I recently settled an asbestosis claim for Brian, three days before a court hearing to finalise the claim, following the death of his father Henry, in March 2012, through asbestosis.
I was initially instructed by Brian in August 2014. Brian told me that his father, known as Jim, had been exposed to asbestos whilst working as a boilermaker/welder between 1955 and 1972 for the Ministry of Defence (MOD) at Devonport dockyard in Plymouth.
Jim had developed pleural plaques, benign asbestos scarring on the lining of the lungs, and had made a claim for compensation in the 1980s which had been successful. Following settlement of his claim, Jim’s condition had deteriorated and he was anxious that he had developed a more serious asbestos-related disease. He contacted his former solicitors and sought medical advice from his GP but was told there was no change in his condition despite his deteriorating respiratory disability. Brian had been shocked when upon Jim’s death, it was discovered that his father did in fact have asbestosis or fibrosis in his lungs due to asbestos exposure.
Investigations as to how Jim had settled his pleural plaques claim
The first thing that we needed to clarify was how Jim had settled his pleural plaques claim. When a claim for asbestos disease is made, a person has the opportunity to settle either on a provisional or full and final basis. Settling on a provisional basis gives a person the right to claim further compensation from the company/companies that exposed them to asbestos if their condition worsens or they are diagnosed with another asbestos-related disease in the future. However, alternatively, a claim can be settled on a full and final basis meaning that the person settles their current claim and receives a slightly higher amount to reflect the risk they are at of perhaps developing a more serious condition in the future. However, settling on a full and final basis means that further compensation cannot be claimed if the person’s condition deteriorates or they develop another asbestos-related disease.
Brian thought that his father had settled on a provisional basis but there was no evidence to prove this. I began to investigate how Jim had settled his original claim. I established that Jim had instructed a firm called Bond Pearce in the 1980s in relation to his pleural plaques claim. I contacted them, however they had destroyed their file of papers and could not confirm how the original claim had been settled.
I therefore wrote to Plymouth County Court to see if they had any record of the settlement but again they had no papers stored. I then obtained Jim’s past medical records from his former GP and hospitals to see if these contained any clue and was pleased to discover that Jim had forwarded to his GP a letter from his solicitors dated 10 January 1990 which set out the terms of settlement. These confirmed that he or his estate had the right to claim further compensation if he developed mesothelioma, asbestosis or lung cancer in the future. Whilst this was not the formal court order, it confirmed the terms of settlement which showed the claim had clearly been settled on a provisional basis.
However, the letter also referred to there being a long stop clause in the original order, the term of which was that Jim could only claim further compensation if he developed one of the conditions within 15 years of settlement of his original claim. The letter stated that it was however possible to extend this period if an application was made to court before the expiry of it. This meant that the 15 years had expired in around 2005 and there was no evidence to suggest that an application had been made to court to extend the time period. This caused an unexpected further issue which had to be resolved.
Researching the court rules
When I looked into this issue further it became clear that at the time Jim settled his original claim for pleural plaques, the rules in place were the Rules of the Supreme Court (RSC) Order 37 which required any application for further compensation pursuant to a provisional damages order, to be made within a specified period and any application for an extension of that period had to be made within the original timeframe.
However, in 1998, the Civil Procedure Rules (CPR) were written and came into force in 1999 and the requirement was not replicated in Rule 41.3. It is now no longer necessary for there to be a specified period in which a person must apply for further damages when he settles on a provisional basis other than the time period required by the Limitation Act which is three years from the diagnosis or a person’s date of death. However, due to this problem I thought that it was necessary to make two applications to court for permission to proceed.
Applications in the High Court of Justice
As the papers from the original claim had been destroyed, we did not have the original claim number to make the requisite applications to court. I therefore issued a further claim form at court to obtain a new claim number. I then drafted an application with witness statements to support my request for firstly an order to retrospectively extend the time limit in the original provisional settlement order to allow Jim’s family to claim compensation following his death from asbestosis outside the 15 year timeframe agreed originally and secondly for an order actually permitting his family to apply for further compensation.
I had to act quickly as March 2015 was the third anniversary of Jim’s death and I thought it necessary to make the applications prior to that date to avoid a potential argument by the Ministry of Defence that they had been prejudiced by further delay.
The applications were filed at court and the matter listed for a hearing. Just prior to the hearing, following detailed consideration of my witness statements regarding these issues, the Ministry of Defence agreed by consent, that the timeframe could be extended and that Brian should be allowed to claim further compensation for his late father. In addition, we agreed a timetable of things that needed to be done and evidence that needed to be obtained before the court could hear the evidence and decide how much compensation should be paid. Liability was not in issue as had been resolved in the original pleural plaques claim.
What further evidence was necessary?
I instructed a medical expert for a report to confirm that Jim’s lung fibrosis had been caused by his asbestos exposure and for an opinion as to the extent of his respiratory disability caused by it. The expert was of the opinion that Jim had significant respiratory disability due to his non-asbestos-related chronic obstructive pulmonary disease (COPD) but that there were clinical and radiological signs of developing asbestosis since 1992 and that this gradually progressed. His breathing difficulties also progressed and by the time of his death in 2012 he was 20% disabled by his asbestosis.
One of the main issues to be addressed was whether Brian could claim his late father’s care home fees. His father had gone into a care home in 2005 as he had been unable to continue managing and caring for himself at home due to his respiratory disability. He had spent many thousands of pounds paying for his care privately and I contended that the Ministry of Defence should also pay his care home fees. They put questions to the medical expert, who was of the opinion that but for Jim’s asbestosis and respiratory disability associated with it, he would have been able to manage at home and would have not required admission to the care home when he did.
Following this evidence, I assessed the value of the claim and advised Brian regarding making an offer of settlement to try and settle the claim out of Court. We made an offer in September but no response was received from the solicitors acting for the Ministry of Defence.
The court listed a hearing for 10 December 2015 for a judge to assess the amount of compensation Brian should receive for his late father.
Settlement of the claim
Just prior to Hearing, on 4 December 2015, the Ministry of Defence made Brian an offer of £90,000 in settlement of his claim which he accepted. The court hearing was therefore cancelled.
I am very pleased to have achieved a successful outcome for Brian. He feels that his late father’s concerns about his asbestos exposure and disease weren’t taken seriously, which meant that he was not diagnosed with asbestosis in his lifetime. Jim had suffered for the last 20 years of his life with the undiagnosed condition which had an effect on his day to day life and eventually required his admission to a care home.
Jim was a remarkable man and an important member of the community in which he lived during his life. He had been in the RAF Bomber Command as a Lancaster Rear Gunner during the Second World War and survived 32 missions over enemy territory. In 1984 he embarked on a project to build a monument to pay tribute to the Air and Allied Forces and in 1989 a monument on Plymouth Hoe was unveiled. He was instrumental in the project’s success. His ashes now lie beneath the monument.
The compensation claim was complex firstly because we had to initially clarify how Jim had settled his original pleural plaques claim and then when this was discovered, a new issue presented itself in that the terms had contained a long stop and his former solicitors hadn’t extended the long stop period before its expiry and then their file of papers was destroyed. I am really pleased to have successfully managed to overcome these issues and recover compensation for Jim’s family.
“Our choice of using Boyes Turner to fight this case for us was the best decision we could have made. The experience has been a positive one throughout. Jennifer Seavor was absolutely brilliant, using her extensive legal knowledge to overcome so many complicated obstacles, and keeping us fully informed. We are absolutely delighted with this amazing result!”.