Posted by Jennifer Seavor, Partner
Compensation recovered for Army serviceman for mesothelioma
In July 2016 our specialist asbestos disease solicitor, Jennifer Seavor, was instructed by Mr T who had been diagnosed with sarcomatoid mesothelioma in May 2016.
Jennifer attended Mr T at his home in Warwick and spoke to him in detail about his working life. She found out that he had served in the British Army between 1963 and 2002 and that his work had involved engineering, construction and building operations. Mr T could recall several times during his career when he was exposed to dust from asbestos containing materials.
Unfortunately, due to the provisions of the Crown Immunity Act 1947, no claim for damages can be brought by servicemen injured in the course of duty prior to 15 May 1987. On that date the Crown Proceedings (Armed Forces) Act 1987 modified the effect of the 1947 Act and from then onwards, has allowed such claims where a person was injured or developed a condition as a result of negligence or breach of statutory duty. Jennifer advised Mr T of the provisions and took a detailed statement of evidence from him. He was able to recall some instances when he was exposed to asbestos post May 1987.
Jennifer advised Mr T that he may qualify for a lump sum payment under the relatively new War Pension Scheme which was introduced in 2016. Under the scheme, if a veteran diagnosed with mesothelioma was exposed to asbestos in the course of his/her work prior to May 1987, a one off lump sum payment of £140,000 can be claimed. However, Jennifer also advised Mr T that if the claim could be proved relating to his post 1987 asbestos exposure then his legal claim through the civil court system was likely to be considerably more valuable. Mr T instructed Jennifer to attempt to pursue the legal claim in the first instance.
Between 1986 and 1989 Mr T was posted to Chilwell in Nottinghamshire but spent regular periods of time in Germany in connection with the development of emergency war plans. During his time in Germany he spent prolonged periods of time of up to 16 hours per day for 14 days at a time working in basement cellars of old barrack blocks. The services for the buildings ran through the cellars, suspended from the ceilings. The pipework was lagged with asbestos. Mr T informed Jennifer that the lagging was in poor condition; deteriorating and emanating asbestos dust. He could remember the cellars being very dusty environments and that movement through them caused the dust to rise.
Jennifer was able to trace 5 witnesses who had worked with Mr T during that time who were able to provide statements to corroborate his version of events and in particular the condition in the cellars and state of the asbestos lagging.
Unfortunately, the Ministry of Defence did not respond in a timely fashion to Mr T’s claim. They said that they were investigating the claim but did not provide any substantive response in respect of liability. To move matters forward Jennifer advised Mr T that it would be necessary to commence court proceedings by issuing a claim form in the specialist asbestos division at the High Court. Jennifer instructed a specialist barrister to consider the evidence and she felt that the claim was very difficult and was unwilling to act. Jennifer sought a second opinion and was able to find another specialist barrister who backed the claim meaning that court proceedings could be commenced.
Sadly, Mr T’s condition deteriorated and as such Jennifer advised him that he should also claim the £140,000 payment under the War Pension Scheme as the payment is only available during a person’s lifetime. Jennifer assisted him with the application and was able to consider the scheme guidelines in detail to ensure that payment under the scheme would not prejudice Mr T’s legal claim for compensation for his post 1987 exposure.
The legal claim continued and Jennifer requested an urgent hearing before one of the specialist asbestos Masters in the High Court who reviewed all of the evidence. He gave the Ministry of Defence a further 14 days to file a defence and provide some evidence that would convince him that they had a realistic prospect of defending the claim. The Ministry of Defence were unable to provide any such evidence and instead made Mr T an offer of settlement.
In the end his legal claim settled for just short of £400,000. Importantly, the claim was resolved during Mr T’s lifetime. Whilst Jennifer had advised him that his legal claim for compensation was in fact more valuable if settled on dependency basis in his wife’s name, after his lifetime, Mr T was adamant that he wanted certainty and resolution of the claim during his lifetime. Jennifer was able to achieve this for him.
This case shows the importance of exploring with former servicemen, whether or not they have in fact had any exposure to asbestos after May 1987 when Crown immunity was lifted. In Mr T’s case, his legal claim was considerably more valuable than the £140,000 lump sum payment under the War Pension Scheme for pre 1987 exposure.
If you are a former serviceman/servicewoman who has been diagnosed with an asbestos related disease and require any further advice please do not hesitate to contact us.
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