Robert O’Leary

Industrial Disease

Robert is recognised as a leading practitioner in occupational disease litigation. He has extensive experience in asbestos related injuries, occupational cancers, occupational asthma, NIHL, stress at work, HAVS and work-related upper limb disorders. His work often requires consideration of complex medical, engineering, occupational hygiene, toxicological and epidemiological evidence and scientific literature. He has defended a number of mesothelioma cases where the sufferer is based abroad.

Robert is adept at working as part of a team, including the large teams assembled to deal with group and multi-party litigation.

He has experience of dealing with disease cases at all levels, including in the Supreme Court. He regularly appears against leading counsel.

Robert acts in a large number of asbestos related matters each year for Claimants and Defendants, regularly dealing with high value living and fatal mesothelioma and lung cancer cases, as well as claims concerning asbestosis or pleural thickening. He has been instructed in numerous mesothelioma cases involving claims for immunotherapy treatment.

He is currently working with the in-house solicitors of a multi-national company advising them on the creation of an historical documents database for their asbestos archive.

He is currently involved in hundreds of military claims of significant value for former military personnel who suffered NIHL and / or non-freezing cold injuries as a consequence of their service. In the first of the cohort of such cases to be tried, the Claimant, who suffered NIHL and tinnitus was awarded a total of £545,000 after an agreed liability apportionment of 80:20: Inglis v MOD [2019] EWHC 1153(QB).

He has also recently secured damages of £400,000 for a former soldier who suffered a non-freezing cold injury to his hands and feet as a result of exposure to extreme cold whilst on an exercise in Canada.

Robert was junior counsel for the claimants in the Nottinghamshire and Derbyshire Textile Litigation (Parkes v Meridian [2007] B1 (QB), in the Court of Appeal (Baker v Quantum Clothing Group [2009] EWCA 499) and culminating in Baker v Quantum Clothing Group and others [2011] UKSC 17 in the Supreme Court (700+ claimants, 7 test cases, all involving NIHL).

He was instructed by the government in Jones and others v Secretary of State for Energy and Climate Change (The Phurnacite Workers Group Litigation) [2012] EWHC 2936 (QB), Swift J. (200+ claimants seeking damages for occupational cancer, COPD and asthma as a result of occupational exposures to dust and fumes).

Robert acted for the claimants in the Glamalco litigation (numerous former workers from an aluminium windows and doors factory suffering NIHL) and in the British Telecom “toneset” litigation (thousands of BT engineers who suffered NIHL as a consequence of using line testing equipment known as “tonesets”).

He acted in the generic case of Robert Gary Watkins v BT (2010) (Cardiff County Court, 8CF08717) in which admissions of breach of duty for green and unmodified yellow tonesets were secured, thereby paving the way for thousands of former installers, engineers and jointers to obtain compensation for noise induced hearing loss and tinnitus. He was also successful on behalf of a Claimant in what is thought to be the first case involving the moving of the 8kHz anchor point under the LCB Guidelines 2015 (Phillip Marchant v BT (2017) (Cardiff County Court, C91YJ273).

He acted in the South Wales Fire Fighter Deafness Litigation, and successfully represented three train drivers against Arriva Trains Wales in claims for upper limb disorders (Thomas and others v Arriva Trains Wales Ltd [2009] EW Misc 8 (EWCC), Lawtel AC0123076).

He advised extensively on the recoverability of fixed success fees, dealing with the collation and preparation of complex medical and scientific evidence, and liaising with costs counsel, in the case of Dalton v BT [2015] EWHC 616(QB).

Robert has a detailed knowledge of limitation in personal injuries actions having been involved in numerous limitation disputes at first instance and in the Court of Appeal (for example, Furniss v Firth Brown Tools [2008] EWCA Civ 182 – noise-induced hearing loss, in which Robert acted for the Claimant and which raised issues of limitation and the burden of proof – and Parsons and Warren v Perfectskill [2002] EWCA Civ 130 a claim in which he acted for the Defendants against a group of workers from a private mine who were claiming damages for industrial asthma).

He writes the chapter in Munkman on Employer’s Liability dealing with Occupational Cancer.

Selected Cases

• RI v FR Limited [2022] – defence of a living mesothelioma claim pleaded at £1.25m which settled for £800,000 plus immunotherapy treatment.
• JC v PC & CO Ltd [2021] – defence of a living mesothelioma claim involving a claimant based in Australia who was exposed to asbestos whilst working as a carpenter in the UK, involving cross border issues, accountancy and care evidence – settled shortly before trial for £430,000.
• KAT v X Council [2021] – clam for a lady dying of mesothelioma contracted as a result of asbestos used in the structure and fabric of her council flat which she started to occupy in the early 1980s. Achieved settlement at JSM for the Claimant notwithstanding previous authority absolving a local council from liability in similar circumstances: Lugay v London Borough of Hammersmith and Fulham [2017] EWHC 1823 (QB).
• Scarborough College Ltd v Winter [2021] EWHC 1549 (QB) – appeal in a mesothelioma case relating to a judgment on liability entered under the Show Cause procedure.
• MC v MOD [2020] – NIHL and tinnitus caused by exposure to loud noise in the military. Liability agreed at 70:30 in the Claimant’s favour. Settled for £450,000 after the 30% discount was applied, equivalent to a valuation on full liability of £642,857. Lawtel 28^th October 2020 AM0203714.
• KR v UCW NHS Trust [2020] (QBD) – Defence of a living mesothelioma claim involving an Australian GP, wife and mother in her 40s involving complex cross border issues, forensic accountancy and actuarial evidence and care evidence. Trial due to be conducted entirely over video link given most of the witnesses in Australia and because of the Covid-19 pandemic. $6.8m (Aus) claimed. Settled for $4.8m (Aus) (£2.4m) shortly before trial.
• NM v MOD [2020] – NIHL and tinnitus caused by exposure to loud noise in the military. Liability agreed at 75:25 in the Claimant’s favour. Settled for £550,000 after the 25% discount was applied, equivalent to a full liability valuation of £733,334 – Lawtel, 14^th February 2020 AM0203610.
• Inglis v MOD [2019] EWHC 1153(QB) – NIHL and tinnitus caused by exposure to loud noise in the military. Liability agreed at 80:20. Damages of £545,000 awarded after 20% discount applied. This was Outstanding Case of the Year in the PI Awards, 2019.
• S v MOD [2019] – NFCI caused by exposure to wet and cold conditions in the military. Settled for £400,000.
• B v Royal Mail Group [2019] – what was thought to be a mesothelioma case, turned out not to be when the claimant died and an autopsy was carried out. He had in fact died of a stroke. Claim settled on the basis that but for the diagnosis of mesothelioma during his lifetime, the deceased’s warfarin would not have been stopped, and he would not have suffered a blood clot and subsequent stroke and died.
• Dalton v BT [2015] EWHC 616 (QB) – Advised extensively on the recoverability of fixed success fees, dealing with the collation and preparation of complex medical and scientific evidence, liaising with costs counsel, Ben Williams QC.
• Various Claimants v British Telecommunications PLC (Toneset Cases) (on-going) – Multi-party litigation involving thousands of telecommunications engineers suing for noise induced hearing loss caused by the use of amplifier / oscillator equipment at work.
• Jones & Others v Secretary of State for Energy & Climate Change (The Phurnacite Workers Group Litigation) [2012] EWHC 2936 (QB), Swift J. (main judgment); 2 Costs LR 230; [2012] EWHC 3647 (QB) Swift J (costs); [2013] 3 All ER 1014; [2013] EWHC 1023 (QB), Swift J (disbursement credit funding) (Affirmed C.A. [2014] 3 All ER 956) – Group litigation in which hundreds of former Phurnacite workers or their estates sued in respect of occupational cancers and respiratory diseases.
• Baker v Quantum Clothing Group Ltd [2011] UKSC 17 – Employers not liable at common law or under the Factories Act 1961 for noise induced hearing loss sustained by employees before the coming into force of the Noise at Work Regulations 1989.
• Thomas & Others v Arriva Trains Wales Ltd [2009] EW Misc 8 (EWCC); Lawtel AC0123076 – Claims for train drivers who suffered upper limb disorders as a consequence of the controls in the cabs.
• Carter v Freeman Group PLC [2008] EWHC 1752 (QB) (Appeal); (2007) Lawtel AC0116614 (First Instance) – Inheritance of liabilities in asbestos litigation; procedure on appeals in summary judgment applications.
• Furniss v Firth Brown Tools [2008] EWCA Civ 182, C.A. – Limitation of actions in NIHL cases.

Articles

• Living mesothelioma victims – A direct claim against insurers
• Robert O’Leary considers the issue of vicarious liability following Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613 (QB)

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News

• Living mesothelioma victims – A direct claim against insurers
• Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7

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Qualifications

• 1989-90: Inns of Court School of Law Bar Vocational Course (7/800)
• 1986-89: University of Wales, College Cardiff: LLB (first class)
• Sir Samuel Evans Scholar (1989)
• Sweet & Maxwell Law Prize (1989)
• Cardiff University Law School Prize (1989)

Memberships

• PIBA

Rankings

• Robert is recommended as a leader in his field.
• Robert is one of only about 20 barristers nationally to be listed in the Chambers & Partners National Disease Spotlight Table.