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:
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 article was authored by Judith Martin (Partner) and Timothy Lee (Associate).