UK: Clyde & Co Wraps Up Defence Of Claim Alleging Asbestos Exposure From Insulation

Last Updated: 13 December 2018
Article by Judith Martin and Ucheoma Ihekwaba

Most Read Contributor in UK, March 2019

We are pleased to report that Clyde & Co has successfully defended a mesothelioma claim in excess of £600,000.

The claim alleged that the mesothelioma causing the death of the Claimant's partner resulted from asbestos within insulation handled during his employment.

Our success demonstrates the importance of rigorously assessing the allegations made and obtaining relevant expert evidence in support of a defence of the claim.

Background

The Claimant alleged that her partner ("the Deceased") had died from mesothelioma resulting from exposure to asbestos. The Deceased had allegedly been working in close proximity to insulation/lagging throughout his work with our client ("the Defendant").

The Claimant also alleged that the Deceased had been exposed to asbestos whilst replacing fuse wire in blown fuses.

Due to the Deceased's relatively young age, this was a valuable claim and the Claimant was seeking damages of up to £650,000.

Liability

Liability was denied.

There were considerable doubts at the outset of the claim as to whether the insulation actually contained asbestos. There was no evidence presented that the Deceased had believed that it did.

At an early stage and ahead of the Show Cause hearing we instructed an expert to examine whether the insulation was likely to contain asbestos. The expert noted the description of polystyrene type insulation and the industry requirement to have moisture resistant insulation on pipes conveying cryogenic liquids. The expert concluded that the pipes would have been composed of polystyrene, or similar polymeric materials, with no foreseeable requirement for them to contain asbestos fibre.

Furthermore, the expert concluded that any exposure from asbestos in blown fuses would have been below 0.0025 fibres/ml and therefore would be considered de minimis.

Outcome

On the day of the show cause hearing, the Claimant accepted that the insured had shown cause in writing. Following this, the Claimant's solicitors put forward a drop hands offer of settlement. This offer was rejected. We were aware that the Claimant had the benefit of an ATE policy.

The expert evidence was firm that that the Deceased's mesothelioma could not have been due to him being exposed to asbestos through his work with the Defendant. We were of the view that the Claimant had no justification in issuing proceedings against the Defendant in the first instance.

We maintained a robust stance throughout and argued that the Claimant's solicitors elected to pursue the claim on the basis that the lagging might have contained asbestos. The Deceased had not stated it did and an expert could have been instructed to confirm this allegation. Moreover, without the allegation as to asbestos in the insulation, this was likely to be a de minimis case at most. The Deceased had also provided a more credible history of exposure with another historic employer.

The Claimant's solicitors formally discontinued the claim against our client, thus agreeing to reimburse our defence costs.

What can we learn?

  • Ordinarily, a drop hands offer would have been an attractive offer to conclude a claim of this value.However, the expert evidence was unequivocal that the claim had no prospect of success, and should not have been pursued. Any reasonable investigation by the Claimant into the prospects of the claim would have reached this conclusion. The Claimant has the benefit of funding. Therefore, we considered that we were justified in pursuing a recovery of the costs incurred by our client in defending the claim.
  • The outcome of this case clearly shows that thorough investigation of the factual matrix and investing in early expert evidence can pay off and should be considered when there are doubts as to the strength of the claimant's case on exposure.
  • It is not uncommon for claimant solicitors to take a scatter gun approach in pursuing multiple defendants in mesothelioma cases notwithstanding joint and several liability. By taking a robust approach claimant solicitors may well start to take a more forensic approach when considering the merits of claiming against multiple possible exposers knowing that they could face a costly costs bill where meritless claims are pursued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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