Estate of former Blaenau Gwent Borough Council plasterer recover compensation following death from mesothelioma
Dai was employed by Blaenau Gwent County Borough Council between 1981/82 and 2000/01.
Whilst Dai’s main trade was plastering, he frequently had to assist with other tasks in Council properties which were being refurbished and he came into contact with asbestos-containing materials. Dai often had to remove old fascia boards and soffits, which were made from asbestos insulation board. He had to be cut with a hand saw, which released asbestos dust and fibres. He also had to demolish old sheds which had corrugated asbestos roofing. He removed the sheets which sometimes broke into pieces as they were old and worn. He was also involved in the gutting of prefabricated properties which contained asbestos.
Specialist solicitor, Jennifer Seavor, was not instructed until after Dai’s death so unfortunately, we did not have an account from him about his work and the circumstances in which he was exposed to asbestos. His widow had dementia and resided in a care home so could not assist. The claim was brought by Dai’s executors - two of his friends who kindly took on the role of caring for and assisting Dai and his wife when he became ill. They were able to give us names of some of Dai’s former colleagues. We tracked them down and they helpfully spoke to us about the work Dai did and gave information about how he was exposed to asbestos.
Once exposure evidence had been obtained we sent a letter of claim was sent to the Council. Medical evidence was obtained from an expert in support of the claim. The evidence was subsequently disclosed to the solicitors for the Council, but an admission of liability was not forthcoming. As a result, steps were taken to issue and serve court proceedings. Shortly after an admission was received, followed by an interim payment of compensation.
Once liability had been resolved focus turned to what could be recovered for Dai’s widow and Estate. The claim had some unusual aspects to it because of the circumstances prior to Dai’s death. Dai’s widow suffers from dementia and resides in a nursing home operated by the Defendant Council. She had lived there for a number of years before Dai began to suffer from symptoms of mesothelioma. However, prior to the onset of his wife’s dementia she and Dai lived together in their marital home, where Dai remained prior to his death.
When Dai was alive the capital value of the martial home was not taken into account by the local authority (the Defendant Council) in their assessment of the nursing home fees payable by Dai’s wife. The marital home was owned by the couple as joint tenants and therefore passed to Dai’s wife automatically when he died. Further, the couple’s savings transferred to his widow upon Dai’s death. Accordingly, upon Dai’s death his widow immediately became liable for the full cost of nursing home fees (almost £750 p/w) as her savings were over the maximum capital threshold.
The executors of Dai’s estate, and his widow’s attorneys, put the marital home up for sale after his death. We realised that once the sale completes Dai’s widow’s capital would increase further meaning she would be over the capital threshold for longer and required to continue paying full nursing home fees which she had not prior to Dai’s death.
To exacerbate it further, Dai’s widow’s capital would increase further upon receipt of the damages from this claim apportioned in her favour as whilst a local authority cannot take into account personal injury damages in assessing adult care costs the material exemption does not apply to fatal cases – an area of unfairness in the law.
We contended that Dai’s widow had a “a reasonable expectation of pecuniary advantage [in respect of nursing home fees] from the continuance of the life of the deceased”. Basically, we contended that had Dai’s life not been ended prematurely by mesothelioma caused by the Council’s negligence, his widow would not have become liable for the nursing home fees as the assessment of her liability for such fees would have been based on her state retirement pension only, as had been the case prior to Dai’s death.
The claim was put forward and as expected the Council did not accept some of the arguments made. The Court listed the claim for an Assessment of Damages hearing in October 2023 to review the evidence and assess what the Defendant Council should pay. However, a few days prior to the hearing the claim settled for a sum more than £200,000 without the need for the Court hearing.
Dai’s case shows how people were still being exposed to asbestos negligently in the 1980’s and beyond, long after the dangers of it were know. The Defendant, as a Council, should have had the relevant knowledge to have protected Dai but failed to do so. In addition, Dai’s case shows the novel financial circumstances which can arise in mesothelioma claims where a person’s life is much reduced from the norm due to their illness. It really is necessary to consider the family’s circumstances as a whole and consider unusual aspects to the claim. As expected, the Defendant’s legal representative contended damages were not recoverable for the increased nursing home fees however the settlement agreed, whilst not broken down, reflected recovery for this unusual aspect of the claim.