Posted by Rachel James, Senior Associate
Judgment at ‘show cause’ hearing for former trainee metallurgist with mesothelioma
We have recently secured judgment for Mr H following a complex and difficult “show cause” hearing in the High Court.
Mr H was employed by Babcock and Wilcox and Babcock Power Limited between 1980 and 1984, working as a trainee metallurgist in their Renfrew Research Plant. Mr H was exposed to asbestos by using asbestos blankets in the course of treatment testing on metal components, to test their reaction to extreme heat. He applied asbestos blanket over parts that were to be cooled slowly or kept cool during the heating process. The application of these blankets caused them to emanate dust and fibres. Overtime with repeated use, they became very tattered and frayed.
Mr H began to experience symptoms of mesothelioma in July 2016, being diagnosed in September 2016 when he was 53 years old. After leaving Babcock and Wilcox, he immigrated to Australia and set up a business in Perth delivering skips. Shortly prior to his diagnosis with malignant mesothelioma he was diagnosed with Korsakoff’s syndrome, which caused him to have significant problems with his short term memory. However, despite this he had a very good recollection of his employment at Babcock and Wilcox and was able to give a detailed witness statement. Despite initially agreeing to deal with Mr H’s claim, the defendants withdrew their admission after noting that Mr H had Korsakoff’s syndrome.
Rachel James, who handled the claim, commenced proceedings in the specialist asbestos division in the High Court to try and obtain judgment on liability. Shortly after service, the defendants raised questions alleging that Mr H would have come into contact with asbestos through his skip hire company, something that was noted in his medical records, and this would have been the cause of his mesothelioma. They also alleged that Mr H’s Korsakoff’s syndrome could cause him to confabulate i.e. create a version of events to fill in blanks in his memory. Mr H’s ex wife, who was a partner with him in the skip hire business, confirmed that while asbestos waste was collected, it was never removed from site. When it was collected, it was always double wrapped and sealed in plastic so that no dust or fibres could escape. The skip operator had no physical contact with the contents of the skip, other than to attach chains to the skip for it to be lifted onto a flat bed truck. Evidence was also taken from Mr H’s family to confirm that whilst Mr H did have gaps in his short term memory, there were no gaps in his long term memory. The witness evidence confirmed that Mr H did not confabulate; he would always admit if he did not remember something.
A witness appeal was carried out for witnesses who could provide evidence about asbestos exposure at the Babcock and Wilcox Renfrew Plant. Several witnesses came forward, including a fellow trainee metallurgist who worked alongside Mr H in the plant. The witness evidence obtained proved that Mr H’s description of the use of asbestos blankets was true and correct and that asbestos blanket material was in use as late as 1986. An engineering expert also provided a short report which confirmed that the description of the blanket material was consistent with asbestos and that the use of asbestos blankets in the way described by Mr H would have given off asbestos dust and fibres in excess of the levels that would have been deemed non negligent given the knowledge at the time.
At the hearing the Master found in Mr H’s favour and entered summary judgment on the basis that the defendant could not prove it had prospects of defending the claim. An interim payment of £50,000 was ordered in Mr H’s favour.
Rachel James said “I am very happy to be able to have secured judgment in Mr H’s case. The interim payment will allow him to put in place a care plan whilst his case is concluded”.
If you have been diagnosed with an asbestos related disease and require any further advice please do not hesitate to contact us.
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