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Simon Kilvington QC - Important Asbestos Case: HEMMS

16th June 2020

Material Increase in Risk


Hemms v the Trustees of the Countess of Huntingdon's Connexion and Bath and North East Somerset Council


In the case of Hemms v the Trustees of the Countess of Huntingdon's Connexion and Bath and North East Somerset Council, Simon Kilvington QC, instructed by Patrick Walsh of Leigh Day, London has successfully concluded a fatal mesothelioma claim in which the increased risk of contracting the disease was put by the Defendants at only half of the level in the controversial case of Bannister v Freemans plc.


The judge in Bannister, in which judgment was given on 19th May 2020, rejected the Claimant’s account of exposure to amosite dust left over from the removal of office partition materials in the mid-1980s. He went on though to express the obiter view that, had the Claimant established his case of exposure over the course of a week following the work, then the court would have found that would not have been sufficient to have materially increased his risk of contracting mesothelioma.


Such an approach, if adopted more widely, has the potential to affect a large number of mesothelioma cases where there has been exposure in breach of duty.


Hemms was the next case on that issue that was due to go to a 4-day virtual trial in the High Court in June 2020, in which the same medical experts (Drs Rudd and Moore-Gillon) were instructed. Following the decision in Bannister, further evidence was served from Dr Moore-Gillon in which he identified an increased risk from the exposure that was only half as much as in that unsuccessful claim.


Despite that evidence, Hemms was successfully concluded shortly before trial. Commenting on the settlement, Simon said that, ‘It is important that Claimant asbestos solicitors are aware of this argument and the steps they need to take to meet it. It is my firm opinion that the Court's use of statistics in Bannister to determine whether a risk is material is the wrong approach, as is the application of a retrospective test of whether a doctor would reassure the person exposed that he is not in danger. It is vital that such an approach is resisted and the matter be determined in the appeal courts, if necessary.’

Patrick Walsh added, “this successful outcome illustrates the fact that with careful preparation and instruction of the right experts, substantial settlements can be achieved in low dose cases"

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