InsightsClient Story - Industrial Disease Claims - POSTED: March 30 2022
Brachers settles former plant operatives asbestos-related DPT claim for five figure sum
Successful claim for client following his diagnosis with asbestos-related diffuse pleural thickening (DPT)
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Brachers has secured a substantial five-figure settlement sum for a previous employee of the BP oil refinery on the Isle of Grain in Medway, following his diagnosis with asbestos-related diffuse pleural thickening (DPT).
Partner and asbestos disease specialist, Jeremy Horton, said: “Diffuse pleural thickening is an often-overlooked asbestos-related disease which can be very debilitating. This case presented a number of challenges and many lawyers probably would have dropped the claim. However, we tenaciously persevered and were very pleased to achieve a significant settlement for our client, two weeks before a High Court trial.”
Summary of the case
GB was in his 80s and struggling with breathing problems when he instructed Brachers. He had clearly had asbestos exposure as a labourer and plant operative. However, his medical records were inconsistent about what conditions he had.
His main proven asbestos exposure turned out to be from BP’s Isle of Grain oil refinery in the 1950s. He probably also had asbestos exposure from asbestos building materials used on building sites in the 1960s and later from disposing of asbestos waste at Chatham dockyards. However, evidence to prove the other asbestos exposures could not be obtained.
We obtained and considered all available records and evidence to pursue the best case we could against the employers who seemed to have exposed GB to asbestos. In the end, we were able to achieve a settlement with BP.
Background to the case
Exposure to asbestos and liability for compensation
We had to establish liability against multiple employers for events occurring decades ago. GB’s memory was imperfect, and he had no witnesses. He appeared to have potential claims against:
- BP Oil Kent Refinery for sweeping up asbestos debris in their boiler house at their Isle of Grain Oil refinery in the 1950s
- M&J Engineers for brief exposure as a labourer/plant operative on a Medway building site in the mid-1960s
- J. Byrnes as a JCB operative dumping debris, allegedly containing asbestos, at the old Chatham dockyard site in the early 1980s.
Letters of claim were sent to all three.
Our client’s asbestos-related injuries
We carefully reviewed all the medical records. These referred to various medical conditions affecting GB’s breathing, including smoking-related COPD, diffuse pleural thickening (DPT), interstitial lung fibrosis/asbestosis and heart problems. Of these, DPT and the fibrosis/asbestosis were potentially asbestos-related. However the records were ambiguous about whether he had fibrosis or DPT or both. Only a small amount of asbestos exposure is needed to cause DPT. However, a lot of asbestos is required to prove it has caused lung fibrosis (and is therefore ‘asbestosis’). GB’s evidence did not prove this.
We recognised GB’s breathing problems were likely to have various causes. However, it seemed he probably had asbestos-related DPT. We also picked up other significant medical issues impacting on his life expectancy and support needs, including prostate cancer, heart issues and early vascular dementia. We instructed an independent chest physician who advised GB was suffering from moderately severe breathing problems – 75% due to DPT and 25% to other factors.
Issues around an ‘out of time’ claim
There was a potential issue that the claim might fall outside the three year time limit. Five years earlier a chest x-ray found lung scarring and DPT. However, we concluded GB had been told at that time that his breathing problems were due to COPD. It seemed he had only very recently been advised of an asbestos cause for his breathing problems. We therefore expected to overcome any limitation defence.
The challenge of changing case and evidence
Following our letters of claim, BP initially failed to respond and then denied any liability. This was on the grounds that, because it was only the 1950s, there was no legal fault and also that the claim was time barred (see above). We counter argued but they did not respond further.
Byrnes (who could not find their insurers) failed to respond.
The claim against M&J was dropped because we could not show enough exposure to prove negligence in the mid-1960s and no regulations applied in that case.
Proceedings were issued in the High Court RCJ asbestos list against BP and Byrnes, whose defences both denied liability.
Occupational hygienists were instructed by both us and BP. Our expert advised the majority of our client’s asbestos exposure was by BP and not Byrnes and was sufficient for them to be considered legally at fault, even in the 1950s. BP’s expert argued the mirror opposite.
There were then significant complications with our client’s medical health which impacted the claim. Previously our medical expert had said that 75% of our client’s serious breathing problems were asbestos-related. Following new chest CT scans he was forced to change his opinion and said that most of his breathing problems now had other causes and only 33% was due to asbestos. This significantly reduced the claim’s value.
The client also fractured his hip and his recovery was complicated by post-operative pneumonia (to which DPT made him vulnerable). He was then diagnosed with vascular dementia and ultimately became incapable of giving instructions. Therefore, his daughter (as attorney under his lasting power of attorney) had to take over conduct of the case for him.
The case was fully prepared for a four-day High Court trial.
The outcome of the case and how we helped our client
Our persistence paid off. Only two weeks before trial, BP finally accepted our case against them and agreed to pay a substantial five-figure sum plus costs. At that time, it also became clear the case against Byrnes was almost certain to fail. Their new solicitor pointed to public records showing GB’s work removing asbestos debris at Chatham docks must have been in the 70s, before his employment with Byrnes in the early 80s. Unfortunately due to his dementia GB could no longer give us instructions. We therefore advised the client to settle the claim against Byrnes for an additional modest sum.
How can we help you?
This claim for asbestos-related diffuse pleural thickening compensation was dealt with by Jeremy Horton. He is a Solicitor and Partner in the firm, specialising in asbestos compensation claims in Kent, Medway, Essex & beyond. Jeremy is passionate about helping asbestos disease victims and their families achieve fair compensation as quickly as possible. He is the only APIL Accredited Occupational and Asbestos Disease Specialist solicitor in Kent, Medway, Essex, Surrey or Sussex.
If you are considering a personal injury or industrial disease claim, you can book a 30-minute virtual appointment with our team to find out more about how we could help you.
This content is correct at time of publication
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