InsightsClient Story - Industrial Disease Claims - POSTED: May 18 2023
Brachers wins widow’s asbestos lung cancer claim – instructed 12 years after death
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£1/3 million recovered for widow of scaffolder exposed to asbestos at BP oil refinery
Brachers’ asbestos compensation team secured £337,000 in compensation, for the widow of a scaffolder exposed to asbestos at BP’s Isle of Grain oil refinery, even though no link to asbestos was established before he died. Jeremy Horton, Brachers Partner and asbestos disease specialist, acted for Sandra Parsons, the widow of Kenneth Parsons (“Kenny”), a scaffolder from Kent. We brought a successful claim for damages for Kenny’s fatal lung cancer against three defendants: Vange Scaffolding, RMD Kwikform (successors to GKN Mills) and BP Oil. Asbestos was not previously advised as a cause of Kenny’s lung cancer and we were not instructed until 12 years after he had died. This presented us with numerous challenges in proving he had been exposed to enough asbestos to cause lung cancer and in establishing the losses. However, our thorough research and unwavering tenacity secured a £1/3 million settlement for the client after court proceedings, without any barrister involvement.
Summary of our client’s asbestos disease claim
This was a difficult, asbestos-related lung cancer disease claim brought by Sandra Parsons, the widow of Kenneth Parsons, a scaffolder. Before his lung cancer diagnosis, Kenny had been a light smoker and was still working full-time. Given Kenny’s smoking history before he died, no one had thought to question whether asbestos might have caused his lung cancer and no post mortem was ever carried out. This oversight may have been supported by his job as a scaffolder, a trade not generally heavily exposed to asbestos, depending on the trades the scaffolding served.
Sandra started suspecting that Kenny’s lung cancer may have been caused by asbestos after their son (following training as a health and safety adviser) raised the issue. Sandra found from an internet search that Jeremy Horton of Brachers had successfully acted for a former colleague of Kenny’s – Keith Perkins, who developed asbestosis after working for one of Kenny’s previous employers, Vange Scaffolding at BP’s Isle of Grain oil refinery. Sandra contacted Jeremy who advised that a compensation claim might be possible, despite Kenny having died 12 years earlier, as the family had never been made aware of the potential link between Kenny’s lung cancer and asbestos exposure.
How we established the potential asbestos disease claim
We needed to prove that Kenny had been exposed to asbestos by employers/occupiers with insurance or with the means to pay. More challengingly, we needed to prove he had been exposed to enough asbestos of the right type to cause lung cancer: 25fibre/ml/yrs + of mainly amosite (‘brown’ but not always brown) or crocidolite (‘blue’) asbestos. As a rough rule of thumb this requires five to 10 years of moderate exposure to mainly amosite asbestos. The need for such extensive exposure is why asbestos lung cancer claims are much harder to win than mesothelioma (or diffuse pleural thickening) claims, where very small amounts of asbestos can cause the disease.
We obtained Kenny’s historic employment record from HM Revenue & Customs (HMRC) but these only list tax years of different employments. Following their unhelpful recent policy, HMRC refused to disclose ‘tax facing cards’ without a High Court order (not possible at that stage) which may have allowed a more precise calculation of employment/exposure periods.
We spoke to a number of Kenny’s former work colleagues including our previous client, Keith Perkins. From interviewing these witnesses and by reference to the HMRC employment history, we managed to sketch a picture of Kenny being daily moderately exposed to amosite asbestos for several years in the late 70s/early 80s when working for Vange and then GKN Mills at the BP’s Isle of Grain oil refinery. The exposure came from heated pipes that were heavily lagged with asbestos.
We were fairly confident of the approximate end date of his work there, based on when the refinery closed in August 1982. However to prove a minimum five years’ exposure period we needed to establish an approximate start date. Following our further discussions with Sandra, she recalled that she and Kenny went to see “Saturday Night Fever” straight after it came into the local cinema, a few weeks after they had started dating, but that they had an earlier “pre-date” meeting the previous summer and that Kenny was then already working as a scaffolder for Vange. We established that film was first screened in Chatham in March 1978 and so working back, Kenny must have been working for Vange at the refinery by August 1977. This established our five-year exposure period.
The witness evidence was put to a leading asbestos specialist occupational hygienist, who advised Kenny had probably been exposed to enough asbestos at the oil refinery to cause lung cancer. On that basis, our chest consultant confirmed his lung cancer was probably caused by asbestos exposure, although his smoking also played a part. The case was presented to the insurers for Vange Scaffolding and RMD Kwikform, as employers and to BP Oil as occupiers of the oil refinery.
How we secured the successful asbestos disease claim settlement
Usually, solicitors are instructed before or shortly after the asbestos disease victim’s death. Here we faced an unusual challenge in trying to prove what Kenny would have earned since 2007 if he had not died of lung cancer, as well as valuing his extensive domestic services from that time. This required further forensic detective work, including tracing and interviewing Kenny’s former scaffolding work colleagues about what they had earned since 2007 and up to what age they continued to work before retiring and research as to services rates during that period. We then employed forensic accountants to calculate Sandra’s financial dependency claim over the last 15 years.
We prepared and presented a detailed schedule of past and future losses, factored in a reduction for the smoking contribution and invited the defendants’ joint settlement offer. Instead of making an offer, the defendants initially served a report from their own occupational hygienist, disputing Kenny’s lung cancer was caused by asbestos: he estimated his asbestos exposure was only about half the level needed to trigger lung cancer.
We subsequently challenged the report with further evidence and detailed comments from our experts on the report. This evidence was disclosed, and a low, unsatisfactory offer was then received.
On our advice we then guided Sandra through a series of counteroffers and eventually prepared proceedings in the High Court specialist asbestos list in London. As experienced specialists we were able to do this without involving counsel.
The defendants served their defences and counter schedules. They accepted they had negligently exposed Kenny to asbestos but, as expected, they disputed his asbestos exposure was high enough to cause his lung cancer. Somewhat inconsistently they also argued the proceedings had been issued many years too late because Kenny or his family should have known his lung cancer was caused by his asbestos exposure – something which the defendants were also denying!
Advising Sandra with our experience in these types of cases, we agreed with the defendants a timetable of steps to prepare the case for a three-day trial. The defendants then made their first serious offer of £290,000 plus costs. We advised Sandra that our realistic valuation of the claim was £370 to £400,000 but there was about a 35 percent risk of losing at trial. We then guided Sandra through a further series of counter offers, resulting in an agreed settlement of £337,000 plus costs.
What our client says
“I can’t thank you enough for your help with all of this, even when I had my own doubts about it all. Thank you for believing me.” Sandra Parsons
How can we help you with an asbestos disease claim?
This asbestos-related lung cancer claim was dealt with by Jeremy Horton, with the valuable help of legal executive, Natalie Marsh, senior litigation executive, Lyn Lester, legal assistant, Nicola Todd, and various trainees, including Paige Harrison and Sophie Jarvis. Jeremy is the lead Partner of Brachers’ Personal Injury and Industrial Disease team. He specialises in asbestos compensation claims in Kent, Medway, Essex and 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 feel that you may have an asbestos disease claim book a free 30 minute appointment with one of our friendly team or call us on 01622 690691.
This content is correct at time of publication
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