Asbestos Related Claims – Claimant not Precluded from Bringing Another Claim!

The case of Dowdall v William Kenyon & Sons Ltd(1), BECA (Engineers) Ltd(2) and Greenfield & Payne Ltd(3) (2014) recently raised a novel point for the High Court. Mr Dowdall had been exposed to asbestos by many employers. In June 1998, he was diagnosed as suffering from asbestosis and pleural plaques. An action was begun against seven of his former employers; it was settled in 2003 for £26,000. A claim for provisional damages, relating to the risk that he would later develop a serious disease or condition, was made but not pursued. Mr Dowdall had proceeded to contract mesothelioma.

Simply stated, the main issue for the Court to decide was whether the Claimant could maintain an action against three of the companies which employed him during a long career when he was exposed to asbestos by many employers, having already brought proceedings against 8 of the other employers.

The Court concluded that the principal consideration must be the fact that the Claimant had a substantial claim for a very serious injury and therefore it was appropriate to disapply the limitation period. It was stated that he had very good prospects of establishing that the Defendants contributed to the causation of the risk of that condition. Whilst accepting that witnesses will have died or become unavailable since 1998, the Court was unpersuaded that these witnesses would have afforded any viable defence to this claim.

The action was not an abuse of process, there was no evidence that the Claimant had manipulated the process of the court with the intention of “having his cake and eating it”. The decision not to sue the Defendants had been honestly made; it was made because in each case the Claimant and his solicitors had been unable to discover an insurer liable to meet the claim.

The High Court therefore permitted the Claimant to pursue a claim against the Defendants. It will be interesting to see if an appeal follows this controversial decision. In the meantime, it seems likely that where Defendants have settled mesothelioma related claims in the past in “full and final settlement” they may find themselves approached by Defendants in subsequent claims seeking a contribution. For further advice on this matter, please contact our specialist Occupational Disease Unit.

Sarah Wilkinson

About Sarah Wilkinson

Solicitor in the Insurance department
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