Posted by Helen Childs, Partner
Fatal mesothelioma claim settles for £298,000 just one week before the Assessment of Damages hearing.
Helen Childs, Head of our specialist Industrial Disease claims team, details a recent successful case involving a claim for mesothelioma.
Mr D was born in 1951 and was aged 67 when he first developed the symptoms of mesothelioma, which was formally diagnosed early in 2019. Mr D had worked as a lagger for various companies including J S Miller & Co., Cape and Darchem. He had mixed up and applied Magi to pipework and vessels within various industrial locations. His evidence was that at some point in the 1970s the use of new asbestos insulation began to cease but that old asbestos insulation was still being removed.
Our client’s history and the start of his claim
Mr D worked for various companies over the years, but his apprenticeship and much of his early years were spent working for J S Miller, who he continued to work for until the 1980s. Their insurance history was complicated as they had been insured with Chester Street until 1970, then Aviva/Pro Global until 1978, and then Canopius thereafter. Only Chester Street were revealed by the Employers’ Liability Tracing Office (ELTO) initially, and when the proceedings were commenced against Millers only they engaged with the claim in principle. They refused to engage with the proceedings until Millers had been restored to the company register.
Mr D was very keen to attempt to conclude the claim within his lifetime, and was deteriorating fast, so a separate set of proceedings was commenced against Cape/Darchem and the other companies for whom he had worked subsequently.
An offer in settlement was made of £300,000 at the same time as the issue of proceedings against Millers.
A reduced offer in settlement of £269,960 was then made in early June 2019 with a warning to the Defendants that Mr D was deteriorating and if this matter proceeded as a fatal claim, the damages would be higher.
Sadly, Mr D deteriorated and died in late June 2019.
Mr D had been working when he became unwell, and his evidence was he had intended to continue working until age 70. His wife was not working and was dependent on his income and services. It was a second marriage for both Mr and Mrs D and Mrs D’s son, Darrell, from her first marriage treated Mr D like a father and Mr D, by all accounts, doted on Darrell’s daughter with whom the couple spent most weekends.
Mr D suffered terribly in the weeks leading up to his death. He had peritoneal mesothelioma which is commonly accepted as being more painful and debilitating than pleural mesothelioma. He lost considerable amounts of weight, was constantly vomiting and in agonising pain and incredibly debilitated. He was cared for by his wife at home in the lead up to his death.
Proceeding with the claim following our client’s death
On Mr D’s death, Mrs D took over the claim as his Executor. The claim was pursued on her own behalf and on behalf of her granddaughter, who was dependent on Mr D for services like childcare and help with homework etc.
Medical evidence into Mrs D’s own state of health was obtained with one expert indicating that her life expectancy was as little as eight years and the claimant’s expert confirming that it was 14.
Despite there having been a biopsy in life, and the coroner not requiring a post-mortem, the defendants insisted upon one which caused Mrs D considerable distress. In the meantime, the defendants in the second action disclosed evidence to indicate that protective measures were taken by Cape Darchem, something which it was too late for Mr D to comment upon, of course.
The co-restoration proceedings against Millers were continuing, but the defendants refused to take any action in that claim until Millers had been restored to the register – even though restoration proceedings are a formality. The restoration was completed in the autumn of 2019. The defendants then entered a defence disputing liability and the court fixed a hearing in February 2020 to assess whether or not they had any realistic prospect of defending the claim and to put in place a timetable for trial.
In the meantime, the proceedings against the other defendants were discontinued.
It became apparent that there was an issue with the insurance for Millers as Canopius refused to engage within the proceedings or contribute towards them. It was not clear that there were any insurers for the middle period at this stage. However, on Mr D’s own evidence, there was exposure beyond the start date of his employment with Millers once they were insured with Canopius. The relevance of this is that if there was no exposure during the time when there were insurers for a subsequent period, after Chester Street’s cover ceased in 1970, then the liability would be met by the FSCS (Financial Services Compensation Scheme) which only pays at 90% for pre 1972 exposure.
A claim was advanced on the basis that Mr and Mrs D – who had recently moved to a bungalow before Mr D became unwell – would have moved one final time which would have necessitated Mr D working a little longer to fund the additional move. A claim was also made for the considerable loss of services as the property they had purchased needed considerable renovation, something which had not been obvious to them at the time when they bought it.
Challenges to the settlement
The claim was, therefore, put forward on the basis that Mr D would have continued working until at least 72 / 73 and that Mrs D’s life expectancy was 14, not eight years. There was a considerable loss of services claim and that they would have moved house one more time. The claimant made a formal offer in settlement of £310,000 net to test the waters at around Christmas but this was not accepted. This would have equated to an overall settlement of £334,000.
The defendants put forward a counter schedule disputing almost everything except bereavement damages – and a timetable was put in place for the matter to proceed to trial in May 2020.
The Covid pandemic then began to impact the country, and Mrs D had to self-isolate as a result of her age. Mr D would still have been below 70 if he had not developed mesothelioma. Mrs D did not drive, and her life was incredibly restricted during the lockdown period. She was entirely reliant on her son (who was working full time and who lived several miles away) for support.
The initial Assessment of Damages date had to be adjourned because our own medical expert was a respiratory physician on the NHS frontline and could not take any time away from work whilst the infection rate was so acute in his local NHS Trust. It was re-listed for October.
In the meantime, the defendants made an initial offer in settlement of £230,000. They incrementally increased this by £10,000 several times, necessitating frequent conferences with Counsel and with Mrs D to take her instructions on each increased offer. The claimant made an offer in settlement of £310,000 gross in the summer of 2020. This was rejected by the defendants.
The claimant made considerable efforts to get the defendants to engage in a settlement meeting but they refused.
The claimant then made a fighting offer in settlement of £298,000 and made it clear to the defendants that this was not a negotiating stance.
The defendants continued to make incremental offers in settlement with an offer of £285,000 being made in September 2020. A further conference with the client was held and the life expectancy was discussed with the medical expert. The offer of £285,000 was rejected and was met with an increased offer of £292,000 just over one week before the Assessment of Damages Hearing. During the subsequent week, instructing solicitors had planned a face to face conference with the client in the north of England, a further conference with the medical expert and an attendance with the client for the court hearing which had been listed to take place virtually. The difference between the parties was just £6,000. In addition, the claimant was perfectly within her rights, if she wished to accept the offer of £292,000, to do so at 4pm on the Friday before the trial was due to take place the following Monday, and the defendants would have had no option but to pay the claimant’s legal fees for all of these additional steps in the preparation of the matter for trial.
Not for the first time, the claimant indicated that the offer of £298,000 was a fighting offer and one that was intended to be something that they would beat at trial. The importance of a well judged Part 36 offer is that if you do go on as a claimant to beat your own offer, you not only recover whatever you are awarded, but an additional 10% on top as an additional payment to effectively penalise the defendants for refusing to accept a reasonable settlement sooner.
By now, the offer that was being made was equivalent to the first offer in settlement that had been made in April 2019 (as at that stage, fewer benefits were deductible) and in excess of the offer that was made in June 2019. The claimant’s conservative assessment of the value of the claim had consistently been £300,000 to £320,000. Notwithstanding this, the defendants said on several occasions that the claimant had “overvalued the claim throughout” which is why a settlement had not been achieved.
Once the matter was concluded, a Consent Order was drawn up to reflect the agreement between the parties, which the defendants refused to sign until a comma had been inserted into one of the figures for a payment on account!
The defendants had also continued to make offers in settlement on a 90/10 basis into September 2020, notwithstanding that insurers for the intervening period had been identified and as long ago as July 2020 had confirmed their interest and that they would be contributing to the settlement, whilst at the same time asking Mrs D to give credit for £5,000 more of interim payment than she had actually received.
Mrs D was very pleased with the settlement, which enabled her to begin to move on from the tragic loss of her husband. The Assessment of Damages Hearing had been listed to take place on what would have been their 29th wedding anniversary. Part of the settlement was set aside and invested for Mrs D’s granddaughter, with whom Mr D had been so very close before his illness.
If you have any questions for our specialist mesothelioma claims team, please contact them today.
0800 051 8056 Email us