Whether claimant could pursue mesothelioma claim after having settled with other employers
Clyde & Co for defendants
The novel issue in this case was whether a claimant could bring a claim for mesothelioma against some of his former employers despite having settled an earlier claim which he had brought against certain other former employers for the risk of developing mesothelioma.
It is well-established that mesothelioma is not a divisible injury – it may be caused by a single fibre. Hence, if several employers expose a worker to asbestos, it cannot be proven which employer actually caused the condition – it can only be shown that an employer has increased the risk of mesothelioma. As a result, the worker can recover in full from any employer who has increased his risk of developing mesothelioma (leaving the employers to apportion liability between themselves).
In this case, the claimant had not originally claimed against three of his past employers because his solicitors did not know the correct name for one of them and were unable to identify the relevant insurers of the other two employers (now dissolved). However, after developing mesothelioma, he now sought to claim against those three employers.
The judge allowed the claim. He held that it was not an abuse of process for the claim to be brought. The claimant had not been fully compensated in the first action: “The Claimant elected to accept a sum for the risk of mesothelioma and in return decided not to seek an order permitting him to return to court in the event that mesothelioma actually developed. The settlement deliberately excluded any sum which would follow from the development of the condition. It cannot therefore be said that it included such a sum”. The judge held it made no difference that the claimant had chosen to abandon his provisional damages claim (which would have led to full compensation after mesothelioma developed), so that liability for mesothelioma would now have to be shared three ways, rather than amongst all the employers (with the three employers left to pursue a contribution claim (which had an uncertain chance of success) against those other employers.
Although the claim against the three employers was time- barred, the judge also decided to exercise his discretion under section 33 of the Limitation Act 1980 to allow the action to proceed. He said that the principal consideration was the fact that the claimant had a substantial claim for a very serious injury and had good prospects for establishing the defendants’ liability. The fact that the three employers might have had a chance to avoid paying for the development of mesothelioma, had they been given a chance to join in the original settlement, “really means that they have lost a chance of escaping without paying the claimant the damages to which he is otherwise presumed to be entitled”.