Early Disclosure Leads to Discontinuance of Asbestos-Related Disease Claim: The Pitfalls of Reverse-Engineering Facts to Raise Prospects of Success

A fortnight ago, there were reports of a robustly defended case (unreported), involving an asbestos-related pleural thickening claim, where the alleged exposure was of a secondary, or ‘bystander’, nature.[i]

According to the claimant’s original pleadings in issued proceedings, the source of injurious asbestos exposure was her stepfather’s overalls, which were covered in the material at the end of each day of his employment (from 1974 to 1976) at the defendant’s premises.

Intriguingly, the stepfather (now deceased) had already successfully advanced a negligence claim against his employer (the defendant in the present claim) when he developed fatal mesothelioma.

The issue in the present case unravelled when the defendant requested disclosure of witness evidence and medical records.

Contrary to the pleadings and repeated discussions with her GP, the claimant’s voluntarily disclosed draft statement made no reference to secondary asbestos exposure, but instead to exposure sustained in the course of her own employment manufacturing fuse boxes.

It became clear, upon cross-referencing the alleged dates of secondary exposure with the claimant’s whereabouts, that her claim was not credible. At that time, she was an adult in full-time employment, who was no longer living in the parental household.

This created a ‘highly unusual’ and ‘novel’ claim, because, not only did it relate to a rare case of divisible pleural thickening stemming from bystander exposure (the only successful cases to date have been indivisible mesothelioma claims), but also from an ‘extremely low’ level of exposure.

The only reasonable explanation for not pursuing the seemingly more viable claim against her direct employer, with whom there had been far more substantial asbestos exposure, was that she had assumed that her prospects of success would improve if she were to share the accomplishments of a claim that had already been won – her late stepfather’s claim.

However, the reality for the claimant was that causation was unproven on the facts and questions over de minimis exposure were looming.

Seemingly recognising that her claim was ‘misconceived’, that her allegations were ‘misplaced’ and that her expectations were best described as ‘weak’, she discontinued her claim before proceedings were formally served.

In the absence of identifiable employers’ liability / public liability (EL/PL) insurance cover, the early withdrawal of this claim was an especially positive outcome. Had the defendant been held liable, the potential financial outlay could have been sizeable.

 

[i] Judith Martin, ‘Clyde & Co successfully defends novel secondary exposure pleural thickening claim’ (11 May 2021 Lexology) <https://www.lexology.com/library/detail.aspx?g=e4f69f01-77f3-4572-87af-6fed05962752> accessed 13 May 2021.