March 25, 2015

Mesothelioma cases: our recent successes


Claim allowed to proceed after a previous “full and final award”

In February 2014, Helen Childs, partner and head of the specialist Industrial Diseases team at RWK Goodman, succeeded in a hotly contested three-day High Court trial. This case, which Helen took over from another local law firm after they had doubts about the prospects of success, concerned the family of a man called Mr Lloyd, a 77 year old welder from Port Talbot who died from mesothelioma in 2012. He had instructed a Northern firm of solicitors years before who had pursued claims against three of his previous employers for pleural thickening/asbestosis. They eventually settled it after seven years for a full and final award of almost £9,000 in late 2011. His fourth employers, Humphreys and Glasgow, and their insurers Excess were not included in the claim. At the time they were (and had been since October 2006) refusing to entertain asbestos claims as they argued that the correct insurers would be those who were on risk at the time the individual became unwell, not the time when they worked with asbestos. This was the basis of long-running so-called “trigger” litigation which finally concluded in March 2012, confirming the insurers on risk at the time of exposure were liable.

By the time his pleural thickening / asbestosis case settled Mr Lloyd was desperately ill with what was later diagnosed as mesothelioma.

Individuals with mesothelioma can pursue any employer who negligently exposed them to asbestos and materially increased the risk they would develop mesothelioma. They can recover 100% of the compensation from that employer, not just the share that they contributed towards the risk. So by having failed to engage in the original settlement Humphreys and Glasgow’s insurers found themselves potentially facing a substantial six-figure claim.

Humphreys and Glasgow argued that it would be an abuse of process to allow the claim to proceed, and that they were prejudiced in defending it as it was out of time.

The case was listed before a category A High Court Judge, Her Honour Elizabeth Laing DBE, as it was recognised as being of particular importance and relevance to the way mesothelioma claims are handled.

Helen had to take to the witness stand for a day to give evidence about how the trigger litigation was approached in practice and to explain the actions of the first firm of solicitors.

The Judge rejected the defendant’s arguments on abuse of process, she also rejected the defendant’s arguments that they were prejudiced in having to investigate the claim at this late stage.

She said that in choosing to run the trigger litigation arguments from 2006 to 2012 the defendants “took a calculated risk, and the gamble did not come off.”

The claim will now be reviewed by the High Court which will go on to give judgment on whether Humphreys and Glasgow and their insurers are liable to pay Mrs Lloyd compensation and if so, how much. The compensation is expected to be a substantial six-figure sum if the claim succeeds.

“What if a claim is not concluded speedily enough?”

Timing is very important in mesothelioma cases, as much depends on whether a claim is settled in the individual’s lifetime or after their death. It’s crucial for the solicitor to make an assessment of whether the compensation payable to an individual with mesothelioma would be higher if settlement were to be delayed and the claim concluded for their estate – or the other way round, in which case the claim needs to be fast tracked and pursued as quickly as possible. The specialist asbestos judges in London are committed to fast tracking living mesothelioma cases, so very speedy settlements should be possible.

This month (March 2015) Helen Childs took a professional negligence case to mediation where this was exactly the issue. The claimant was a single man with no dependants who was relatively young when he was diagnosed with mesothelioma. Unfortunately, his original solicitors did not appreciate the need to settle his claim during his lifetime and failed to fast track his case so it was only settled after his death, substantially reducing the damages recoverable. RWK Goodman was able to settle the professional negligence claim for a very substantial six-figure sum.

Settlement in just 5 months for ex Greater London Council  worker

RWK Goodman were instructed in October 2014 to pursue damages for an ex Greater London Council (GLC) worker who had just been diagnosed with mesothelioma.

As a widower who was only in his sixties, it was vital the claim be fast tracked and concluded in his lifetime if at all possible. If not, no damages would be payable to reflect his income during the many years he will have lost as a result of the mesothelioma, and the likely level of compensation would plummet.

Court proceedings were commenced well before Christmas (within weeks of instructions being received) and judgment was entered, with an assessment of damages date fixed for late March.

The case has now settled just days before the trial was due to take place for in excess of £200,000, which means it has progressed from initial instructions to trial in just five months. While obviously nothing can compensate our client for his illness, he has gained huge satisfaction from knowing that he has provided for his son and particularly for his grandchildren, to whom he was very close.

Significant compensation agreed in our client’s lifetime

Also this month (March 2015) Helen Childs negotiated a substantial settlement for our client.

The client, who has mesothelioma, was employed as an engineer for many years. His claim, if he chose to settle it himself, was worth much less than a claim concluded subsequently on behalf of his estate and dependants would have been. We advised him that if the defendants would not engage in settlement discussions to achieve an enhanced lifetime settlement, then we would need to adjourn the assessment of damages until after his death.

After months of persistence on our part, the defendants finally agreed to a settlement meeting and the claim was settled by the client personally for substantially in excess of £500,000 very close to the likely level of compensation for his estate if the claim had been delayed and settled after his death.

This claim was referred to us as a result of Helen’s inclusion of RWK Goodman on the Mesothelioma UK charity’s approved solicitors list.

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