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claimant is allowed two bites at the cherry!

8 August 2014

In the recent decision of John Patrick Dowdall v (1) William Kenyon & Sons Ltd (2) Beca (Engineers) Ltd (3) Greenield & Payne Ltd (2014), the court decided 2 preliminary issues in favour of the claimant.

Mr Dowdall had been exposed to asbestos throughout his employment with a number of employers. He issued a claim for asbestosis against seven of ten employers and received £26,000 by way of damages in full and final settlement of the claim. Whilst Mr Dowdall had issued a claim for provisional damages, this was not pursued, the risk being bought off in the settlement for asbestosis. He could therefore not come back to court in the event he developed mesothelioma.

Some years later Mr Dowdall unfortunately developed mesothelioma. Clearly he had no recourse against the original seven as there was no provisional damages order of 2003. Thus, he pursued a fresh claim against the remaining three employers. Crying ‘foul’, the 3 employers and their insurers, who were always known to the claimant (there was some confusion over one) asked the court to find firstly that the second claim was an abuse of process – after all Mr Dowdall had already received full and final settlement. Secondly, even if the court did not accept that argument, the claim was surely statute barred, the court accepting that the claimant had knowledge in 1998 against two of the defendants and by 1999 against the remaining defendant.

On the first issue, it was held that as the three defendants were not a party to the first action there was not an abuse of process. The claimant, whilst having settled a claim for asbestosis in 2003 had not settled the claim for mesothelioma. There was no solace offered on the issue of limitation, the court finding that given the significant level of damages at stake, the fact the any deterioration in defence evidence was unlikely to make a difference, S33 of the Limitation Act was applied allowing the claim to proceed out of time.

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