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Smith v J & M Morris (Electrical Contractors) Ltd & (2) Midland Co-Operative Society Ltd

On 30 January 2009 HH Judge Oliver-Jones QC (sitting as a High Court Judge) handed down judgment in a high value mesothelioma claim brought by the widow of Mr. Michael Smith against 2 former employers, J & M Morris (Electrical Contractors) Limited and the Midland Co-Operative Society Limited. J & M Morris (Electrical Contractors) Limited was represented by A. John Williams, instructed by Vivienne Williams of Berrymans Lace Mawer in Manchester.

The Claimant (represented by Field Fisher Waterhouse) claimed damages totalling £2.8m. Both Defendants contested liability and quantum at trial. The claim against J & M Morris (Electrical Contractors) Limited was dismissed. The Midland Co-Operative Society Limited was found liable and ordered to pay £703,347 damages and interest.

J & M Morris (Electrical Contractors) Limited denied that Mr. Smith had been exposed to asbestos during the 4 year period when it employed Mr. Smith (1978-1982).

In finding that that he was not satisfied there had been exposure to asbestos during Mr. Smith’s employment with J & M Morris (Electrical Contractors) Limited, the Judge noted that the Witness Statements served on behalf of the Claimant did not comply with the relevant Court rules (PD 32 paras 18.1 and 18.2) and were seriously deficient. The Deceased’s own Witness Statement (taken by solicitors) was very vague; omitted very important matters; included allegations as to the use and location of asbestos that was not supported by the evidence of former work colleagues and included statements that were positively contradicted by those colleagues. The Witness Statements of 3 former work colleagues (again taken by solicitors) failed to present a complete picture; some of the evidence was inaccurate and misleading and contradicted by the oral evidence given by the witnesses. The statements “were not taken in the way dictated by the CPR and Practice Directions and were clearly not the product of rigorous enquiry.”

On quantum, the Claimant presented a dependency claim based upon Mr Smith’s anticipated earnings as an equity partner in a firm of surveyors, EC Harris LLP. Mr. Smith had joined EC Harris LLP in August 2001 and had been appointed as an equity partner in May 2002. He worked as the firm’s Regional Development Manager for the Midlands until he fell ill in February 2003. The claim was supported by evidence from Mr. Alan Brookes, a senior partner of the firm.

In the event, late disclosure of documents by the Claimant and detailed cross examination of Mr. Brookes undermined the Claimant’s pleaded case. Mr. Brookes “made a number of statements of fact and prediction which…were simply not sustained by his oral evidence and from some of which he was forced to resile completely” and, “at times, he was attempting to deliberately mislead the Court.” In short, it transpired that Mr. Smith was underperforming in his role for reasons unrelated to his illness and that, prior to Mr. Smith’s illness, Mr. Brookes had set about replacing him. Mr. Smith would probably have left the partnership and secured alternative employment elsewhere. The dependency claim was therefore assessed on this scenario although the Judge also awarded a sum for loss of the chance that Mr. Brookes might have remained with EC Harris in an alternative role that allowed him to share in the profits.

Finally, the Judge dismissed a claim made on behalf of BUPA for reimbursement of £32,412 private medical expenses. Examination of the contractual arrangements disclosed that Mr. Smith was not a party to the BUPA contract and that there was no legal obligation on him (or his estate) to recover BUPA’s outlay.

A copy of the judgment is available here.

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