anticipated to peak between 2015 and 2020. And the proportion of mesothelioma sufferers making claims has increased as reported following research by the Actuarial Professions UK Asbestos Working Parties.

High-profile victims such as Malcolm McLaren can only add impetus to ensuring a process is agreed to the benefit of claimants suffering mesothelioma and their families.

Getting to the heart of the issue

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Neil Hackett is disease and illness manager at Garwyn

Original Article: Post