Asbestos Justice are pleased to report the decision reached in the case of Elaine Graeme and the estate of John Graeme –v- Smye – Rumsby Engineering Co Ltd, QBD which was effectively a “test case” about loss of financial dependency in what was a pursued mesothelioma claim.
Mr Graeme was employed as a Marine Engineer with the Defendant between approximately 1974 and 1977, during which time he suffered regular exposure to asbestos dust.
He instructed his specialist asbestos disease lawyers in March 2012 and Court proceedings were issued in April of that year.
The Defence from the Defendant, denied liability, citing Technical Data Notice 13. The thrust of the Defendant’s argument was that Mr Graeme’s exposure to asbestos was not significant enough to be held in breach of statutory duty.
Supportive medical evidence was obtained in support of the mesothelioma claim from the eminent, Dr R M Rudd, with the Defendant relying upon expert medical evidence from Dr Moore-Gillon. Both experts agreed that it was inevitable that Mr Graeme did suffer some exposure to asbestos when working as a Marine Engineer.
The Defendant’s solicitors, DWF, instructed Barrister Charles Feeny to defend the claim on their behalf. Mr Feeny has acted for the Defendants in a number of other mesothelioma claims where TDN 13 arguments have become a highly contentious issue, including the cases of Abraham, Sienkiewicz, Wilmore, Williams, McGregor and the most recent decision of McCarthy which involved Marks & Spencer.
Sadly, Mr Graeme passed away due to mesothelioma in June 2012 and further evidence was obtained from witnesses in support of the mesothelioma claim relating to the nature of the deceased’s exposure to asbestos during the course of his employment with the Defendant.
A Post Mortem was conducted following the sad death of Mr Graeme which confirmed that he had passed away due to a right sided pleural mesothelioma and the mesothelioma claim continued for the benefit of his estate and surviving widow.
Initially, the Defendant offered Mrs Graeme the sum of £150,000.00 as mesothelioma compensation in February 2014 and then refused to engage in a Joint Settlement Meeting to promote settlement in the mesothelioma claim.
Rather late in the day, the Defendant eventually admitted both liability and causation in the mesothelioma claim, but sought to argue a single point as to Mrs Graeme’s entitlement to a claim for loss of financial dependency. Such claims are usually pursued in fatal mesothelioma claims where dependent loved ones remain.
The Defendant argued that given that Mrs Graeme had inherited all of her late husband’s property, but for his pensions, she was arguably no worse off as a result of his death.
In essence, this was to be treated as a “test mesothelioma case” by Charles Feeny and the Defendant requested a Category A Trial at the High Court in London. This is a very rare Trial listing.
The recently retired eminent Barrister, David Allen QC, of Byrom Street Chambers provided an advice supporting the widow’s mesothelioma claim, arguing that her pensions had to be ignored for the purposes of assessing the value of her claim for mesothelioma compensation in respect of loss of financial dependency.
An extract from the Claimant’s Skeleton Argument is summarised below:
“3(1) of the Fatal Accidents Act; ….. you do not take into account any countervailing advantage which may have resulted to the dependent from the death in the form of pension or insurance benefit.”
It was argued by the Claimant that in the present case, the Defendants were seeking to do precisely what the Court of Appeal said in Wood –v- Bentall Simplex Ltd could not be done.
Only a few days before the Mesothelioma Claim Trial, in October 2014, the Defendant offered an increased sum of mesothelioma compensation of £200,000.00 and then increased this further, up to £250,000.00 on exchange of Skeleton Arguments.
The Defendant then increased their offer of mesothelioma compensation further, up to £275,000.00 and eventually the parties settled the mesothelioma claim, two days before Trial for £280,000.00 gross of deductible CRU benefits in full and final settlement.
Naturally, the Claimant was delighted that her mesothelioma claim concluded, with the Defendants having, albeit belatedly, admitted liability in the case.
This mesothelioma claim clearly shows that any Defendant arguments put forward in respect of arguing that widow’s benefits should not be disregarded under the Fatal Accident’s Act, are clearly misled and the position remains as outlined in the Court of Appeal decision in Wood –v- Bentall Simplex Ltd.
If you require assistance in pursuing a mesothelioma claim or believe you have a valid asbestos claim for any other asbestos disease then please contact us today on our Freephone number 0800 038 6767. Alternatively, head over to the ‘Contact Us’ page, complete the form and we will be in touch.
Source: Tsim, S, et al, “Diagnostic and Prognostic Biomarkers in the Rational Assessment of Mesothelioma (DIAPHRAGM) study: protocol of a prospective, multicentre, observational study”, November 24, 2016, BMJ Open, Tsim, S, et al, “Diagnostic and Prognostic Biomarkers in the Rational Assessment of Mesothelioma (DIAPHRAGM) study: protocol of a prospective, multicentre, observational study”, November 24, 2016, BMJ Open,