Mr B then spent a few years working on a series of 'quick build' housing projects for the Eastbourne Corporation. Mr B was in regular close proximity to Artex, which was a popular and widely used coating material used by tradesmen to create textured ceilings and walls. During that time, Asbestos fibres were added into Artex powder to ‘fire proof it'. Mr B would walk through the rooms where the Artex powder was being poured out from bags into containers for mixing and he would work in the same rooms it was being applied in. There would always be a lot of dust, which Mr B would help sweep away at the end of the working day. He recalled his overalls being covered in dust at the end of each day and he would take these home for washing. Mr B then set up his own business in 1975 in which he carried on in the trade of painting and decorating.
Mr B was diagnosed with Chronic Obstructive Pulmonary disease in approximately 2008 which he had been managing with inhalers. In 2018, Mr B began to complain of chest pains and breathlessness and was suspected to have asthma. A large pleural effusion was discovered during an X-ray and a chest drain was inserted and antibiotics administered. Mr was suffering from recurrent skin cancer at the time and so further tests were delayed whilst he underwent radiotherapy. Sadly, in November 2018, Mr B was diagnosed with incurable mesothelioma, he decided against chemotherapy to preserve his quality of life and died at home in August 2019.
This was a somewhat procedurally complicated case as Walter Llewellyn and Sons had gone insolvent in 2010. Mr B’s daughter M, who was the Claimant, sought to bring a claim against BMI, who provided an employer’s liability insurance policy to the company at the time Mr B was engaged as an employee for them. As BMI itself was insolvent and had been since approx. 1995, the Financial Services Compensation Scheme, which was set up by the government as a last resort where insurers unable to pay out, agreed to meet any claims made against BMI’s policyholders, however, if the asbestos exposure was proven to have occurred before the 1st of January 1972, the FSCS would only meet 90% of the claim. This was because Employers Liability (Compulsory Insurance) Act 1969 came into force on this date, making it compulsory for employers to hold a policy of insurance to protect their employees. Proven exposure after 1 January 1972 would warrant a 100 per cent payout.
Andrew Morgan successfully negotiated a settlement of £165,000 and secured the Claimant 100 per cent of the compensation as he argued that Mr B's employment straddled the 1972 date.
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