DEFENDANT EMPLOYER FOUND LIABLE AFTER 8 HOURS EXPOSURE TO ASBESTOS 38 YEARS AGO
Maggs -v- Anstey [2007] ewhc 515 (QB)
A Claimant widow was awarded £230,000 gross after a full trial of the liability issue before Mr Justice Roderick Evans at the Royal Courts of Justice in London in February 2007.
The Defendant was refused permission to appeal by the trial judge and by the Court of Appeal. Humphreys & Co acted for the Claimant with counsel Allan Gore QC and Richard Viney.
The facts
Mr Maggs was employed as a lorry driver by Mr Anstey in the period 1966 to 1972. He died of mesothelioma aged 69 on 21st October 2005 and it was claimed that his mesothelioma was caused by exposure to asbestos dust in his employment with Mr Anstey.
Mr Maggs recalled that he had been required to collect a one-off lorry load of raw asbestos in bags from Avonmouth Docks, Bristol and then a short time later he drove the load to the Universal Asbestos Manufacturing Company (UAM) in Tolpits Lane, Watford where he helped unload. This was his only exposure to asbestos dust. He could not remember the exact date.
Medical evidence from Dr R M Rudd confirmed that a low level of exposure to asbestos dust can cause mesothelioma and the kind of exposure described by Mr Maggs involving high airborne asbestos dust levels which, although very brief, probably materially increased the risk that he would develop mesothelioma.
Mr Maggs gave evidence on commission at his home which was recorded on DVD some 14 days before he died. That evidence was shown at the trial of the liability issues.
The Defendant contested the case vigorously at every level and advanced arguments that:
– the Defendant’s work diaries and rate books which had been located for years 1966, 1967, 1970, 1971 and 1972 showed no record of any such delivery;
– asbestos cargo was not imported into Avonmouth Docks after 1970 (later retracted);
– Mr Maggs was confused and that he had in fact collected copper ingots from Avonmouth Docks in 1967;
– Mr Maggs’ own account was inconsistent as he had initially told the doctors who took his medical history that the had not been exposed to asbestos;
Mr Justice Roderick Evans found that:
– Mr Maggs was an honest and straightforward witness;
– his evidence on DVD was convincing;
– the inaccuracies in his evidence did not detract from his credibility and that it was not surprising that his recollection was not entirely accurate after so long a period;
– the circumstances in which Mr Maggs came to recall the load of asbestos added to rather than detracted from his credibility given the nature of the loads he usually carried. His initial denials of exposure to asbestos was understandable and when he was actually diagnosed with mesothelioma, and before lawyers became involved, he did remember the incident of exposure which was recorded in his medical notes;
– the Defendant’s diaries and rate books could not be considered a complete account of Mr Maggs’ work nor did they exclude, on the balance of probabilities, that the opportunity existed during Mr Maggs’ employment for the exposure to have occurred as described.
Some months before trial the Claimant offered to accept settlement on the basis of 60% liability under the Part 36 procedure. The Defendant refused. Accordingly after the successful trial the Defendant was ordered to pay costs and disbursements on the indemnity basis from 16th December 2006 onwards and to pay enhanced interest on the Claimant’s costs and disbursements.
