In this Scottish case, we secured abandonment of a return claim with costs in favour of our client.

The Background

In 2010, the pursuer raised a claim against two former employers. He alleged that as a result of negligent exposure to asbestos fibres in his employment with those two companies, he had developed pleural plaques (asymptomatic scarring of the lungs) and asbestosis (a lung disease).

Settlement of his claim was agreed for pleural plaques only as there was no consensus that he had asbestosis. His claim was also settled on a provisional basis under section 12(2)(b) of the Administration of Justice Act 1982. This allowed the pursuer to return to court for a further award of damages in the event that he developed a more serious asbestos related condition, including asbestosis with a respiratory disability of at least 25%.

In April 2023, the pursuer returned to court, claiming he now suffered from asbestosis with a respiratory disability of 40%. He produced a respiratory physician's report in support of his claim.

The Investigation

We recovered and reviewed the pursuer's up to date medical records. Those records indicated that the deterioration in his respiratory condition was being treated by his clinicians as idiopathic pulmonary fibrosis (IPF) - a similar condition to asbestosis but not one that is caused by exposure to asbestos fibres.

Given this finding, we instructed our own respiratory physician's report, and a report from a consultant radiologist. This was done on a joint basis with the other defender.

The opinion of the respiratory physician was that the asbestosis evident within the pursuer's lungs did not reconcile with the level of respiratory disability the pursuer presented with at examination. His view was that only 10% of the pursuer's overall breathlessness could be attributed to his asbestosis. A respiratory disability of 10% was insufficient to meet the required return condition of 25%.

The respiratory physician's report was supported by the consultant radiologist who was of the view that the asbestosis identified in the pursuer's scan could not be making a significant contribution to any breathlessness.

The Strategy

From the moment the defenders' expert medical reports were disclosed, a robust stance was taken – this was not a claim that could succeed as the pursuer has not met his return condition.

Of course, the pursuer had his own supportive report. However, we argued that the defenders' expert evidence would be preferred because:

(1) unlike the pursuer's respiratory report, the defenders' was based on an examination of the pursuer as well as a records review. This meant the defenders' expert was better placed to comment on the clinical presentation.

(2) the pursuer did not have a radiologist to challenge the view of the defenders' radiologist.

The Outcome

In the week prior to proof, some seven months after the defenders' reports had been disclosed, the pursuer intimated an intention to abandon the return claim with no costs due to or by any party.

The defenders were at risk of the proof going ahead and either the pursuer's expert being preferred, or the defenders succeeding but not being awarded costs because of the application of Qualified One Way Costs Shifting. However, our client was content with our recommendation that this was a case where costs should be insisted on – not least because the pursuer could have abandoned his claim many months earlier. The pursuer's solicitor eventually conceded costs.

Of course, should the pursuer's respiratory disability from asbestosis worsen to 25% at some point, he can still come back for further damages.

Contributors

Ellen Andrew

Associate

Laura McMillan

Partner & Director of Advocacy