Estate of former Blaenau Gwent Borough Council plasterer recover compensation following his death from mesothelioma

Dai was employed by Blaenau Gwent County Borough Council between 1981/82 and 2000/01. Whilst his main trade was plastering, he frequently had to assist with other tasks in Council properties that 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 would cut them with a hand saw, which released asbestos dust and fibres. He also had to demolish old sheds that had corrugated asbestos roofing and sometimes broke into pieces because they were so old and worn. He was also involved in the gutting of prefabricated properties that contained asbestos.

Partner Jennifer Seavor was not instructed until after Dai’s death so, unfortunately, she did not have an account from him about his work and the circumstances in which he was exposed to asbestos dust. 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 the 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 dust.

Once exposure evidence had been obtained, Jennifer sent a letter of claim 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, Jennifer’s 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. Jennifer realised that, once the sale completed, Dai’s widow’s capital would increase further meaning that she would be over the capital threshold for longer and required to continue paying full nursing home fees.

To exacerbate it further, Dai’s widow’s capital would increase further upon receipt of the damages from the claim. This is because, whilst a local authority cannot take into account damages from a personal injury claim in assessing adult care costs, the material exemption does not apply to fatal cases – an area of unfairness in the law.

Jennifer 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, it was contended that, had Dai’s life not ended prematurely due to mesothelioma (caused by the defendant 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 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 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 six-figure sum without the need for the Court hearing.

Dai’s case shows how people were still being negligently exposed to asbestos dust in the 1980s and beyond, long after its dangers were known. The defendant, as a Council, should have had the relevant knowledge to take steps to protect Dai, but failed to do so.

In addition, Dai’s case shows the novel financial circumstances that 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 any unusual aspects of a claim.

As expected, the defendant’s legal representative contended damages were not recoverable for the increased nursing home fees resulting from Dai’s death. However, the settlement agreed, whilst not broken down, reflected recovery for this unusual aspect of the claim.