Compensation recovered for family of 43-year-old nan who died from mesothelioma after exposure to asbestos in 2001

Kieran Mallen began experiencing symptoms of shortness of breath and shoulder pain in March 2016, aged just 42. His symptoms continued and in May 2016 he was admitted to A&E. On admission to hospital, it was discovered that he had a pleural effusion in one of his lungs. The fluid was drained and tested but did not reveal a malignancy. Kieran’s condition continued to deteriorate. His doctors suspected that he had mesothelioma, but he sadly died before it could be confirmed.

Following Kieran’s death, a post mortem examination was carried out which revealed mesothelioma. Kieran’s partner contacted a firm of specialist asbestos disease solicitors but whilst they assisted her with applications for government benefits she was entitled to due to Kieran’s premature death, they advised they could not assist with a legal claim for compensation as there was not enough evidence to prove how Kieran had been exposed to asbestos.

Kieran had subcontracted for Chameleon Refurbishments, a company that refurbished restaurants for a well-known chain in London. He didn’t start working for them until 1999 – the year asbestos was banned. Kieran had been so poorly that he had been unable to give much information prior to his death but when his consultant had told him that he may have a cancer due to asbestos, Kieran told his partner about a job he did on a restaurant at Exmouth Market where asbestos had been found. Kieran was involved in stripping out the premises and refurbishing them. During this time, asbestos was discovered. Kieran reported it to his boss but told his partner that he had been told to carry on with the work until an asbestos removal company was brought in.

Kieran’s partner Debbie came to us and sought a second opinion from Jennifer Seavor about whether a legal claim might be possible. Jennifer took a detailed statement from Debbie regarding her recollections of conversations she had with Kieran about his exposure. Debbie was also able to provide some names of colleagues who had worked with Kieran at Chameleon Refurbishments. We were able to trace some of these witnesses who were able to provide statements. Frustratingly most of the witnesses came on to the jobs later in the contract once the gutting and demolition work had been done. Others only started working for the company years later, when the work the company did became more cosmetic in nature rather than full-scale demolition and refurbishment.

There was an added complexity because Kieran hadn’t been employed by Chameleon Refurbishments at the time it was alleged, he had come into contact with asbestos. He had been employed by the company at a later date but there was no evidence to suggest he had been exposed to asbestos during that later period.

A letter of claim was sent to the insurers of the company, as the company had since dissolved. We contended that Kieran had effectively been an employee during the first period of work when it was alleged, he had been exposed to asbestos as the nature of the relationship between him and the company was the same as when he later became employed formally. Medical evidence was also obtained to link Kieran’s alleged exposure with the development of his mesothelioma.

Our team continued to carry out extensive investigations into the premises at Exmouth Market to obtain documents relating to the building including possible asbestos surveys. Other jobs Kieran did were considered too.  Meanwhile, further efforts were made to contact and take statements from colleagues who had worked with Kieran at the time. One witness provided crucial evidence. He was an independent contractor but told us about the sites and how asbestos was often found. Other witnesses told us that health and safety was not very good and that jobs were always time-pressured meaning corners were cut.

While we continued to gather evidence, court proceedings were issued, and Chameleon Refurbishments was restored to the Register of Companies so proceedings could be served.

The company did not admit liability. They served witness evidence of their own – statements from three of the former directors of the company who contended that health and safety practices were followed, and that Kieran would not have been exposed to asbestos as alleged.

The Company also obtained a medical report from an expert of their own who called into question whether radiotherapy treatment which Kieran had received when he was young for non-Hodgkin’s lymphoma may have caused his mesothelioma. However, Kieran also had pleural plaques – scars on the lining of the lungs, which can only be caused by asbestos. In light of this, the medical experts eventually agreed that on the balance of probabilities Kieran’s mesothelioma had been caused by asbestos exposure.

An offer of settlement was made to the Defendant and at the same time we put forward a formal request for further information under the Civil Procedure Rules to the Defendants' witnesses to question them as to the contents of their statements. This put pressure on the Defendant and they eventually decided to enter into negotiations regarding settlement and the claim settled for a six-figure sum.

Jennifer said: "Kieran’s case is tragic. He was only 43 when he lost his life to mesothelioma. His partner approached me after being told by another solicitor that there was not enough evidence to pursue a claim. Kieran was exposed to asbestos when the dangers of exposure were well-known and following the ban of the use of asbestos in this country. Kieran should have been protected at work, but he was not. My team has spent several years trying to trace witnesses and locate historic documents to build a case against the Company he worked for. Sadly, the claim cannot bring Kieran back but I am pleased we have been able to hold the Company to account and recover compensation for his partner and family. Kieran's story shows how people are being exposed to asbestos even now. Whilst asbestos remains in buildings the risk remains."

At the end of the claim Kieran's partner Debbie said: “I cannot recommend RWK enough. They have worked tirelessly with a belief that there would be a positive outcome on my case. My solicitor, Jennifer, is so knowledgeable and passionate about issues surrounding my case, she also taught me a lot. RWK Goodman are compassionate and professional.”

Jennifer Seavor
Partner, RWK Goodman

£495,000 for Mechanical Engineer exposed to Asbestos by MOD

Mr G was diagnosed with pleural mesothelioma in December 2020 having been exposed to asbestos whilst working for the MOD as an apprentice mechanical engineer in Portsmouth Dockyard in the 1950s and 1960s. He was heavily exposed to asbestos whilst working on the construction of Royal Navy ships.

Although liability was conceded shortly after the service of court proceedings and an interim payment made, the case was very complex because Mr G was the primary carer for his wife who had considerable disabilities. Mr G wanted to settle his claim in his lifetime but doing so would usually mean not being able to recover for Mrs G’s dependency on Mr G in to the future which can usually only be claimed after death.

Nevertheless, Mrs G’s reliance upon her husband for services past the date of his eventual death was pleaded within the claim, including her increasing need for care over time due to a deteriorating spinal and arthritic condition.

Mr G was also a strong candidate for immunotherapy treatment, as he had already completed first line chemotherapy treatment. His future private medical treatment costs were recovered on the basis that the MOD would pay for all of his future medical treatment, for as long as he required it, as long as it was deemed reasonable by his treating consultant. These costs were paid in addition to his damages.

Since settlement of his claim, Mr G has commenced immunotherapy treatment and is now on his 4th round with all of associated costs being paid by the MOD for the duration of his lifetime.

Mr G said of RKW Goodman: “The company made a point of making personal contact. I felt part of the team and could contact anybody at any time. The legal procedure was long and complicated requiring detailed technical statements from at least 6 of the top specialists in the country and finally briefing counsel. The total time of this process from my first contact to the deposition of the sealed consent order took only 9 months but this hides the fact that interim and final payments were made well within this period. I feel it is a privilege and an obligation to recommend this company for anyone following a similar journey to my own and I and my family will always be very grateful to the entire team.”

Rachel James
Partner, RWK Goodman

Out of time claim settles on eve of the trial

Mr C was diagnosed with mesothelioma in the autumn of 2010 when he was aged 71 and his wife Mrs C was 70. He had worked for Babcock and Wilcox (boiler manufacturers) as a service engineer in the 1960’s with extensive exposure to asbestos in power stations and other industrial locations.  He remained with B&W for the rest of his career. When he was diagnosed the couple’s eldest daughter was very unwell with a brain tumour. She died early in 2011, leaving behind 2 young children.

After Mr C died in January 2012 Mrs C consulted solicitors but felt overwhelmed and unable to continue with the claim at that stage. The family’s other daughter then developed MS. Late in 2019 Mrs C consulted Helen Childs. Bespoke insurance was needed because of the limitation issue. The claim was issued in early 2020 and proceeded towards a trial on limitation as a preliminary issue. Considerable evidence of previous claims against the same defendants was produced, and they were unable to identify any prejudice in investigating the claim in 2019/20 as opposed to 2010/15. However they argued that the unless Mrs C had lacked capacity the court should not exercise its discretion to extend the usual 3 year time limit, which is a misunderstanding of the factors the court should take into account.  

The normal time limit for bringing a claim for mesothelioma is usually 3 years from the date of death. However the court has discretion to extend the time limit. The question of whether or not it is likely to exercise that discretion usually boils down to whether or not the defendants are likely to find it more difficult to investigate the claim later than they would have done if it had been brought in time. Despite the evidence of many similar claims being sued by these defendants, including one for a man who worked as a service engineer at the same power station as Mr C just 6 months earlier, solicitors for B & W refused to make any concessions or offers at all until just a couple of days before the trial when a barrister was instructed.

The settlement of her claim meant that Mrs C could help provide for her daughter who had MS, and be confident she could stay in the home she and her husband had lived in for many years. The claim only settled on the very eve of the trial.

Helen Childs
Partner, RWK Goodman