The Executors of RH (deceased) v. LPH Equipment, Successors to YJLovell

The Claimant served in the Royal Navy as a mechanical engineer. During his service, he had been subject to exposure to asbestos during refit and routine maintenance/repair work. However the Claimant’s service occurred prior to the repeal of the Crown Proceedings Act in 1987 so that whilst the exposure was negligent, civil redress against the Crown was not possible for that period.

After leaving the Navy, the Claimant was employed by the Defendant as a maintenance fitter dealing with the service and repair of plant and machinery.  During those years it was alleged that he was  again negligently exposed to asbestos which, though not as intense as the exposure received before was sufficient to cause mesothelioma. Skinners were instructed to pursue a claim against the civilian employer, and argued various case authorities including Bryce v. Swan Hunter and Fairchild v. Glenhaven Funeral Services.

There were a number of difficulties to overcome.  The employer had ceased trading following a  succession of buyouts and mergers, with no clear responsibility attaching to any successor company or insurer.  This issue  and other arguments were ultimately overcome, the Defendant eventually accepting that it owed a duty of care, albeit disputing liability on a number of alternative grounds:

  • The most probable cause of the mesothelioma was the exposure received during the time served in the Navy;
  • Based on a number of epidemiological studies, the amount of “toxic” asbestos dust likely to have been released whilst servicing brake and clutch linings would have been very low and insufficient to cause the cancer in question;
  • Whilst accepting that many brake and clutch linings contained chrysolite asbestos, this was converted to non-toxic forsterite on heating.

Proceedings were issued.  At the first hearing, the Judge found for the Claimant, ordering in effect that due to the recognised link between asbestos exposure and mesothelioma, the Defendant had failed to “show cause” and that the case should proceed on the basis that liability was established and the only issue to be determined was the amount of damages to be paid.  Unfortunately, this decision was successfully appealed by the Defendant on the basis amongst other things, that this case was different to many, due to the low levels of asbestos dust present post-heating and conversion to forsterite and that as a result, any exposure received would have been insufficient to amount to a breach of duty.

Post-appeal, the Court gave Directions for the case to proceed, with all issues to be determined at trial – breach of duty, causation and quantum.

Further expert reports were ordered.  Given the complexity of the case and the technical nature of the issues to be determined, Skinners instructed Theo Huckle QC and Kenneth Taylor of Taylor Associates, Consulting Engineers, both of whom instructed regularly by Skinners.  On further investigation, the following arguments were put forward for the Claimant:

  • The epidemiological studies undertaken in the USA and relied on heavily by the Defendant, were funded by motor manufacturers with a large financial stake in asbestos litigation;
  • A more balanced assessment of the studies undertaken worldwide suggested that whilst on heating, much of the asbestos content found in brake and clutch linings is converted to forsterite, there is nonetheless a residue of toxic material left – in this case likely to have been sufficient to amount to a breach of duty and to have caused the condition in question;
  • Although the forsterite arguments have some relevance to exposure received on replacement of brake and clutch linings, it had no relevance whatever to the exposure received when new linings are chamfered on fitting;
  • Mesothelioma can, in any event, be caused by very limited exposure to asbestos, and in this case the calculations undertaken were sufficient to exceed the Helsinki requirement;

The defendant was ultimately forced to concede liability and substantial damages were recovered for the estate of the deceased for pain and suffering / loss of amenity, bereavement, gratuitous care and  lost financial dependency for his children.

Skills

Posted on

5th September 2017

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