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Written on 4th September 2020 by

Boyes Turner’s asbestos – related disease specialists have settled a fatal asbestosis claim against E.On UK Plc for the family of a former power station worker.

Bernard was 79 when he instructed us, following his diagnosis of asbestosis, an asbestos – related condition that was affecting his breathing. We took a detailed witness statement from him, setting out his recollection of his asbestos exposure.

Exposure to asbestos

The majority of his exposure took place when he was working as an apprentice electrical fitter and then a qualified electrical fitter at Whitebirk Power Station in Blackburn in the 1950s and 1960s. He worked in the boiler room and turbine halls, repairing and maintaining the motors. There was asbestos lagged pipework all around him, which was constantly being disturbed by laggers hacking the lagging off in order that repair and maintenance work could be carried out. Afterwards, they re–lagged the pipes. They tipped bags of asbestos powder into big tubs, filling the air with clouds of dust. They then mixed it with water and applied it to the new pipework.

Bernard was often working only a few feet away and would get covered in dust. He was not provided with a mask and was never warned of the dangers of inhaling asbestos fibres.

Bernard’s condition sadly worsened very quickly and he passed away before the claim could be concluded.

The coroner recorded a verdict of death by industrial disease. However, the case was complicated by the fact that the coroner’s office would not agree to a post – mortem being 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.

We advised Bernard’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. This meant that it was important to carefully consider what amount to offer. It needed to be low enough to give the defendant’s representatives genuine cause for concern that there is a risk a higher amount could be awarded at trial. However, it is important not to offer such a low amount that the defendants accept it without any hesitation.

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.

After several weeks of consideration, 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 mesothelioma and asbestos disease 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.