Insurance & Reinsurance
Clyde & Co has successfully defended a claim containing novel allegations that the claimant’s pleural thickening had been caused by asbestos exposure linked to the nature of a family member’s employment.
The claim provided an interesting comparison into 'bystander' or secondary asbestos exposure cases, previously considered in mesothelioma cases such as Maguire v Harland & Wolff PLC and Carey v Vauxhall Motors, which both considered the indivisible injury of mesothelioma, as opposed to a divisible injury such as pleural thickening.
In our successful defence, the claimant had alleged that due to bystander exposure to asbestos from her late stepfather’s overalls she had developed pleural thickening. At an early stage we set out the hurdles faced by the claimant and the strengths of our case. Our response clearly planted seeds of doubt in the claimant’s mind as to whether they had a realistic case against our client, leading to the withdrawal of the claim before proceedings were served.
The claimant initially alleged that her pleural thickening was caused from exposure to asbestos when her stepfather brought home his overalls which were allegedly covered in asbestos at the end of each day after working at the defendant’s premises.
The claimant alleged exposure for the entirety of her (late) stepfather's employment from 1974 to 1976, who had died from mesothelioma and had brought a successful claim against our client as defendant.
However, the claimant’s draft witness statement was voluntarily disclosed and provided insight into the changing basis of the claim. Her statement focused on exposure sustained during her own employment manufacturing fuse boxes making no reference to the alleged bystander exposure.
After cross-referencing her stepfather’s dates of employment with her witness statement it appeared that the claimant was then an adult, had already moved out of the parental household, was in full-time employment and had moved in with her sister during the alleged bystander exposure period. Her allegations were not credible especially where there was a clear alternative for much greater exposure during her own employment.
The claimant was faced with a number of issues:
The claimant, seemingly recognising the weakness in this bystander claim duly discontinued following issue of the claim but prior to formal service on the parties.
With the successful outcome the potential savings would have been significant especially since the defendant company would have been liable as no PL cover had been identified.
What can we learn?