InsightsInsight - Personal Injury and Industrial Disease - POSTED: October 20 2020
Brachers secures six-figure sum for Australian widow of mesothelioma victim
Her husband had been exposed to asbestos while working as a pipe insulation lagger in the UK.
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Brachers has settled a mesothelioma claim for a six-figure sum for an Australian widow in UK proceedings, after the case was previously dropped by another leading firm.
Partner and asbestos disease specialist, Jeremy Horton, said: “Our client is the Australian widow of a former UK Cape asbestos insulation lagger at BP oil refinery, Isle of Grain in Medway, Kent. Tragically he died after a two-and-a-half-year battle with the asbestos disease, mesothelioma.
“Passage of time and COVID made the case more difficult to investigate at times but that we have been able to provide for his widow financially, means that we have done justice to his legacy.”
This was an employer-liability mesothelioma asbestos disease claim involving the late AW. His only confirmed asbestos exposures was while working as a pipe insulation lagger for Cape at BP’s Isle of Grain oil refinery between the late 1950s and early 1960s. Following this, he emigrated to Australia with his family in the 1970s. He died there of mesothelioma, after a longer than usual period of suffering of more than two-and-a-half years, leaving dependent widow, PW.
Shortly before he died, AW had instructed one of the world’s leading law firms in industrial disease who rejected the claim. Brachers was instructed by his widow two years after he had died and we established there was a good claim for compensation mesothelioma, which we pursued on a no win, no fee basis.
What gave rise to the claim?
Between 1958 and 1961, AW was employed as a lagger at BP’s refinery on the Isle of Grain. For part of that time – March to July 1961 – he was employed there by Cape Insulation Ltd (formerly Cape Insulation & Asbestos Products Limited) as a lagger’s apprentice. AW was then exposed to harmful levels of asbestos dust and fibres negligently and in breach of statutory duty.
AW’s work involved pouring raw asbestos into a drum and mixing it with water to make a paste. The process generated high levels of asbestos dust and fibres which AW breathed in and he often looked like a snowman as a result. He also applied asbestos paste by hand to pipework and removed and replaced old asbestos lagging from pipework.
AW was not given a respirator, dust mask or other protection and was not warned about the dangers of asbestos inhalation.
Due to this exposure AW went on to develop lung cancer, mesothelioma, increasing breathlessness, debility and pain until he died prematurely aged 76. Without his mesothelioma he should have lived another five years. During that time his wife would have remained dependent on his income and services.
Progress of the claim
Brachers obtained the previous solicitors’ file when we took on the claim. One of the challenges identified was that although AW had described substantial asbestos exposure, he only recalled his employer as a ‘Scottish company’. The official Revenue employment records only started towards the end of his work at the refinery and no such company was listed. However, our enquiries indicated two things previously overlooked:
- The employment record listed his first employer as Cape Asbestos & Insulation Ltd, part of Cape asbestos manufacturing group, who in the late 1950s took over another lagging company with a Scottish-sounding name, Andersons.
- Occupiers of BP oil refinery were very much a live business and would have owed him their own statutory duties under the Asbestos Industry Regulations 1931, regardless of the employer.
We took a full statement from AW’s brother JW, who also worked at the refinery at a similar time. He confirmed AW had worked there and that Cape was then an employer of laggers. Following this we:
- Took a hearsay statement from the first solicitor confirming what AW had told him before he died.
- Obtained tax facing cards from the Revenue which indicated AW had worked for Cape Insulation.
- Checked AW’s medical records and marriage certificate for clues of employment history.
- Took a statement from PW based on what she recalled her husband had told her about his employment history.
Matters were complicated and delayed by having to act for a client on the other side of the world. We were able to deal mostly with PW’s daughter, AG, who also lived in Australia, however during the COVID-19 lockdown which affected the part of Australia where AG lived, instructions were more difficult to obtain.
After gathering the necessary supporting evidence, full letters of claim with supporting documents were sent to both Cape and BP.
When we finally obtained the relevant Australian medical records for both AW and PW, we instructed UK chest consultant, Professor Twort, to provide a supporting medical report. We obtained further statements from PW to address medical issues which fleshed out points from the medical records and gave the medical expert a clearer picture of the medical history in the absence of a live victim who could be examined.
Professor Twort advised:
- Mesothelioma from asbestos exposure as a lagger at BP’s refinery was the cause of AW’s death.
- The asbestos exposure during AW’s four months with Cape Insulation would have contributed.
- 2.65 years of symptoms was attributed to mesothelioma.
- AW would probably have lived a further 5.3 years (taking account his general medical/smoking history), but for his mesothelioma.
Cape served what employment records they had and denied liability on the grounds that these showed AW had only briefly worked for them and the nature of his employment was unclear but that he had previously worked as a lagger for Scottish company, Millers, before going into the armed services. Cape said this fitted with what AW had told his first solicitor. Our enquiries found that Millers had long since dissolved leaving no trace of insurers.
We discussed Cape’s points with PW and JW. They accepted that AW must have been referring to Millers when he recalled working for a Scottish company as a refinery lagger. However, they recalled AW continuing to work at the refinery during the time he was recorded as Cape’s employee, and stated he had never been in the armed services. The only job they believed he could have done for Cape was insulation lagger.
We prepared further witness evidence to address these points. Our scrutiny of Cape’s employment records also found that the vague term ‘sheet metal worker’ was used to refer to laggers of metal pipes and that the record noted in pencil ‘IoG’, which appeared to refer to Isle of Grain.
The outcome of the case
We put these points and further evidence back to Cape but received no formal clarification of their position. Despite chasing, BP failed to state their position.
We obtained full supporting evidence of the past and expected future losses and then prepared a schedule of losses. We served this with supporting documentary, witness and medical evidence and invited a settlement offer. Cape indicated they would be prepared to make an offer but were waiting on BP.
As no offer came, proceedings were prepared and commenced in the High Court RCJ asbestos specialist list. Both defendants put in detailed defences. Cape denied liability. BP did not admit liability but served a detailed counter schedule, challenging numerous aspects of the schedule.
A court telephone review hearing was fixed, and BP’s solicitor called with a potential six-figure joint offer. There was no offer breakdown, but a detailed counter-schedule had been served. We reviewed the schedules and evidence and after making calculations we concluded the offer was below our reasonable minimum valuation.
We prepared a letter of advice to our client setting out her options. On the client’s instructions, we rejected the offer and made a part 36 offer for a sum £29,000 higher, with an explanation how we had come to our higher figure. Days before the court review hearing the defendants’ solicitors accepted our offer.
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