13 May 2021
Clyde & Co has successfully defended a claim containing novel allegations that the claimant’s pleural thickening had been caused by asbestos exposure linked to the nature of a family member’s employment.
The claim provided an interesting comparison into 'bystander' or secondary asbestos exposure cases, previously considered in mesothelioma cases such as Maguire v Harland & Wolff PLC and Carey v Vauxhall Motors, which both considered the indivisible injury of mesothelioma, as opposed to a divisible injury such as pleural thickening.
In our successful claim, the claimant had alleged that due to bystander exposure to asbestos from her late stepfather’s overalls she had developed pleural thickening. At an early stage we set out the hurdles faced by the claimant and the strengths of our case. Our response clearly planted seeds of doubt in the claimant’s mind as to whether they had a realistic case against our client, leading to the withdrawal of the claim before proceedings were served.
Background
The claimant initially alleged that her pleural thickening was caused from exposure to asbestos when her stepfather brought home his overalls which were allegedly covered in asbestos at the end of each day after working at the defendant’s premises.
The claimant alleged exposure for the entirety of her (late) stepfather's employment from 1974 to 1976, who had died from mesothelioma and had brought a successful claim against our client as defendant.
However, the claimant’s draft witness statement was voluntarily disclosed and provided insight into the changing basis of the claim. Her statement focused on exposure sustained during her own employment manufacturing fuse boxes making no reference to the alleged bystander exposure.
After cross-referencing her stepfather’s dates of employment with her witness statement it appeared that the claimant was then an adult, had already moved out of the parental household, was in full-time employment and had moved in with her sister during the alleged bystander exposure period. Her allegations were not credible especially where there was a clear alternative for much greater exposure during her own employment.
Outcome
The claimant was faced with a number of issues:
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Her allegations had changed drastically in her witness statement as opposed to what was repeatedly discussed with her doctors.
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Causation in relation to our client was not proven.
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We submitted that she had a much more credible case against her direct employer where she manufactured fuse boxes.
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Any exposure due to the defendant would have been extremely low even if she could prove exposure and get over the hurdle of de minimis.
The claimant, seemingly recognising the weakness in this bystander claim duly discontinued following issue of the claim but prior to formal service on the parties.
With the successful outcome the potential savings would have been significant especially since the defendant company would have been liable as no PL cover had been identified.
What can we learn?
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This was a claim where, at the outset, the claimant’s allegations were highly unusual since she attempted to bring a bystander claim seemingly due to the success of her late stepfather’s claim against his former employer rather than against her own previous employer where there had been exposure. The claim was quite novel as it was alleged that she developed pleural thickening from, at best, low level bystander exposure rather than direct exposure.
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By requesting disclosure in the form of witness evidence and medical records at an early stage of the claim we were able to cross-reference her allegations and statements made to her medical practitioner. It became obvious that the claimant had changed her allegations presumably to try and improve her chances of success against her late stepfather’s previous employer when, in fact, the claimant had a much more viable claim against her former employer.
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This outcome is healthy reminder of the importance of carefully reviewing the background and information to establish the facts of the case. In this case it became quite clear that the claimant’s claim against the defendant was misconceived and her allegations were misplaced as it became clear that it should have been solely redirected to her previous employer.
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This case demonstrates that even where there are historic allegations and no evidence is available due to the passage of time, it is still possible to develop a successful defence with careful consideration of records and by taking a robust approach with the claimant’s advisor.
For further information, please contact:
Judith Martin, Partner, Clyde & Co
judith.martin@clydeco.com
