This claim involved very early and minimal exposure to asbestos during the course of the time when the Claimant lived with her father, an ex-Army Serviceman and also during the early part of her married life to her husband, who himself had served in the Army. Between the Claimant and her husband, they came up with a list of places where she had stayed as a child and also as an Army wife.
As it transpired the Claimant had been turned down for any potential claim by three leading Claimant law firms.
The Claimant and her husband were adamant that the Ministry of Defence had certain documents and certain procedures that they would have had to have adopted during the time that she was living in these establishments and this may give information about the potential asbestos exposure she suffered. The Client believed her main exposure was at a Naval Transit Camp with her father and her family some years ago and she recalled asbestos pipes running through the length and breadth of the place where she was staying and also helping her mother clean. There seemed to be a procedure called “march out” and families which had stayed in accommodation either permanently or temporarily would be expected to give the properties they were staying in an extremely thorough clean before they moved out. During this time the Claimant believed that she was exposed to asbestos both as a child and later in adult life.
A letter before action was written to the MOD and Statements etc. put together. The Ministry of Defence initially denied liability and matters came to a head following advice from Counsel that really the Claimant had no realistic prospects of success. Richard met with the Claimant and her husband and had a long discussion with her of the problems of the claim on liability, the lack of cogent witness evidence, documentary evidence and that there was going to be a high risk that if proceedings were issued (which were now becoming necessary to protect her from limitation arguments) that they would end up having to pay adverse costs on the basis that he would not be able to obtain ATE insurance for her, primarily due to Counsel’s Advice in respect of liability.
Proceedings were issued at the Portsmouth County Court, this was done tactically on the basis that we didn’t want to use the fast-track procedure in the Royal Courts of Justice as effectively this would have been fast-tracked through to a “show cause” hearing and it was likely that we would face rather increased costs on the basis that the “show cause” hearing would require attendance of Counsel (at least on the MOD’s part). With the County Court procedure clearly this was not designed to deal with claims for mesothelioma but it would probably help to reduce costs at least up to the point of disclosure.
Again a Defence was filed denying liability and matters got to disclosure and at that stage the Defendants did not file any List. The MOD was chased on a couple of occasions for a List and no documentation was forthcoming. The MOD then admitted liability and set out a proposed timetable bringing the matter forward to an Assessment of Damages hearing.
A Report from Dr Rudd, Consultant Respiratory Physician had already been obtained, in respect of causation of mesothelioma and one of the surprising features of the Claimant’s claim was that her biopsy result actually found an asbestos fibre which is very rare. It was effectively on this basis that Dr Rudd was able to make the causative link between the exposure she alleged during the course of her time living in Army accommodation and her condition.
This was also a difficult case in respect of quantum. The Claimant had undergone radical surgery, radiotherapy and chemotherapy and at the same time had taken a period of time off work but had amazingly returned. The Claimant was entitled to protective salary levels up to October 2012 and there afterwards she would then be paid for the work which she actually did.
A schedule of damages was put forward on the basis of past loss of earnings, future loss of earnings and loss of pension as well as care calculations for the help which her husband had done for her during the course of her diagnosis and her treatment stage of her illness and there afterwards. Surprisingly the Defendants argued that her loss of earnings were nothing to do with her mesothelioma (or subsequent treatment) but were down to the fact that she was suffering from stress at work.
Dr Rudd was asked various questions by the Defendants which he answered and this suggested that the Claimant may be in remission for a very long time, hopefully years, and if there was no reoccurrence of her mesothelioma within a ten year period then her chances of reoccurrence would become extremely small.
At that point the claim was then transferred to Master Whitaker’s List in the High Court and a further Medical Report from Dr Rudd was obtained and then questions were put to him by the Defendants. The matter eventually settled at a Joint Settlement Meeting in 2013 for a net sum of £155,000 on a Provisional Damages basis, given that the Claimant had already had substantial benefits payments which had to be off-set under the CRU Rules. A claim for Provisional Damages was agreed in this mesothelioma matter on the basis that upon any reoccurrence the Claimant would be entitled to seek further damages for pain, suffering and loss of amenity, any further future losses and care.