Significant damages secured for carpenter who worked with asbestos boards without protection.

Ian McDougall has lived and worked in Oxfordshire his whole life. He was a carpenter by trade and worked for W E Chivers & Sons, Kier Ltd and Amey Engineering throughout the 1960s and 70s. He had worked extensively with asbestos, including cutting up asbestos boards that were used in making fire doors. He had also spent time on site installing these doors and doing other work that brought him into direct contact with asbestos, including creating firebreak walls and renovation works. He was not provided with any protection from this dust, nor was he warned about it.

It was only decades after this work with asbestos that Ian was informed he has a thickening of the pleural fluid surrounding his lungs, which was restricting his ability to breathe properly. This pleural thickening is one of many illnesses that can be caused by exposure to asbestos.

Claims of this type are called ‘divisible’ claims, meaning any defendants will only be responsible for their apportioned share of the damage caused. This is called the  ‘material contribution’ test and the key case for this is Bonnington Castings Ltd v Wardlaw [1956]. This differs from ‘indivisible’ cases, where the severity of the injury does not or cannot increase with exposure (usually malignant cases such as cancer and mesothelioma).

This meant that, in this case, the pursued defendants were pursued for damages equal to their apportioned percentage share of the total time Ian was exposed to asbestos. There was an additional company Ian had worked for that was not pursued, which equated to 5% of his total time exposed. That meant that 5% of his damages could not be recoverable. An important case that sets this out is Holtby v Brigham Cowan [2000], and thus, rather fittingly, this period of non-recoverable damages is called a ‘Holtby Discount’.

In these divisible claims, where principle of material contribution applies, it is sometimes the case that claimants miss out on part of their damages where an employer is not pursued. This can be for various purposes, such as the employer is no longer trading, or their liability insurer cannot be found. It has therefore been an area of some controversy in Industrial Disease claims for many years and can often leave a claimant in a difficult position. Careful consideration therefore has to be done to obtain appropriate medical or engineering evidence to establish the extent of the contribution to the injury. In Ian’s case, we were able to successfully pursue W E Chivers & Sons, Kier Ltd and Amey Engineering even though two of these companies had been long closed down.

We issued court proceedings against the three companies and they neither admitted nor denied the claim but claimed that Ian’s claim was time-barred (see Limitation Act 1980, §11, §14) but that defence was not pursued and later dropped.

The defendants then put forward an offer to settle the claim and we made clear that Ian would only settle on a provisional basis rather than a full and final basis. What this means is that should Ian go onto develop a further illness as a result of exposure to asbestos, he will be able to return and sue again. Full and final settlements essentially ‘closes the door’ and a claimant cannot return, even if they were to develop a completely different illness. After a period of negotiation with the defendants, we were able to secure a significant sum for Ian and importantly on the basis that those damages are provisional.

I wish all the very best to Ian and his family, who were a pleasure to work with throughout his claim.