Thursday 16 September 2010

16 months since diagnosis......

It's 16 months today since Steve was diagnosed with mesothelioma and we are still thanking our lucky stars after hearing last Thursday that the cancer continues to remain stable. Even yesterday's meeting with the legal team hasn't taken the smiles off our faces, although it was a long and quite exhausting day..

Getting the papers ready for yesterday's meeting reminded me that it's been a long time since I first sought legal advice through my union about the likelihood of a claim for damages succeeding. Occasionally on the blog I have reported progress on this front. Perhaps now is a good time to recap on what's happened, update you on where we are (as of yesterday) and where we go from here. If nothing else, it will give those of you who find yourselves in similar circumstances an idea of what to expect, should you decide to go down this route....

Our first contact with the solicitor was in July 2009.  By the end of that month we had been visited at home by one of his colleagues who interviewed Steve about possible sources of exposure to asbestos.  Steve signed forms instructing the practice to represent him and to allow the release of medical records from the GP and hospital about his condition, and his employment history from the Inland Revenue.  

That was followed up in August by a request to sign a written statement prepared by the solicitor based on the interview and an explanation of the four "hurdles" we would need to clear to pursue a claim for damages (i.e. proof of Steve's mesothelioma condition; showing how that condition arose from exposure to asbestos; proof that whoever exposed Steve to asbestos had been negligent - failed in their duty of care - and that the risk of exposure ought to have been foreseen and measures taken).

Over the subsequent months, we did our best to recall detailed information about possible sources of exposure in response to the solicitor's questions and look for any material that could be used in evidence.  By October, we had tracked down a couple of dated slides of Steve demolishing partitions at Oxford Poly when he was a student, and obtained copies of the Building Regs plans for the building where the work was carried out. Asbestos products were commonly used in educational buildings of that era (mid-50s). The Building Control file notes stating that fire resistance and means of escape were not satisfactory increases the likelihood that asbestos products would have been used in construction of walls and ceilings of the corridor fire escape route, which Steve had subsequently helped demolish in the early 70s.

As a result of this preliminary assessment, the legal practice accepted the case in February 2010, with a formal letter of engagement for Steve to sign and all the associated paperwork provided. A consulting engineer was asked to assess the likelihood that asbestos would have been a constituent of the walls/ceilings knocked down at the Poly, and further questions were asked about other possible sources of exposure. 

We eventually met the solicitor face-to-face when he visited us at home in March to go through progress to date and explain what would happen next. Two "Letters of Claim" dated 26 March 21010 were served on Oxford Brookes University (the former Polytechnic) and Oxford City Council, the education authority at the time Steve's likely exposure to asbestos occurred. The solicitor subsequently entered into correspondence with the County Council, the current education authority.

In April, Steve signed a "Statement of Truth" which would be lodged with the Court and served on the Defendants.  He was examined by an independent medical consultant to confirm his mesothelioma diagnosis, and Dr Rudd's report was received shortly after. In his opinion, assuming the demolition work at the Poly involved asbestos, it is likely that this exposure would have materially increased the risk of Steve contracting mesothelioma. 

The consulting engineer's report was received in May.  Mr Glendennning concluded that the defendants should have been aware of the dangers of asbestos at the time Steve demolished the partitions; it is likely that the partitions contained asbestos; the defendants did not ensure that exposure to asbestos fibres was reduced as far as reasonably practical.  The report was disclosed to the defendants, who were given 14 days to admit liability, otherwise proceedings would be issued in Court.  

The Claim Form and Particulars of Claim were sent to Court in June 2010 to be issued in Sheffield under the mesothelioma claims process and will be dealt with by Judge Oldham, who is very experienced in dealing with such claims.  On 30 June 2010, proceedings were served directly on Oxford Brookes University (formerly Oxford Polytechnic) and Oxfordshire County Council (education authority).  

In early August, the solicitor advised that he had received the two defences, both seeking to shift responsibility on to the other for the responsibilities of the old Polytechnic. From the meeting yesterday, it is this complication which may delay the progress of the case, as legal arguments are made about who is responsible for Steve's "injury". 

The courts have held that the act of inhaling asbestos fibres is not the point at which the injury occurs, it is the point when the fibres trigger the abnormal growth of cells associated with malignant cancer. It seems that this is universally "agreed" as being at least 10 years before any symptoms occur. In Steve's case, the County Council is saying that his "injury" occurred in 1995, by which time the old Polytechnic had become an independent University and was no longer the responsibility of the education authority. We can only assume that Brookes is arguing that responsibility should rest with the education authority whose failure to exercise its duty of care in 1971 ultimately lead to Steve's condition.  

From our point of view, it makes no difference; both are "live' bodies with insurance to cover such eventualities. Our barrister thinks that the Judge may direct that the issue of liability be tried at an early stage. If it goes to trial, this will be at considerable expense to both defendants. The chances are they will reach an agreement out of court as to which will take responsibility, in the event that negligence is found.  

Which brings us to the other big issue - whether or not the walls and ceilings which Steve helped demolished contained asbestos. Although the materials themselves are long gone, there are a number of documents on the defendants' disclosure list which might shed some light on this matter, including an asbestos survey carried out in 2005 and various internal memos relating to asbestos in the Abercrombie Building, which is where the studios were located. If these indicate that asbestos was present in similar areas elsewhere in the building, it will obviously help our case. If not, well...a lot can happen in a building between 1971 and 2005, so it doesn't prove that asbestos wasn't present at the time Steve was involved in the demolition work.  

The relevant documents have been requested, so we won't have to wait long to find out. The fact that each party is trying to shift responsibility onto the other suggests that they are worried about something....

On all other fronts, the case seems to be open and shut - there is no doubt that Steve has mesothelioma and that this is caused by exposure to asbestos particles.  If the exposure is more than "de minimis", the full cost of damages can be recovered from one defendant, even if there was more than one source of exposure over a period of time, which is a possibility, albeit remote, in Steve's case. 

Since 1965, there has been a legal duty to reduce exposure to asbestos as far as reasonably practical. No measures of any sort were in place to reduce exposure when Steve was involved in this demolition job.  Consequently, whoever was responsible, be it the County Council or Brookes, they failed in their duty of care to Steve whether as an employee, a visitor to the building or a student in the building at the time asbestos dust was in the air. If an "injury" has resulted as a result of that duty of care being breached, then damages should be awarded.  

The barrister anticipates that if all goes to plan, this process is likely to culminate in a date for a trial being fixed for early in the New Year. However, the majority of cases which reach this stage end up being settled out-of-court to avoid the enormous costs of the trial itself. 

The next hurdle is looking at the documents disclosed by the defendants, in particular the 2005 asbestos survey.  Will that help Steve's case, or not?  We'll just have to wait and see.....

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