March 12, 2018

Claim for 89-year-old former power station worker settles more than 40 years after he was first diagnosed with an asbestos-related condition

RWK Goodman have recently settled a claim for compensation for a former power station fitter who worked at Hams Hall Power Station in the West Midlands for 30 years.

Mr R was born in 1927 and started work at Hams Hall Power Station, Coleshill in 1941 when he was aged 14.  He had an apprenticeship as a fitter and worked with huge amounts of asbestos lagged piped work over many years.  He worked at Hams Hall for the vast majority of his working life.  All of the turbine housings and pipework containing steam within the power station was thickly coated with asbestos to prevent steam from condensing.  The lagging on the turbine housing was 10-12 inches thick.  Mr R had to remove lagging to carry out repairs and maintenance.  Once repairs had been completed then laggers would mix up asbestos powder to form a paste and the pipework and vessels would be re-lagged.

As a result, Mr R was frequently working in thick clouds of asbestos dust.  He and the other workers would even throw snowballs of asbestos at each other.

He was first told that his work with asbestos had affected his breathing in 1977.  At that time he was encouraged by the power stations in-house doctors and nurses to make a government claim for a lump sum and Industrial Injuries Disablement Benefit but not to pursue a claim for compensation.  He was turned down for Government benefits.

He was given a letter by the power station in 1977 advising him to stop smoking and to “stand behind the barriers” when asbestos was being stripped.  In practice, this was impossible because as a fitter his job was to carry out repair and maintenance work which was often urgent and it was not possible to wait for other workers to remove asbestos lagging.  In any event, neither he nor any of the other workers were given masks to avoid the inhalation of asbestos dust until about 1983.

Some years later Mr R sought further medical advice regarding his breathing.    In the early 1990s his breathlessness increased and really began to interfere with his life.  He went back to the Doctor and after having further tests was diagnosed with asbestosis.  His breathing was considerably affected and he had to have long-term oxygen therapy at home which meant that he and his disabled wife were effectively housebound and dependent on other family members for assistance.  Another application for benefits and a lump sum was made to the Government - and this time it was successful.

As a lifelong Union Member, he asked them if there was anything that could be done, but they were unable to help.  They didn’t advise him that a claim for compensation was possible.

After receiving further advice from the Doctor he went to see the Union Solicitors who told him that any potential claim for compensation was out of time and in order for them to investigate it he would have to pay £1,000 for an advice from a barrister and that the outcome of the advice was uncertain. He was told any claim would be “expensive and difficult to prove”

Mr R was too worried about the prospect of legal fees to embark on what he thought might be a very expensive legal claim that he had been advised would be difficult.

Frustratingly some 11 years after he had been told that he needed long-term oxygen therapy involving the use of oxygen bottles at home his doctors advised him that this was not in fact necessary.

In 2016 Mr R’s condition deteriorated further. He had lost a lot of weight and was increasingly short of breath.  He was too unwell to undergo a biopsy - but after undergoing scans and other investigations was told that the doctors now suspected he had mesothelioma, an asbestos-related cancer.  It was at this point that he instructed Helen Childs of RWK Goodman to investigate a potential claim, even though the time limit for pursuing a claim had expired at least 20 and probably more than 35 years previously.

In pursuing claims for compensation that are out of time the crucial question is whether the Defendants (in this case the owners of the power station) had faced numerous previous similar asbestos-related claims are any more prejudiced in investigating the claim then they would have been if it had been brought in time.  RWK Goodman took the view that it would be very difficult for these defendants to establish prejudice.

The threshold of exposure to asbestos sufficient to cause mesothelioma is very low and given that there were letters in Mr R’s own file advising him to stay behind the barriers when asbestos was being stripped, being able to prove exposure to asbestos was almost a certainty.

On that basis, the claim was accepted and pursued and court proceedings were commenced.

The medical expert was not able to conclusively confirm mesothelioma, he didn’t think that the scans were sufficiently clear.  However, he could confirm that Mr R had asbestosis and had had asbestosis for many years if not decades.

A pre-action offer in settlement of £100,000 was made to the defendants.

Mesothelioma is an indivisible condition which means that anyone who is suffering from it can recover all of their compensation from any one defendant who is negligently exposed them to asbestos.  In Mr R’s case, whilst he’d worked for the power station for the vast majority of his working life he had also spent about 10% of his working life being exposed to asbestos with other employers.  The other employers were not pursued because we could not establish that their prejudice in investigating the claim late was as negligible as the prejudice on behalf of the power station.

Sadly, Mr R’s condition deteriorated and he died in February 2017.

The first post mortem confirmed that Mr R was not suffering from any asbestos-related condition at all.  To protect his family’s position RWK Goodman ensured that the tissue samples would not be destroyed and then obtained a second opinion from another doctor.  He confirmed that there was no evidence of mesothelioma in the tissue samples he had seen (but that the tissue samples were not necessarily from the right part of the lungs for mesothelioma to be excluded) but there was clear evidence of asbestosis and a very high level of asbestos fibres in Mr R’s lungs.

The claim therefore proceeded as an asbestosis/pleural thickening claim.

The defendants, E-ON - the successors to CEGB who were the occupiers of the power station - did not assert to advance any positive case that they had been prejudiced by the claim being bought late.

However, their own doctor disputed our evidence that Mr R was suffering from a 40% asbestos-related respiratory disability - putting it instead at 20%.

Asbestosis is a divisible condition - which means that any unpursued periods of exposure reduce the amount of compensation recoverable - the Claimant made a reduced offer to the Defendants taking into account this discount for the unpursued periods of exposure and, after negotiation, his claim was settled for £57,000.

The compensation settlement was reduced from the overall likely value of £98,000 to take into account the risk that the Claimant might fail to persuade the court to exercise its discretion to allow the claim to proceed even though it was 20 or 30 years out of time, and also to reflect the unpursued periods of exposure.  After taking into account a deduction for the litigation risk and unpursued periods of exposure, a barrister felt able to recommend settlement at £57,000.

Helen Childs of RWK Goodman comments:

“This claim illustrates the importance for anyone affected by an asbestos-related condition to seek specialist legal advice.  Some of the huge asbestos law firms have very strict protocols about what they can and can’t accept and it’s  unlikely that any of these firms would have been able to help Mr R when he was diagnosed with suspected mesothelioma more than 30 years after he was first diagnosed with asbestosis, and more than 40 years since he was diagnosed with asbestos-related changes in his lungs. The normal time limit for pursuing claims is 3 years.  However, the criteria that the court has to consider when deciding whether or not exercise its discretion under the Limitation Act to allow claims to proceed out of time makes it very clear that if the defendants cannot establish that they are any more prejudiced than they would have been in investigating the claim if it had been brought in time then it should be allowed to proceed.  We were quite sure that this was the situation here as Mr R’s employers had faced scores if not hundreds of similar claims and exposure to asbestos was clearly documented in his own personnel file.  We therefore took this decision - with the backing of the insurers to accept the claim on a No-Win No-Fee agreement.  We are very pleased that the claim has settled bringing Mr R’s family some closure.”

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