Tuesday 23 March 2010

Action on the legal front

Wearing my work hat, I am used to being addressed by members of the legal profession as they present the case for their client.  Talking to a solicitor who is acting on your own behalf is a different cup of tea altogether!  

We went into yesterday's meeting with the solicitor feeling that it was probably a waste of time, but came out feeling rather more positive. However, we aren't counting the proverbial chickens yet.  There are four hurdles to clear for a successful claim for damages:

There has to be medical proof that Steve is suffering from an asbestos-related condition.  Although we have a written diagnosis of mesothelioma from the hospital, this will be verified by a disinterested third party who is an expert in the field. Steve will get an appointment to see Professor Robin Rudd at the Royal Brompton Hospital in London, who will have all the tests results at his disposal. It will also be an opportunity to find out more about other treatment options available in the UK and abroad, something we had wanted to discuss in detail at Steve's last assessment but didn't really get very far with. Sadly, there should be no problem clearing this hurdle.

We have to show that Steve's condition was caused by exposure to asbestos fibres.  There being no other known cause for mesothelioma, this should not be an insurmountable barrier.

We have to show that one of Steve's previous employers was negligent in exposing him to asbestos; in other words, they failed in their duty of care. This is the biggest hurdle. We spent a long time going back through Steve's employment history and, to cut a long story short, the solicitor takes the view that the most likely exposure to asbestos was in December 1971, when Steve was one of a number of architectural students involved in the demolition of partitions at what was then Oxford Polytechnic - now Oxford Brookes Uni - to create one large open plan studio on the top floor of the building housing the Schools of Architecture and Town Planning.  

My research had shown that the building in question has been designed and built in the mid-1950s, a time when asbestos was widely used in the construction of educational buildings because of its fire-retardant benefits. Frustratingly, although the materials used in the partitions between studios are specified on the Building Regs drawing, there is no such specification for the partitions separating the studios from the central spine corridor, which were also demolished to open up the space. I thought that would be the end of the story.  

However, the solicitor has engaged a specialist consultant on the use of asbestos.  He advises that as the central corridor would have been the protected escape route in the event of fire, it's highly likely that the partitions would have contained asbestos.  This view is reinforced by the Building Regs file note attached to the drawings which highlights issues about unsatisfactory means of escape, and unsatisfactory fire resistance generally, suggesting that more fire retarding measures would have been incorporated into the finished structure than shown on the drawing.  This evidence, together with an extract from the floor plan which makes it possible to calculate the length of partitions demolished will be sent to the consultant to confirm his view about the use of asbestos.  

The test in a civil case like this is the "balance of probability," rather than "beyond reasonable doubt" as in a criminal case. Unless the expert witness changes his mind when he sees the copy of the file note and plan extract, the solicitor feels confident that we can show that some of the partitions which Steve removed contained asbestos which was released into the air when demolished.  

The expert's evidence, plan extract and copy of the file note is supported by prints from a couple of old slides which shows Steve actually doing the work, lump hammer in hand, and another student standing by a heap of timber, which would have been from breaking up the partition frames. A friend who was part of the demolition gang will confirm that Steve was there. He also recalls pulling down panels (which may well have contained asbestos) from the suspended ceiling in the old corridor.  Another friend recalls that it was a paid job, probably cash in hand, although he didn't take up the offer.  I bet he's glad he didn't!

Witness statements and the photos will confirm that there was no protection of any sort to prevent asbestos fibres being breathed in, or toes being crushed, or things falling on heads - it's a wonder they emerged (mainly) unscathed, thinking about it, and indeed that the whole building didn't collapse given the rather haphazard way the work was carried out, from the accounts I've heard!

So we have the likely cause of exposure to asbestos over the week the demolition work was carried out, and the lack of protection to prevent asbestos particles being breathed in.  Unless the expert witness changes his mind, it looks like there is a very good chance of clearing the negligence hurdle.

At the time the partitions were demolished in late 1971, the harmful effects of exposure to asbestos leading to asbestosis were well documented, even if awareness of mesothelioma was less well known.  Councils were regularly sent health and safety advice which would have alerted them to the risk. The "employer" should have therefore foreseen the dangers of working with asbestos and prevented Steve, and the others involved, being exposed. The last hurdle of foreseeability should not be difficult to clear.

So what happens next?  

Steve will be sent a revised witness statement to sign.  The solicitor will contact our friend to ask him to confirm in writing what he has discussed with Steve over the phone. All the information will be sent to the expert witness for his formal evaluation and statment.  Steve will get an appointment at the Royal Brompton to see Prof Rudd.  All the documentation will be sent to the "employer" with a deadline to respond and, assuming there is no response or the claim is denied (which appears to be par for the course), papers will be lodged at the Royal Courts of Justice where the sitting judge is very experienced in dealing with mesothelioma claims.  If we get to that stage, the chances are that there will be an out of court settlement at the last minute.  

Damages are assessed on the basis of pain, suffering and loss of amenity (at least I think that was the phrase) and loss of potential income.  Given Steve's current condition and the fact that I am the major breadwinner in the household, we would not expect to receive a huge amount in damages if the claim is successful, but probably more than Steve received under the Government scheme (which would be paid back - you don't get both).

No amount of money could ever compensate for cutting short a life, what lies ahead for Steve, and the impact this disease has had on us, the wider family and close friends. However, it could be used to fund treatment outside the NHS and adapt the house to meet Steve's changing needs, so we will press on with the claim if the legal advice is to do so.  

Today's lesson in legalese is now over - time for food, I think!

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