Kent man wins his appeal for award from asbestos payment scheme

Michael Stammers, pictured, was diagnosed with the asbestos related cancer, mesothelioma, more than 50 years after an alleged exposure to asbestos at the Garage whilst undertaking maintenance, repairs and servicing of a range of vehicles including invalid carriages named “Invacars”.  

The brake linings on the Invacars and other vehicles were made of a combination of asbestos plus a resin.  The practice at the Garage was to take the brake drum off from the axle, to bang out the accumulation of dust from the drum on to the floor and use a compressed air line to blow away all the remaining dust from the brake assembly around the brake pads.  This would cause the dust to blow out around him.  

Michael instructed Harminder Bains Partner at Leigh Day to obtain compensation in light of the above exposure against the Garage.  Harminder issued court proceedings against the Garage on 18th January 2022 and obtained judgment in default on 22nd April 2022.  At the time of issuing, the Garage was a live company and Harminder believed it had assets; she also had been advised by the Garage that they had forwarded details of the claim to their insurers. 

However, upon receipt of the judgment, it became clear that the Garage had no assets, nor any employment liability insurance.

Therefore, Harminder submitted a claim on 9th May 2022 under the DMPS to Topmarks, the Scheme administrators, requesting that Michael be paid a lump sum under the Scheme. 

Topmarks, however, rejected the application on the basis that Michael had already pursued a civil claim (and indeed had obtained judgment), thereby falling foul of section 2 (1) (c) of the Mesothelioma Act 2014 which states that to be eligible under the Scheme, it must be shown that:
“the person has not brought an action for damages in respect of the disease against the relevant employer or any insurer with whom the employer maintained employers’ liability insurance at the time of the person’s exposure to asbestos”. 

Given this clear injustice, Harminder advised Michael to appeal the decision.  At the appeal hearing on the 14th October 2022, Topmarks instructed lawyers who submitted an 11-page response to the appeal and argued “if a person elects to pursue a claim for damages through the courts, then they must follow all of the remedies that the civil justice system has to offer right through to the end...  If that leaves the person without compensation, so be it”.

On behalf of Michael, it was argued that he was caught between two stools. On the one hand, as the Garage was an active company, pursuant to subsection 2 (1) (d) of the Mesothelioma Act 2014, Michael was obliged to bring an action against it; but then he was denied any form of payment as a result of doing so, pursuant to subsection 2 (1) (c).

This was manifestly unfair, and contrary to the aim of the Scheme. It was argued that for the Scheme not to be undermined by this logical fallacy the proper interpretation of subsection 1 (2) (c), must be:

“the person has not brought an effective action for damages in respect of the disease against the relevant employer or any insurer with whom the employer maintained employers' liability insurance at the time of the person's exposure to asbestos”.

When the Tribunal Judge heard both sides of the argument, thankfully, it was found that Michael had not brought an effective action for damages, and accordingly agreed that he was eligible for a lump sum payment under the Scheme.  See link to judgment.

After the judgment was given, Michael said:

“Harminder Bains of Leigh Day was our solicitor, she helped me with my claim as I have mesothelioma which is cancer of the lining of the lung. I contracted this disease when I worked in a garage changing brake shoes, this was over 50 years ago and was my first job. 

"The first thing Harminder did was get all the experts together which confirmed my disease Mesothelioma.  She then went to court on my behalf and won the case, but subsequently the company had no assets although they are still trading today. She didn’t leave it there, she then went to DMPS and because I had judgment from the court, I wasn’t allowed to claim from DMPS which is unfair as the wording states if you have claimed from your previous employer you cannot claim from them as it clearly states yes or no.

"However, Harminder would not leave it there she went to appeal, and our barrister Mr Kerr also thought it was unfair and took our case pro-bono.

"We then had a hearing on the computer with Harminder and Mr Kerr, and a barrister for the scheme and a Judge. And the Judge was in our favour and we won the appeal.  We hope this will help others to make a claim. 

"We also would like to thank Harminder Bains and Mr Kerr the barrister for this amazing result."

Harminder Bains said:

“The Act underpinning the DMPS criteria plainly needs to be clarified to make it explicit that claims can be made in circumstances such as Michael’s.

"If the Tribunal Judge had not overturned the Administrator’s decision, Michael would have been deprived of compensation which he clearly can benefit from, in so many ways, such as paying for care and obtaining treatment which he would not be able to afford.  This would have been a great injustice. 

"It is now time that the Government reviews the Act and Scheme itself.  For a start, the payment received under the Scheme is far less than Michael would have obtained in the civil action.  In addition, I can’t help but feel that Topmarks have deprived many other victims of payments as the victims have not had legal representatives who are prepared to continue to fight their cases on a pro-bono basis.  Therefore, the number of payments from the Scheme is artificially low.”  
 
Counsel who worked with Harminder was Patrick Kerr of 12 Kings Bench Walk.