Clyde & Co has successfully defended an unusual asbestosis claim valued in excess of £140,000. This interesting case demonstrates that it is still possible to successfully defend a claim where judgment is entered at a show cause hearing. Even in such a circumstance, defendants should not resign themselves to making a damages payment without undertaking appropriate investigations.
The Claimant alleged that his asbestosis was caused from exposure when employed by our client ("the Defendant"). The Claimant was employed by the Defendant as a joiner between 1968 and 1984. He alleged his exposure occurred between the years of 1968 and 1977.
His case was that the vast majority of exposure occurred with the Defendant and he pursued no previous employers.
Breach of duty
At the show cause hearing the Master entered judgment against the Defendant for breach of duty to the Claimant up until at least 1976. We held no evidence to the contrary at this point.
The parties subsequently proceeded to obtain their own occupational hygienists' reports. Our expert was of the opinion there was a probability that the Claimant was exposed to significant asbestos, and possibly more so, with an employer other than the Defendant.
We investigated further the unpursued employer, noting the Claimant's previously successful pleural plaques claim, which had been established by a review of the Claimant's medical records.
An application for our own medical evidence to address diagnosis and causation was rejected at the Show Cause hearing. Despite the Court's stance on this we instructed a chest physician, Dr Hind, who called into question the asbestosis diagnosis.
Part 18 questions were put to the Claimant about his pleural plaques claim.
The Claimant maintained that he did not know which employer he pursued, yet he could remember how much he was paid and who had handled his claim. It was put to the Claimant that if his previous claim was against the Defendant then the payment he had received was in full and final settlement, meaning his current claim was estopped.
In the alternative, if the pleural plaques claim had been made against a former employer, then in the current case he had clearly played down his exposure elsewhere, in order to maximise his recovery from the Defendant. The issue of Fundamental Dishonesty was raised in this context.
The Claimant was faced with a number of issues:
- A previous claim had been identified which had been significantly downplayed by the Claimant;
- Causation, in our view, was not proven;
- The engineering evidence raised additional credibility arguments against the Claimant and provided evidence to argue for a substantial Holtby discount for the unsued period of exposure
We informed the Claimant that, if he proceeded to trial, we would seek a finding of fundamental dishonesty based upon his evidence of exposure and seek a costs order made against him.
Shortly after, a Notice of Discontinuance was received from the Claimant's solicitors.
With this successful outcome our potential savings would have been in the region of £140,000.00 (not including savings of defence costs in proceeding to Trial).
What can we learn?
- This was a claim where at the outset the Defendant's position looked bleak. Judgment was entered on the issue of breach and the Court refused permission to obtain separate evidence to investigate causation. No other employer was being pursued and so apart from a short Holtby discount for an untraced period the insured faced paying the claim in full. However, methodically investigating the claim and instructing suitable experts paid dividends. Despite the Court initially refusing permission for separate evidence, investing in evidence from an Occupational Hygienist helped to add credibility to arguments that the Claimant was playing down exposure elsewhere. By obtaining our own medical evidence this gave us further ammunition to attack the Claimant's claim.
- The threat of a fundamental dishonesty finding with consequential costs penalties obviously gave the Claimant pause for thought. When the Claimant's Notice of Discontinuance was received there was particular emphasis on the Defendant not pursuing the Claimant for costs. When the evidence allows, it is always worth raising fundamental dishonesty issues and emphasising that the Defendant will not be shy in pursuing the Claimant for costs.
- This is also a healthy reminder of the importance of carefully reviewing the background and records to establish if there is any evidence of historic claims. In this case the Claimant's previous claim against another employer was compelling evidence that the Claimant's account of exposure in this claim was inaccurate.
This article was authored by Judith Martin (Partner) and Timothy Lee (Associate).