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Written on 22nd April 2022 by

Boyes Turner’s asbestos – related disease specialists have settled a fatal asbestosis claim against Vosper Thorneycroft for the family of Jack*, a former joiner and cabinet maker.

We were instructed after Jack had sadly passed away, which made the case more difficult as he was no longer around to give testimony about his exposure to asbestos.  However, his family were aware that he was exposed to asbestos when working for Vosper Thornycroft (then called John I Thornycroft) in the 1940s, 1950s and early 1960s. 

Exposure to asbestos

He used to talk about Vosper Thornycroft a great deal and his family were able to provide significant detail about his work there and how he came into contact with asbestos. 

He started as an apprentice joiner and an old craftsman who worked there took him under his wing.  He developed a passion for woodwork and cabinet making, but he also experienced sheet metal working, riveting and various other disciplines during his years at Vosper Thornycroft. 

He came into contact with asbestos when carrying out riveting work in the metal hulls of the ships.  He used to talk about how he used to roll asbestos into balls and have ‘snowball fights’ with his fellow apprentices, having no idea of how dangerous it was.  He also used to talk about using asbestos insulation in the hull of the ships.

While this provided a useful starting point, it was necessary to obtain some first - hand evidence of Jack’s exposure to asbestos in order to succeed with the claim.  We were able to trace someone who used to work at Vosper Thornycroft at the same time as Jack and he provided a witness statement giving detail as to how they were exposed to asbestos all those years ago.

After Jack passed away, the coroner recorded a verdict of death by industrial disease.  However, the case was further complicated by the fact that a post – mortem examination was not carried out.

The importance of a post – mortem examination in asbestos disease cases

A post – mortem examination is usually required to prove an asbestos – related disease as the cause of death.  Lung tissue samples may be taken for testing and these should be retained until the claim has been concluded.  This is particularly important, as the presence or otherwise of asbestos fibres in the lungs will be an important factor in establishing whether or not asbestosis was the cause of death, as opposed to a non – asbestos related lung condition such as idiopathic pulmonary fibrosis.

If a post mortem is not carried out, or even if a post mortem is carried out but the lung tissue samples are destroyed, a Defendant may well succeed in arguing that the claim should be struck out on the grounds that their ability to investigate the diagnosis has been prejudiced. 

The fact that no post – mortem was carried out in this case meant that there were very significant difficulties to overcome if the claim was to be successfully concluded.

The use of Part 36 offers as a settlement tool

We advised Jack’s family to make a Part 36 offer to the Defendant’s representatives.  This means that we would tell the Defendant’s representatives that our client would be willing to accept a certain amount in settlement of the claim, but there are potential consequences which the Defendant’s representatives would need to carefully consider.

As such, it is an important tactical step.  By making such an offer, we put the Defendant at risk of being liable to pay more in interest and costs if we had subsequently secured a higher award at trial. 

While the lack of a post – mortem meant that there were significant risks that the claim would not succeed at trial, our Part 36 offer was set at a level which gave the Defendant’s representatives genuine cause for concern that a higher amount could be awarded at trial if the claim were to succeed and that they would then be liable for more interest and costs. 

The Defendant’s representatives decided to accept our offer and payment was received shortly afterwards.   While no amount of money can adequately compensate the family for their sad loss, we were pleased to be able to assist at such a difficult time.

For more information about how the asbestos and mesothelioma claims team can help you or your loved ones after diagnosis with an asbestos related disease contact the team by email on idclaims@boyesturner.com.

*Anonymised for client confidentiality