Claiming compensation because of an asbestos-related condition has various hidden trapdoors and complexities. One rarely known complexity can arise seemingly out of the blue and causes thousands of claimants to receive a discounted amount of compensation in their pocket due to no fault of their own, where the relevant employer and their employers’ liability insurers are both insolvent. Barry’s claim for compensation was staring down the barrel of this gun, and it was Melloney and her team’s job to ensure that the trigger was not pulled. Circumstances of Asbestos exposure Barry* was employed by Cape Building Products Limited and Cape Universal Building Products Limited. Although this was one continuous period of employment as a Research Assistant, Barry’s employment spanned two different Cape entities. His work resulted in daily asbestos exposure. Undertaking fireproof and tensile strength testing of asbestos boards meant that he handled cracked, stressed, and broken asbestos sheets day in and day out. The fireproofing process was multifaceted and required Barry to load the boards into a furnace, heat the furnace to temperatures of up to 1400⁰C, and then remove the boards from the furnace once it had cooled. The fire-breathing furnace would stress and crack the boards, which were left overnight to cool. Barry would then carry the boards out of the furnace and sweep up the residual dust. Tensile strength testing was simpler but resulted in a similarly dirty and dusty environment being created. Boards were deliberately broken to test their strength and performance. The length of board would be laid across two supports, and a weight would be repeatedly dropped onto the board to test its resilience. Once the board reached the point of breaking, Barry would clean the testing area, which would be coated with dust. He would dispose of the battered and bruised asbestos boards. He also created samples to test, mixing loose asbestos with water and other binding materials. Others did this role as well in the lab, with sacks of asbestos being brought into Barry’s lab by labourers. Testing fire suits and aviation products Barry was also exposed to asbestos during his employment with Bell’s Asbestos and Engineering Limited. His employment as a development test engineer required him to conduct fire testing on fire suits used by the fire service. Tests designed to test flammability and longevity required Barry’s testing methodologies to measure the deterioration of the suit’s material, which was made from asbestos. When strained to the point of deterioration, dust particles would linger in the air, with more and more dust being thrown into the atmosphere when the fabric ripped and frayed. He also tested aviation products such as aircraft hoses and fire seals for aircraft engines. The rigorous testing designed to test durability inevitably resulted in the destruction and breakdown of the items being tested, and consequently resulted in dirty and dusty work environments being created. Barry was also regularly in the sewing shop, which was a particularly dusty environment. The workers in the shop made everything from scratch, and rolls of the fabric containing asbestos were cut and sewn in the sewing shop. Initial signs of symptoms Barry was a keen walker with his wife and enjoyed exercising. In September 2022, he experienced an unexpected shortness of breath and pounding chest following a rather elementary walk by his standards. He chalked up the struggles to a pre-existing asthma condition and the possibility that he may be developing a chest infection, as he had just returned from holiday. Antibiotics and steroids prescribed by his GP helped for a short period but did not lead to a significant improvement or improved ability to walk up inclines. A chest x-ray was subsequently arranged, showing fluid on his right lung. After draining the fluid, Barry noticed some improvement but was not back to his pre-September 2022 self. Inconclusive test results were received from the fluid drained, resulting in Barry undergoing a VATS biopsy and talc pleurodesis in late November 2022. As a result of this biopsy, Barry was diagnosed with mesothelioma in December 2022. The claims process and seeking legal help Upon learning of his diagnosis and speaking with the asbestos support group, HASAG, Barry contacted Boyes Turner’s asbestos disease claims team. Barry began working with Melloney, who obtained details of his work history and possible sources of asbestos exposure. Identifying defendants and insurers It quickly became apparent that Barry had been exposed to asbestos during his employment with different companies (“defendants”) and at different sites. From a claim perspective, this meant that multiple different insurers would be involved. It also meant that thorough research would need to be conducted to ensure that the different possible defendants were insured during the time when Barry was employed and exposed to asbestos. Barry’s recollection of his time employed by Cape Building Products Limited and Cape Universal Building Products Limited was damning from an asbestos exposure standpoint. However, the companies were no longer trading, and the insurance company that was responsible for these companies’ liabilities had since become insolvent themselves, meaning that the FSCS had to “foot the bill” in the event of a successful claim. Melloney promptly notified the relevant insurers and the insurers of Bell’s Asbestos and Engineering Limited of Barry’s potential claim and began working towards building the case. Gathering evidence and issuing proceedings Expert evidence was obtained to support Barry’s mesothelioma diagnosis and future care needs. Melloney worked on valuing the claim. Liability was admitted by the insurers involved, but with no offers forthcoming, Melloney issued Court proceedings to progress matters. A settlement was eventually reached, thereby avoiding a final Court hearing. Settlement terms and compensation breakdown However, the FSCS would only fund the liabilities of Cape Building Products Limited and Cape Universal Building Products Limited at 90% of the agreed settlement because the relevant exposure was pre-1972. Thankfully, Melloney had included Bell’s Asbestos and Engineering Limited in the claim, ensuring that Barry received the full value of the agreed settlement, as the insurers for Bell’s Asbestos had to pick up the shortfall. Had Bell’s Asbestos not been included in the claim, Barry’s compensation would have been paid at 90%. The settlement agreed included provision for future non-NHS treatment, and a Court order has given Barry the peace of mind that any appropriate non-NHS treatment he requires in the future will be funded for him. *Names have been anonymised 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 asbestos@boyesturner.com or by telephone on 0118 952 7199.
