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Written on 4th January 2022 by

Laura acted for Roger*. He was diagnosed in the autumn of 2019 with a localised malignant mesothelioma, an asbestos-related cancer. This was a very rare type of mesothelioma; ordinarily, mesothelioma is “diffuse". Roger's mesothelioma was described as localised because it had not spread diffusely over the surface of the lung (which is ordinarily the case). Prevailing medical view is that localised mesothelioma is simply an anatomical variant of malignant mesothelioma which more characteristically presents in diffuse form. Roger* underwent surgery in October to resect the tumour. Although his surgery was complicated by the development of atrial fibrillation and haemorrhage (requiring a second operation), he felt well after the surgery and was suffering from just 5% respiratory disability due to the lobectomy (the operation to remove the mesothelioma).

Benefits

With the help of an asbestos charity, Roger* applied for industrial injuries disablement benefit. The Department for Work & Pensions turned down the application on the basis that the mesothelioma was not “diffuse" and so did not therefore fulfil their strict criteria for a successful award. Laura instructed a pre-eminent medical expert that often gives evidence in mesothelioma cases in Court who said the decision from the Department for Work & Pensions was completely wrong. He said the histology and immunohistochemistry of localised mesothelioma are identical to those of the more typical diffuse mesotheliomas. There was no reason to think that the cause of localised mesothelioma is any different from the cause of a diffuse mesothelioma. Laura and the asbestos charity submitted the report to the DWP on appeal, but it was still rejected.

Asbestos exposure

Roger* recalled asbestos exposure with a number of entities. One was called Collier & Catley which was a company which was dissolved many years ago. Roger* told Laura he undertook work at the Huntley & Palmers factory in Reading when employed by Collier & Catley for whom he worked between 1958 and 1962 as a plumber's mate. He recalled a machine room which was being lined with asbestolux sheets and he swept up at the end of the day. As the company was no longer in existence Laura needed to locate the insurers for the period in question. Searches revealed that although there was employers' liability insurance, the period of insurance did not commence until 1964 which was after Roger's period of employment. This avenue could not be pursued any further.

There were other entities which were also small companies with no insurance that were dissolved many years ago. The one company that could be pursued was called A.P. Faulkner (Plumbing) Ltd which later became A.P. Faulkner (Heating) Ltd. Roger* was there from 1963/64 to the early 1970s. He explained to Laura that he cut and fixed asbestos gutters and rainwater pipes by handsaw. He also worked alongside carpenters who were cutting asbestolux sheets for soffits. He also fitted asbestos flue pipes and soil pipes on various building sites around the area. He used a substance called "kos" which he believed contained asbestos and also used an asbestos mat for soldering and putting behind pipes.

Court process

Faulkners were still a live company and there was insurance for the majority of Roger's employment. Laura notified the claim to the insurers, but the allegations of asbestos exposure were vigorously denied. The Defendants maintained that guttering, floor pipes and flue pipes were made from other asbestos-free materials. The Defendants produced witness evidence to defend the claim and Laura set about obtaining supportive statements from three witnesses who could support Roger's allegations of negligence. Proceedings were issued in May 2020 and Roger* had indicated that he would prefer a provisional award. This is because there was a risk that the mesothelioma would recur. A provisional award would compensate him for the loss that he had suffered due to the localised mesothelioma, but would allow him to come back to Court for further damages should the mesothelioma return or develop and become a malignant condition.

Court Applications

This was a case that took many different twists and turns. Very unusually, Laura received an indication from the Employer's Liability Tracing Office in the spring of 2021 (more than a year after the initial application) that there was, in fact, insurance for Collier & Catley from 1960 onwards. It was therefore very important to include Collier & Catley Ltd in the claim, especially given the stance from the other Defendant that they would be defending the claim. The asbestos exposure that Roger* recalled was in an earlier period of employment than Faulkners, when the health and safety requirements according to the standards of the day were not as strict as in later years. It was very important that Laura tried to ascertain the approximate year of Roger's work at the Huntley & Palmers factory. As these events had occurred around sixty years ago, Roger* understandably struggled to remember the exact year of the work. However, Laura was able to track down another witness who was able to pinpoint the year and Roger* agreed with that witness. Laura made an urgent application to the Court to add in Collier & Catley as a Second Defendant which was successful despite the Defendants trying to argue that the trial date (January 2022) would be jeopardised.

At the same time it became apparent that unfortunately, Roger's condition had changed. In March 2021, progressive disease was noted on his right diaphragm. Our expert said that with the benefit of hindsight, early disease had been evident on a July 2019 CT scan performed before surgery, implying that the mesothelioma was not, in fact, localised at the time that the first operation was out. Our expert confirmed that the asbestos exposure alleged with both A.P. Faulkner (Plumbing) Ltd and Collier & Catley Ltd both contributed to the risk that Roger* would develop mesothelioma.

Roger* underwent further surgery in May 2021. Again, he suffered quite difficult complications with a leak of air from the lung requiring chest drainage and he also some emphysema. He was discharged from hospital a few weeks later and gradually regained his energy.

Expert reports

This was a very document-heavy case. Engineers were instructed for Roger*, and both Defendants, and there was disagreement with the engineers as to the products used, but also the likely dose of asbestos exposure from the activities described. Now that Roger's condition had changed, it was clear that care expert evidence would be needed because Roger* would like to have professional carers at some point in the future. It was no longer appropriate for Roger* to request a provisional damages award. The Court timetable was very tight. He was discharged from surgery in June 2021 and the trial was set down for January 2022. Further medical reports were needed, but Laura made another Court application for permission to rely on a care expert report which would detail the future professional care needs of Roger* and also any equipment that he and his wife would need to buy. Both Defendants accepted that care evidence was necessary and they also obtained their own reports. Both parties had to act swiftly to obtain the necessary evidence and Roger and his wife met on video calls with the care experts instructed by all parties at very short notice.

Settlement

The Schedules of Loss (the documents that set out the financial value of the case) could not be finalised until the care reports were available which meant no offers could be made. The first Schedule that had been served at the outset was very different to the final one, given that at the outset the Roger* had wanted a provisional damages award for a disease causing a 5% disability.

The Court timetable was for Roger's Schedule of Loss to be disclosed by 26 November 2021. Laura was able to serve the schedule a few days early and the Defendants made an offer which Laura advised Roger* to reject.  With assistance from the legal team Roger* put forward an offer of £150,000 plus an adjournment of the head of loss for future treatment so that Roger* could come back to Court to obtain funding for future treatment should he need treatment such as immunotherapy that is not always available on the NHS.

The Defendants tried to negotiate but Laura advised Roger* to stand firm and was meanwhile preparing for trial. A few days later, the Defendants accepted Roger's offer of £150,000 less than a month before trial.

Laura says:

“This was an unusual and difficult case. Due to the change in mesothelioma during the lifetime of the civil case, urgent work was needed regularly so that the trial date of January 2022 was not jeopardised. There were further complications that a Second Defendant needed to be added in. There was a denial of liability from the Defendants throughout and we had five witnesses who were prepared to come to trial to give evidence in the claim. These witnesses were invaluable in helping the claim be brought to a successful conclusion. I am delighted for Roger* and his wife that settlement has been reached albeit late in the day so that Roger* did not need to give evidence at trial. He can now concentrate on enjoying time with his family with the peace of mind that if he needs treatment that is not available on the NHS, we can approach the Defendants to fund it. The one frustration was the application for industrial injuries disablement was only successful the third time. This has meant that Roger* has missed out on over a year of benefit payments. Nevertheless all the professionals that have worked on this case, the engineer, care expert and John Paul Swoboda at 12BW have worked tirelessly and swiftly to meet the tight but necessary court deadlines which enabled us to put pressure on the Defendants for which I am very grateful.”

Roger* said:

“I want to thank all of the witnesses that came forward to assist with my claim. They were invaluable in jogging my memory and undoubtedly helped bring my case to a successful conclusion.

The advisors at HASAG Asbestos Disease Support were also wonderful with persisting with my applications for benefits and obtaining me a blue badge.

Lastly, Laura, you have been absolutely amazing over these past couple of years, your expertise and dedication has won the day for us and people like us, we cannot thank you enough. We would not hesitate to recommend you to anyone who suffers the same misfortune as Roger* in the future.”

*name changed to protect client confidentiality

For more information about how the mesothelioma and asbestos disease claims team can help you or your loved ones after a diagnosis of an asbestos related disease, please contact the team by email on idclaims@boyesturner.com or by telephone on 0118 952 7199.