Advice for retired Architects facing claims for asbestos related damages
In February 2013, three surviving partners of Robert Matthew Johnson Marshall (RMJM), all in their nineties, received writs, quite out of the blue, served from the Edinburgh Court of Sessions. The suit originated after the sad death from Mesothelioma (a condition, like asbestosis caused by exposure to asbestos) of one Mr Miller, whose family were seeking £1.1m compensation from previous employers who may have brought him into contact with asbestos.
This terrible disease takes decades to incubate and the source of infection is impossible to identify. So society compensates victims with a law based on the principle that responsibility for damages is shared, in proportion to the relative possibility of exposure, amongst all those whose employment of affected individuals may have caused infection and can be shown to have been negligent or to have breached statutory requirements in allowing employees' exposure to asbestos dust.
Whilst this principle is intended to share the burden of damages, an inevitable consequence is that protagonists named in such suits will tend to want to shift the burden onto each other - and are at liberty to seek out and attempt to prove the case against further parties to share the burden if they possibly can.
This can create a long, expensive, and often very stressful process, as it did in the case of the surviving RMJM partners, until a point was reached some months ago when it was proven that the unfortunate Mr Miller's exposure to asbestos while working for RMJM as a clerk of works at Ninewells hospital, Dundee, was negligible, and in any event not negligent. And finally the bereaved family have been awarded substantial damages in excess of £360,000 which will be paid by others.
The case was fought with power of attorney by the sons of two of the pursued former RMJM Partners, Ben Derbyshire (on behalf of Sir Andrew Derbyshire), and Marcus Lee (on behalf of Vernon Lee) and there was plenty of support from sympathetic friends and colleagues. But the experience revealed a lack of factual information and practical support available to people like Andrew and Vernon, or their families. There is little readily available information on how the law works, where to go to find insurance, what sort of specialist legal advice to get or who the specialists in the field are. This added greatly to the time spent and the costs incurred fighting the claim.
So, with the help of Ian Leach of BLM Law, the firm that ultimately obtained the release of the three former partners from this nightmare, a website has been launched (www.asbestosfaqs.co.uk) with answers to a range of frequently asked questions, contact names and numbers and an interactive blog which it is hoped will help others to short-circuit many of the difficulties faced by the former RMJM partners. Both Iain Connelly, and Stephen Hodder, Presidents of the RIAS and RIBA respectively, have agreed to provide links to this from parts of their Institute websites that are accessible to non members.
Obviously, a significant aspect is that retired architects who are no longer paying annual subscriptions are most likely to be afflicted by this problem. And this case should serve as a reminder to all practicing architects that the insurance industry cannot necessarily be relied upon to keep a record of historic policies, and to check for copies of Employers' and Public Liability as well as Professional Indemnity Insurance certificates for all past years of practice. Such claims are usually dealt with by EL/PL insurers but difficulties can arise when claims are intimated against individuals, where the employing company no longer exists, where there was no insurance cover in place or (as in this case) where the insurance cannot be traced.
Here are the FAQs that to which you will be able to find answers on this new website:
Q1. What should I do if I, or my company, receive a letter of claim or are served with court proceedings?
Q2 What will my insurance cover?
Q3 What happens if I am not able to trace the full insurance cover for the alleged period of asbestos exposure?
Q4 Are there any timescales for bringing such actions?
Q5 What happens if I cannot trace any insurance cover?
Q6 I am retired from my firm/company. Can I still have any liability?
Q7 I was a partner in a firm which subsequently transferred all assets and liabilities to another company. Is there any potential for liability against me arising from the period when I was a partner in that firm?
Q8 How do I find a suitably qualified solicitor?
Q9 What could happen if I ignore any intimation of claim or a court summons?
Q10 What sort of asbestos-related conditions can people claim for?
Q11 How much can affected people claim for?
Q12 If insurance cover is established do I need to do anything else?
Q13 What action should I take to protect myself from possible future action?
Q14 When are the years of practice from which I may be at greatest risk?
Q15 Can I obtain legal aid, is there other financial support available to help pay for my defence, can I claim costs if I win?
Answers will be provided in relation to both Scottish and English law and the website can be found at www.asbestosfaqs.co.uk
Ben Derbyshire, Marcus Lee, Ian Leach, Chris Fletcher, August 2014