Lawyers make successful industrial disease claim - Merchant Navy Exposure to Asbestos
CASE REPORT
P v Portline 2008
Asbestos Mesothelioma Merchant Navy Exposure to Asbestos 1955 – 1958
Date of knowledge of Portline/Cunard
Summary Judgment Hearing in March 2008 before Master Whitaker RCJ
Andrew Ritchie of Counsel instructed by Boyes Turner for the Claimant
Malignant Mesothelioma
The Claimant was born in 1932. In Autumn 2006 he was diagnosed with malignant mesothelioma. The Claimant’s only exposure to asbestos was between 1955 and 1958 when he was employed by the Defendants.
Court proceedings were commenced in July 2007 and in March 2008 Master Whitaker ordered a show cause hearing.
Exposure to asbestos dust in Merchant Navy
The Claimant was in the employment of the Defendant company – part of Cunard – between 1955 and 1958, initially as a Junior Seventh Engineer, progressing to a Junior Third Engineer. During his service in the Merchant Navy he was regularly exposed to airborne asbestos dust, both at Sea and in Dock, whilst repairing the ships engine. Of particular relevance in this case was a 3 ½ month period in 1957, when the ship he was serving on – MV Port Auckland – underwent a substantial refit, in shipyards and dry docks on the Tyne. The refit was carried out by ship yard employees, but the Claimant was required to closely supervise their work and assist where possible.
The Defendants disputed the industrial disease claim on the basis that they were blue water ship owners, and had no actual or constructive knowledge of the danger of asbestos until an M notice was issued by the department of Trade in 1977. They argued they were not issued with warnings by the factory’s inspector and that the Factories Act 1937 did not apply.
On the Defendants own evidence, however, their company ran a major office in London until 1972, and had a shore based ship repairing gang. The Defendant’s own witness evidence was that ‘Port Line Ltd had an office at……London….and that office remained in service until 1972….There was a shore gang which comprised seamen under the shore Bosun and both joiners and shipwrights under the Store Carpenter….The shore gang also did a great deal of cleaning, discharging dunnage in place of a deck crew….the workshop was not involved in main engine repair work and would not have carried out any work which would involve the use of asbestos….such repairs would be carried out by shore based contractors…’
Factories Act 1937
It was common ground that the employees of the shore based ship repairers were protected by the Factories Act 1937.
The Court accepted that the Defendants were a shipping company with a shore based operation, and that the Factories Act 1937 Act applied. It was not necessary for the Claimant to show that there was a risk of exposure to substantial levels of asbestos dust. The Defendant's argument that their shore based gang were merchant mariners who were simply waiting for a sea going posting was rejected. Master Whitaker held that the Factories Act 1937 applied and that the Defendants had no reasonable prospect of defending the claim. Summary Judgment was entered for the Claimant for damages to be assessed. Leave to appeal was refused.
The industrial disease claim settled for £112,500 in March 2008.
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