Lifetime settlement for asbestos related lung cancer sufferer after a drawn out, contested claim

The mesothelioma and asbestos claims team were instructed in 2017 by Mr Jones* following his diagnosis of lung cancer in 2015.

Exposure

Mr Jones had worked for H Pickup Ltd (“the defendant”) during the 1960s and 1970s as a sheeter, constructing asbestos-clad buildings at various sites.

In the course of his work he cut and drilled asbestos insulating board and asbestos roofing, and he worked in areas where others were carrying out similar tasks. He was exposed to asbestos dust and debris as a result. It was understood that his lung cancer had been caused by this asbestos exposure.

Investigating the claim

We set about investigating the claim, speaking to former colleagues of Mr Jones, and gathering medical evidence and information about his financial losses.

Mr Jones had previously suffered from tonsil cancer and it was important to establish whether his lung cancer was a recurrence of that previous tonsil cancer or a new primary cancer. If it was a new primary lung cancer, to succeed with his claim we had to be able to prove that his lung cancer was caused by his asbestos exposure.

Our medical expert was of the opinion that his lung cancer was a new primary cancer and caused by asbestos exposure. The case proceeded accordingly but Mr Jones’s prognosis was poor.

The defendant disputed the claim and court proceedings were issued. The case became long and drawn out.

Issuing court proceedings

After the issue of court proceedings, a timetable was agreed between the parties and ordered by the court, which allowed both parties to obtain evidence from an expert engineer, a respiratory consultant and an oncologist, whose instruction was to be limited to the issue of whether Mr Jones’s previous tonsil cancer had affected his life expectancy (which issue would have an impact on the potential value of the claim). There would then be a court hearing to determine the future steps to trial.

The expert engineers were largely in agreement and therefore the key issue in the case was causation, in other words could Mr Jones prove that asbestos had caused his lung cancer.

Contested claim

When the defendant’s solicitors served their two medical reports, it became clear that their instructions to their expert oncologist had gone far beyond the permission of the original court order, which had limited the instruction to the issue of whether Mr Jones’s previous tonsil cancer had affected his life expectancy. Instead, they had asked their expert to consider causation in full and he therefore gave an opinion as to whether Mr Jones’s lung cancer had been caused by asbestos exposure. His view was not supportive for the claim.

We did not have such equivalent evidence, not having the court’s permission to obtain such evidence, and were therefore disadvantaged by the disclosure of such oncology evidence, which went beyond the permission of the court.

The defendant’s solicitors invited us to discontinue. We immediately applied to the court for an order refusing the defendant permission to rely on their medical evidence, the defendant’s respiratory consultant referring to the oncologist’s opinion which “contaminated” his own opinion. We said they should not be entitled to rely on either report.

A Master at the Royal Courts of Justice heard our application and was persuaded to refuse the defendant permission to rely on the entirety of their medical evidence and a timetable to trial was ordered with a certificate of urgency for trial, given Mr Jones’s poor prognosis. This meant that the defendant would have no medical evidence to rely on at trial and was an incredibly bold decision of the Master, who was persuaded by Mr Jones’s poor prognosis and his desire to have his claim determined in his lifetime.

Shortly after that court hearing, the trial date was fixed for 26 July 2019. It is only in very exceptional cases that the court will be persuaded to vacate a fixed trial date, especially in a case where the claimant has a limited life expectancy, like Mr Jones.

We then served our updated schedule of loss on the defendant and made an offer to settle. Negotiations ensued with the defendant’s solicitors, whilst they applied to the court for permission to appeal the Master’s decision to refuse them permission to rely on their medical evidence.

Settlement

Before permission to appeal had been granted, a six-figure settlement was agreed for Mr Jones’s claim and the claim was concluded, giving him certainty and an end to a very long, drawn-out, contested claim.

We are delighted to have achieved such an excellent outcome for Mr Jones and that he will have the benefit of the compensation in his lifetime and the peace of mind that comes with the claim having now settled.

In addition, part of the claim included the recovery of hospice costs for Mr Jones’s local hospice who had been involved in his care. We were delighted to recover their outlay for them.

For further information about asbestos related lung cancer claims please contact the mesothelioma and asbestos claims team by email on idclaims@boyesturner.com

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* Names have been changed to protect clients privacy