Defending Asbestos Claims

Our client, RE, had for many years run a small building/property development business, sometimes as a sole trader, sometimes as a partner. His business partner had long since died. RE was sued by top asbestos specialist solicitors, acting for the widow of TH who had died of mesothelioma. He had worked on and off as a carpenter/builder/handyman for our client’s business from the 1980s onwards. He claimed to have been exposed to asbestos from the removal of old asbestos materials on renovated properties. RE could not find insurers for most of the exposure periods.

Before he died, TH had provided detailed witness evidence with an apparently credible account of intermittent exposure with some other supporting witnesses. RE could not recall TH having any asbestos exposure from the work, but could not deny the possibility that he occasionally encountered asbestos on renovation work.

We took full statements from various witnesses RE had identified. However, their recollections were not specific enough to disprove all the claimant’s own evidence of some unprotected asbestos exposure.

On our advice to save costs our client admitted liability.

We assisted RE with tracing insurers and in preparing witness evidence to support exposure during the insured periods to try to maximise the share of the claim covered by insurers. The client had been looking at paying at least half of the claim himself. However, we managed to negotiate with the two traced insurers that they pay most of the claim, leaving the client to contribute just under 37%.

After obtaining our own medical report for the deceased, along with full disclosure of his widow’s medical records, we were able to argue the life expectancy of TH and establish that his widow had a history of poorly managed diabetes. Her life expectancy affected the value of the claim because she could only claim loss dependency on her husband for as long as she was expected to live. Using a formula for estimating reduced life expectancy for diabetics with sustained high blood sugar levels, we could argue that had it not been for TH’s mesothelioma, his widow would have died several years before him.

We put forward a settlement offer factoring in a large deduction for the widow’s reduced life expectancy. The Claimant’s solicitors objected on the basis of their chest physician’s higher life expectancy estimate. We demonstrated, from the recent research, why in our view he was wrong. We agreed with them that ultimately this would be a matter for an endocrinologist to advise. However, pending such a report, on our advice our client and the insurers stood firm on the reduced offer, which we refused to increase. The claimant backed down and accepted our offer.

The claimant initially sought £390,000, however we negotiated the claim down to £314,000. Their legal costs were then negotiated down from £95,000 to £65,000.

Although, our client still had to make a payment for the claim from his own savings, through increasing the insurer’s contribution and reducing the overall damages, we achieved a deduction for our client of over £100,000. Our client commented, “I fully appreciate all your advice and help you have given me in this matter.”

We were instructed by the executor of MW deceased, a former garage owner, who had just been served with High Court proceedings by the widow of DS, a vehicle mechanic MW used to employ, who claimed her husband’s asbestos disease resulted from unprotected exposure to asbestos from servicing car breaks and clutches in 1960s to 80s. MW had died four years earlier, and DS had died three years earlier.

We carefully reviewed DS’s full medical records which indicated that DS had probably been advised that he had an asbestos disease causing symptoms 8 years earlier. This was 5 years before DS died and 4 years before MW had died. We successfully argued that the claim was barred for limitation because proceedings were issued more than 3 years after DS should have been aware he had an asbestos disease due to his work. We further argued our client was prejudiced by that delay because our only witness to DS’s working conditions/alleged exposure was MW and he had died after the 3 year time limit had expired. The claimant’s solicitors were persuaded to drop the claim with no order for costs (a defendant costs order is only possible in mesothelioma cases).

Our client company, TH Ltd, was a small family still in business as a landlord/property management company. Their former employer JN, a carpenter, suffered and died from mesothelioma due to asbestos exposure from his work during 1960-70s. JN’s widow sued company X, one of the other building companies he had worked for during that time, claiming several £100,000s. (As it was a mesothelioma claim, she did not need to sue every employer who had exposed him to asbestos).

However, company X’s insurers, Zurich, claimed a contribution to the large claim they faced from our client, TH Ltd. This claim was based on JN’s own witness statement that when working for TH Ltd in the early 1970s he had been exposed (without protection) to asbestos from cutting up asbestolux fascias and soffits.

TH Ltd initially sought advice from the general solicitors they used but they did not have the specialist knowledge to effectively deal with the matter and so, TH Ltd contacted us.

Thankfully, the company founder AS and his wife MS were both still alive and of sound mind. We took full statements from them explaining in detail how and why he would never have been exposed to asbestos for them and must have confused the work he did for them with work he did elsewhere.

At the time, TH Ltd were very small and only built one or two houses a year and so cannot have employed anyone to regularly do the fascia and soffit work, as JN claimed. Being very small, the company also had no foreman save for AS himself, so JH cannot have worked there as foreman as he had claimed. Most importantly, any fascia/soffit work they had was done by specialist roofing contractors and never by carpenters like JN. Furthermore, MS, who purchased their materials, confirmed they never ordered asbestolux/other asbestos products for roofing materials.

We persuaded Zurich to drop any contribution claim.

Our client commented, “Excellent news. Many thanks on behalf of all at [TH]. Fantastic work.”

Brachers successfully resisted a mesothelioma asbestos claim brought by a former building labourer/painter against a building firm unable to trace their insurers.

The claim was for alleged asbestos exposure from the use of artex in the mid-1960s. We obtained a detailed account from the director and office manager of the company that they never used artex, as this was reserved for specialists and not painters/decorators. We argued that the claimant must have confused our client with employment elsewhere, and encouraged him to divert the claim.

The claim against our client was consequently dropped.

We defended an asbestos-related lung cancer claim for the UK division of an international pharmaceutical and food manufacturer.

The claim was from an ex-employee of a south-eastern perfume/soap oil processing factory, who was allegedly exposed to asbestos from lagging of pipes/sills in the late 1950s to early 60s. There were additional claims for earlier exposure by building employers and he was an ex-smoker.

We were instructed on the eve of the proceedings and identified likely breach duty but possible defences of causation (dependent on whether his exposure was above threshold to cause lung cancer) and contributory negligence.

We prepared and served a defence, not admitting breach and disputing causation and contributory negligence with a detailed request for further information regarding the claimant’s employment and exposure history. We traced the company’s insurers and before handing over to their panel firm, we contacted a former colleague who confirmed the claimant’s account and instructed our own chest consultant to advise on causation and damages issues.

Our client company, APF Ltd, was a medium-sized family company fitting heating plumbing and ventilation, established just after the war. We were instructed by MF, the current Managing Director, the founder’s son. They had been sued by leading asbestos solicitors acting for GM, a former plumber/gas fitter who had developed lung cancer, allegedly due to heavy asbestos exposure by numerous employers from the 1960s onwards. He had worked for our client’s company in the early 1970s when he claimed to have been exposed to asbestos from working with asbestos-based parts of heating systems and guttering and downpipes that he installed and from asbestos parts of old heating systems he replaced.

We took a full statement from MF who had just started working for his father’s company when GM was employed there. A supporting statement was also obtained from an old, long-retired company supervisor.

We got MF to describe in detail how and why GM would never have touched asbestos parts when working for the company and so must have confused this work with what he did elsewhere – on commercial rather than domestic properties (which did use a lot of asbestos). At the time when GM worked for them, the company’s work involved installing plumbing and heating equipment on a large new housing estate being built. The guttering and downpipes fitted were all plastic and the sanitaryware ceramic, metallic or PVC. The boilers fitted were balanced flue Potterton 44Cs that did not use any asbestos parts.

After we prepared and served a full defence and exchanged witness statements, we persuaded the other side to discontinue the claim against our client and just concentrate on the remaining four defendants. We also convinced those defendants that we would defeat any contribution claim from them.

PD Ltd was a medium-sized company making display signs for the retail industry. Their former employee SB had died of mesothelioma. His widow claimed this was caused by asbestos exposure from making up shop sign/display boards when employed by our client in the early 1970s. She instructed leading asbestos specialist solicitors. They claimed from PD Ltd damages of over £250,000 plus costs.

SB used to cut up the sign boards and sweep up debris for our client. His widow claimed the signs were made of asbestos insulation board (AIB). The company’s founder, the present MD’s son was still alive and he used to design the signs. We obtained a full statement from him to show that AIB was never used in manufacturing these boards and we supported this by our research confirming AIB was not used in that industry. We pointed out JB’s later career as a painter and decorator was a more likely source of asbestos exposure.

We served the witness evidence and then drafted and served a full defence to the proceedings. We persuaded SB’s solicitors not only to discontinue proceedings but to pay our client back their own reasonable legal costs of defending the case.

Our client commented, “… fantastic news and a huge relief to us … Thanks for everything.”

DN Ltd was a medium-sized building firm who had employed JB as a plumber from 1964 to 2009. JB had no other employer. He developed asbestosis and diffuse pleural thickening due to his unprotected asbestos exposure. His main exposure was from asbestos lagging used between 1964 to 1975. DN Ltd had no witnesses who could dispute the credible statement put forward by JB. We had to advise the company that they had no defence and to accept liability to save costs.

Our client had only found insurers from 1974, meaning these insurers would have only paid 16%. However, our analysis of JB’s evidence identified potential indirect exposure from asbestos in artex mixed up in JB’s presence right up to 1984. We successfully argued and persuaded our client’s insurers to increase their contributions to 40%.

In this case, we left the insurer’s solicitors to negotiate settlement of damages and costs as they were prepared to fully cover their own panel firm’s costs.

The initial saving we achieved for our client was a large five-figure sum. The later potential saving might be much greater as JB’s claim was settled on a provisional basis allowing him to come back to claim much greater sums if he later develops mesothelioma or lung cancer.

Our client was a medium-sized heating and insulation engineering company, II Ltd, set up in the early 1960s by the father of the current managing director, AB. Her father had since died. AW had developed asbestosis which he claimed was caused by mixing up asbestos lagging for II Ltd. He claimed he did this every Saturday morning, in the early 1960s, as an apprentice working in a builder’s yard. He accepted he was never formally employed by II Ltd but by a different company, NG Ltd, run by a second shareholder in II (NG Ltd had dissolved without traceable insurers). However, AW claimed he was effectively employed by II Ltd when mixing up the lagging for them as required by a shareholder of II Ltd.

Court proceedings had already been issued when we were instructed to take over acting from the local solicitor normally used by II Ltd. We obtained the witness evidence to demonstrate that, at that time, II’s founder always made up his own asbestos on site and that AW must have been making up lagging for the benefit of his employing company NG Ltd. The claimant was persuaded to drop the claim in December shortly before a trial due to start in January.