£35,000 payout after developing asbestosis
Mr G wins £35,000 payout after developing asbestosis. He began to suffer in May 2008 with breathlessness, pain and disturbance of sleep. He is not able to walk very far without gasping for air and had to give up his job as a Bus Driver.
Mr G was exposed to asbestos whilst working as a Pipe Fitter’s Mate at Woods Maintenance/J R Woods Engineering Limited, a contractor heating engineer firm from 1968 to 1970. He completed work at Guys Hospital at London Bridge, New Cross General Hospital at New Cross, St James Hospital in Baltham, Queen Elizabeth Women’s Hospital Tooting and Caterham Metal Hospital, Surrey.
This case was far from straight forward and involved numerous legal issues that had to be resolved. The first being that the company had gone out of business many years earlier. We solicitors used their specialist tracing procedures to discover the identity of the insurance company that provided employer liability insurance to the company and who would therefore be liable to pay Mr G’s compensation. Once the insurance company was found the claim was presented to them.
Another issue that arose was the company Mr G worked for had been struck of the Register of Companies and dissolved. In order to sue this company it was necessary to make a court application for it to be restored to the register and in effect become a legal entity again.
Asbestosis is a type of lung fibrosis that is caused by asbestosis, however lung fibrosis can have other causes so it was necessary to prove that Mr G’s fibrosis was asbestos related. This was done by the medical experts considering x-rays and ct scans that he underwent and the history of his exposure to asbestos dust. In order to prove he had been exposed to high levels of asbestos dust evidence from an expert engineer was required. The engineer was able to estimate the levels of asbestos dust Mr G would have been exposed to completing the different tasks he was set. This evidence was supportive of Mr G’s case.
The company Mr G worked form breached of statutory duty is the breach under Regulation 20 of the Construction (General Provisions) Regulation 1961. Regulation 20 reads as follows:
“Inhalation of dust and fumes to be prevented – where in connection with any grinding, cleaning, spraying or manipulation of any material there is given off any dust or fume of such a character and to such extent as to be likely to be injurious to the health of persons employed, all reasonably practicable measures should be take either by securing adequate ventilation or by the provision and use of suitable respirators or otherwise, to prevent inhalation of such dust and fume.
The provisions of Section 63 of the Factories Act 1961 would be also be applicable to this case. Section 63 has two distinct branches, each of which states a condition upon which the duty arises to take all practicable measures to protect the employee. See Richard –v- Highway Iron Founders (West Bromwich Limited)  3 All ER 205
The first condition is
“There is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the person employed.”
These words were interpreted per McNair J in Ebbs –v- James Whitson & Co Limited , 2 QB 887 as likely to be injurious according to the estimation of a reasonably well-informed factory occupier of which the actual occupier knew or ought to have known to be likely to be injurious
The court agreed with the above approach in Carmichael –v- Coburn & Co SC487 holding that the words in question must be interpreted with reference to the occupier’s state of knowledge at the material time.
It was shown from the evidence that Mr G was significantly exposed to asbestos whilst working for the Defendant company and therefore able to show they had breached their statutory duty.
A further issue we needed to resolve was limitation. Limitation is a legal rule that states that you must bring a personal injury claim within 3 years of when you knew or ought to have known that the injury you have suffered was caused by the Defendants. Mr G was informed of his diagnosis of asbestosis in May 2008 however he did undergo an earlier x-ray that showed pleural plaques, which is another asbestos related disease. It was shown that pleural plaques are not a significant injury for limitation purposes therefore this earlier x-ray could be disregarded.
In asbestos claims the illness comes on many years after the exposure to dust started, therefore the date of knowledge for limitation purposes is of great importance. Section 11 of the Limitation Act provides that an action in negligence claiming damages for personal injuries must be brought within three years of the date on which the Claimant’s cause of action accrued or of the Claimant’s date of knowledge, if later. Section 14 defines ‘date of knowledge’ as the date on which he first had knowledge that the injury in question was significant, attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty and the identity of the Defendant. We solicitors were successful in arguing that this should run from when Mr G was told of his diagnosis of asbestosis.