Laggers claim against 11 defendants settles one week before court hearing

Mr H, a 72 year old man, brought a case against 11 of his previous employers for asbestosis and asbestos related pleural thickening. 

Asbestosis and pleural thickening claim

A lagger’s mate and then a lagger by trade, Mr H worked for a number of “usual suspects” from the 1960s onwards.  When it was clear that the defendants would not negotiate to settle the claim, proceedings were issued against the following companies:

• Mayers (Insulations) Limited
• Thermac Insulation Limited/Kinkia Limited
• Boiler Insulation & Chemical Company Limited
• London Covering Company Limited
• Cape Darlington Limited/Darlington Insulation Company Limited
• Union Insulation Company Limited/Cork Insulation & Son Asbestos Company Limited
• Arthur H Wilton Limited
• Mellowford Services Limited/Apex Insulation Company Limited
• Bernard Hastie & Co Limited
• Magnesia and Asbestos Insulations Limited
• J E D Insulations Limited

Mr H was employed by these companies from approximately 1960 until the 1980s and he worked with asbestos every day until the mid 1970s when he became a supervisor. He mixed up asbestos powder with water to form a paste on a daily basis. He then lagged the pipes together with other laggers without warning or protection. 

Employers gone out of business

Many of the companies that Mr H worked for had been dissolved, liquidated or were no longer trading.  We managed to trace insurers for every company listed.  There was a small period with J E D that was uninsured.

Other health problems

Mr H was also suffering with health problems that were unrelated to asbestos.  These included smoking-related emphysema and a cardiac condition.  We instructed a respiratory physician on behalf of Mr H and the defendants also instructed their own expert. 

Both experts agreed that Mr H’s pleural thickening was caused by previous asbestos exposure and that he was also suffering from asbestosis.  The two experts agreed that Mr H was suffering with a respiratory disability of 60%-70% with the asbestos conditions causing 25%-30% and the remainder due to his other conditions.  His life expectancy was just three years. Mr H was very severely disabled and completely housebound by the time the claim was issued.

Judgment against all 11 defendants

As Arthur H Wilton Limited failed to file their defence by the required deadline, we applied for “Judgment in Default” against them. The Judge at the High Court agreed the application and Judgment against Wiltons was awarded.

At the first Case Management Conference, we argued for judgment against the remaining ten lagging companies that exposed Mr H to asbestos.  The Judge agreed that judgment should be awarded against Boiler Insulation, London Covering Company Limited, Cape Darlington, Union Insulation, Mellowford Services (previously Apex Insulation) and Bernard Hastie.  The Judge further ordered that if the remaining defendants, Mayers (Insulations), Thermac Insulation Limited, Magnesia & Asbestos Insulations Limited and JED Insulations Limited could not prove their case by March 2014 then judgment would be entered against them.

None of the lagging companies produced any evidence to defend the case and judgment was effectively entered against all 11 of them.  This meant that Mr H had won his case and the only remaining point was to decide quantum, that is the amount of money he should be awarded.

Provisional or full and final award

We advised Mr H that he had a choice of award.  The Court has a discretion to award provisional damages.  A provisional award compensates a claimant for the condition he has now, but allows him to come back to Court to claim further damages if he develops a new asbestos related condition or if there is a deterioration in the current condition.  Mr H opted for a full and final award.  A final award compensates a claimant for the condition that he has now but also any future possible conditions.  This means that the case is closed and cannot be reopened at a later date.

Assessment

The judge set down a timetable for exchange of evidence.  He set a date for the “assessment of damages” to be heard in October 2015.  An assessment of damages is a hearing where the Judge hears the arguments from both the claimant and the defendants as to the value of the claim.  Despite judgment being entered against all 11 defendants and the experts agreeing the medical evidence, the defendants made no offers to settle Mr H’s case until a fortnight before assessment.  We suspect the main reason for this was because it was difficult for the defendants to put forward a co-ordinated proposal.  Mr H was willing to attend the assessment of damages but was likely to need a carer and a private ambulance to transport him to the Royal Courts of Justice.

Settlement

Thermac Insulations Limited co-ordinated the claim on behalf of all defendants and finally came up with an offer a few days before the assessment.  The offer was rather low, and we and Mr H’s Barrister believed that a greater figure would be achieved in front of the Judge at the Assessment in October, but Mr H wanted an end to the Court proceedings.  He accepted the offer and was happy with the result, but was frustrated that it took the defendants until very close to the hearing date before opening negotiations.