Posted by Helen Childs, Partner
Mesothelioma claim settles for £670K just days before trial
K was only 59 when he was diagnosed with mesothelioma in October 2016. A plumber by trade, he had come into contact with asbestos as a youngster, in the 1970’s and 80’s. The firms he served his apprenticeship with and worked for afterwards undertook domestic work as well as commercial contracts, including at several schools in the Reading area, where much asbestos was used, particularly in the boilerhouses and heating systems.
When he was diagnosed, K was still working full time, in a job that he loved, and was a very hands on grandfather, as well as carrying out most of the household work, including much of the cooking, shopping and laundry, as well as maintaining the family home and garden, and also helping other family members maintain their properties. He was a skilled handyman to tradesman standards, and had helped his son renovate his first house over the course of several months. K’s wife also worked full time, in a senior position, earning considerably more than her husband.
K was keen to have immunotherapy treatment and was able to access this through his wife’s healthcare cover.
When an individual has mesothelioma the compensation payable is assessed differently if they pursue their claim personally rather than the claim that can be made after their death on behalf of their estate. Typically the claim for the estate is more valuable, but because a large proportion of the surviving spouse’s income is deducted from the future settlement, it looked as if K’s claim was an exception to this general rule. Efforts were made to persuade the defendants to enter into settlement discussions but they would not engage.
Court proceedings were commenced within 4 months and judgment was entered by the court at the first review hearing. As it looked like the claim was more valuable if settled personally by K, a very tight timetable was put into place to assess the damages payable within just a few months. However, K’s wife was then told her pre existing eyesight difficulties meant she could not see well enough to drive, and ophthalmic evidence suggested the prognosis was uncertain and that she needed an operation. In the meantime, she reduced her hours at work in an effort to spend more time with her husband as well as enable her to continue to cope at work notwithstanding her eyesight problems. Care evidence was also received which demonstrated that K’s input into the household was so considerable that this, together with K’s reduced income, meant that the claim on behalf of the estate was likely to be more valuable. The defendants care report suggested that in retirement K’s wife’s contribution to the household would have “become more equal” – despite the uncertainty surrounding her eyesight problems!
We applied to court to delay the trial to allow the evidence to be finalised.
Sadly, and inevitably, K’s condition deteriorated and he passed away in the autumn of 2018. Poignantly, he never got to know that his recently married son would become a father in the spring of 2019.
Once the evidence was clearer, we made a formal offer to the defendants to settle the claim for £600000, but they did not respond. It became apparent that even though the claim had been ongoing for almost 3 years the 2 previous employers were still arguing between then what proportion of the claim they were each responsible for. This was also the reason they had not engaged with our attempts to hold settlement discussions during K’s lifetime.
The only remaining step in the proceedings was for the care experts to serve an updated report, and the defendants served updated evidence from their expert that confirmed not only was the suggestion the input into the household would have become more equal not going to be pursued, but she felt the hourly rate that K’s input should be assessed at was actually 15% higher than suggested previously.
This made a considerable difference to the likely award, so we withdrew our earlier offer and made an increased offer of £670K. Formal offers like this can be a powerful tool because the Judge at the trial isn’t told about any previous offers, but if the claimant goes on to beat their offer because the judge awards them more they can seek an additional payment of 10% on top of the amount they are awarded. As a result a slightly discounted offer was made to increase our chances of being awarded more if the case went to trial.
The time for accepting the offer came and went and it very much looked as if the trial to assess the compensation payable would need to go ahead. However, just a week before trial the defendants offered £500000, which was insufficient, and with just a couple of days to go to trial, the defendants accepted the claimant’s own offer. Although she was willing to go to court Mrs K would have preferred not to, not least because the trial timetable coincided almost exactly with what would have been K’s 60th birthday.
The settlement included recovery of the private healthcare costs and the voluntary care provided by the hospice. It also gives the family financial security, which was always K’s motivation in bringing the claim.