Successful secondary exposure mesothelioma case of the widow of a former asbestosis sufferer

Boyes Turner’s asbestos and mesothelioma claims team were instructed by the family of Mrs B, who had sadly died from mesothelioma in May 2017, having been diagnosed in August 2015.

Mrs B was living in America for some years prior to and at the time of her death. She had 5 adult children and had lost her husband to asbestosis and pleural thickening. Her husband had had a successful claim in 1995 against his former employers, Cape, following his lifetime diagnosis.

Mr B’s asbestos exposure

Mr B had worked for various Cape companies in England during the 1960s, 1970s and 1980s. We were able to rely on Mr B’s witness statement prepared for his own case, which gave a detailed description as to how he was exposed to asbestos.

Mr B worked for Cape as a sprayer’s mate, loading raw asbestos into a hopper which fed into a machine which sprayed asbestos. He described being covered in asbestos dust and debris. He then progressed to the role of sprayer and was responsible for handling the hose which sprayed asbestos, for example on beams in factories. He continued to be heavily exposed to asbestos.

Mrs B’s secondary asbestos exposure

Mrs B’s exposure to asbestos came about from washing her husband’s dusty clothes and overalls. She used to complain about having to do the washing and was frustrated that the overalls came home to be washed. She had to shake out the dusty clothing and overalls before washing them.

The evidence we obtained supported that Mrs B had exposure to asbestos whilst washing her husband’s work clothes and overalls and that this was the cause of her mesothelioma.

The asbestos claim

We initiated the claim against Cape and were able to refer Cape to Mr B’s own successful claim in 1995.

Liability was quickly admitted by Cape’s representatives and once all the necessary evidence was served on them, a reasonable offer was made which the family were happy to accept to conclude matters.

High profile cases against Cape

Cape companies have been involved in high profile cases over the years, the most recent decision being the Supreme Court appeal decision in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 which decision was a handed down at the end of July 2019.

Early in 2017 the trial of Concept 70 v Cape International Holdings Ltd was heard. The case was brought against Cape by insurers who had paid compensation to former employees who had developed mesothelioma as a result of exposure to asbestos during the course of their employment. The compensation was paid out on those employers’ liability policies but, through those insurers, the employers then claimed a financial contribution from Cape on the basis that the employees had been exposed to asbestos from products which had been manufactured by Cape.

These claims by the employers, through their insurers, against Cape were all settled after the trial had ended but before the judgment had been delivered.

Saving asbestos records for future cases

Following a tip-off that documents were to be destroyed, Graham Dring, on behalf of the Asbestos Victims Support Groups Forum UK, made an application under a court rule which deals with third party access to court documents.

He sought disclosure of the documentation and the hope was that those documents used at the trial could be preserved and obtained to assist future cases.

At the High Court, the Master ordered that Mr Dring was to be provided with the hard copy trial bundle, including the disclosure documents, all witness statements, expert reports, transcripts and written submissions.

Cape appealed to the Court of Appeal, which held that the “records of the court” were more limited and would not normally include trial bundles, trial witness statements, trial expert reports, trial skeleton arguments or written submissions, or trial transcripts.

The Court of Appeal found that the court had an inherent jurisdiction to permit a non-party to obtain certain further documents but there was no inherent jurisdiction to permit non-parties to obtain trial bundles or documents referred to in skeleton arguments or written submissions, or in witness statements or experts’ reports, or in open court, simply on the basis that they had been referred to in the hearing.

Both parties appealed to the Supreme Court. Cape argued that the Court of Appeal did not have jurisdiction to make the order that it did. The Forum argued that the court should have made a wider order.

This case was all about how much of the written material placed before the court should be accessible to people who are not parties to the proceedings and how it should be made accessible to them.

The Supreme Court held that the Court of Appeal had the jurisdiction to make the order that it did but that it also had jurisdiction to make a wider order if it were right to do so. The basis for making a wider order would have been the court’s inherent jurisdiction in support of the principle of open justice.

The High Court is now required to consider whether further access is required pursuant to the open justice principle as described by the Supreme Court and we wait with interest to see if any, and if so which, further documents are released.

The case has been described as a “landmark decision for access to documents to non-parties and a victory for open justice”.

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

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