Tuesday 18 December 2018

'Dying man' who claims he has cancer related to asbestos exposure seeks damages against former employer

The High Court (Stock Image)
The High Court (Stock Image)

Aodhan O'Faolain and Ray Managh

“A dying man,” who claims he contracted terminal cancer from being exposed to asbestos dust 45 years ago, has Friday asked the High Court to speed up the hearing of a damages claim against a former Co Kildare employer.

77-year-old Patrick Hayes, who is terminally ill in a hospice in Monasterevin, is suing Tegral Building Products Limited and alleges he was not warned of the dangers of air-borne asbestos fibres or given protection when he worked at Tegral Building Products Limited factory in Athy for 42 weeks in 1972. 

Mr Justice Michael Twomey heard that the Co Kildre firm, which is yet to file a defence to the claim,  stated in correspondence that it has no record confirming that Mr Hayes worked with it. 

Barrister Rachel Meagher, counsel for Mr Hayes, told the court that he was diagnosed with malignant mesothelioma --- a form of cancer most commonly associated with asbestos exposure.  

Ms Meagher, who appeared with solicitors Patrick V Boland and Sons, Newbridge, said Mr Hayes claimed the company had been negligent and in breach of duty by its failure to have any regard for his safety when he worked for them.

Mr Hayes alleges he was required to work in an environment where he was likely to inhale asbestos dust and claims the company failed to provide him with a safe place of work while having to move asbestos sheets which are used for insulation and fire proofing.

During the course of his employment he claims he was not given an adequate protection and had inhaled asbestos fibres, the exposure to which he alleged had resulted in his cancer.  

Barrister Neal Flynn, counsel for Tegral Building Products, told Judge Twomey that Mr Hayes, with an address at Kilcrow, Athy, Co Kildare, had worked for most of his life in the UK and had commenced proceedings against the company only on December 12th last after returning to Ireland in September last. 

When the case came before the High Court Friday Ms Meagher said her client was “a dying man” and was currently continuously on oxygen in Monasterevin Hospice.  “It is not known how long he will live,” she said. 

She said chemotherapy and radiotherapy had been deemed by his doctors as being only marginally beneficial and that treatment of his condition was largely palliative.

Ms Meagher said Mr Hayes claimed that the only place he had been exposed to asbestos during his working career was when he was working for Tegral in Athy. She said it had been established through Social Welfare records that Mr Hayes had worked for the company for 42 weeks in 1972 and had paid social welfare contributions for those weeks.

She told the court it was her opinion and that of his solicitors that  the company had no bona fide defence to Mr Hayes’ claim and she asked the court, due to his condition and unknown prognosis, for various orders expediting the hearing of his claim.

Mr Hayes’ legal team sought an order lawyers sought an order requiring the filing of a defence to his claim by January 3 and a further court order directing that his personal evidence be taken on commission by a lawyer at Monasterevin Hospice on January 8 next.  Ms Meagher said Mr Hayes would not be able to come to court to give evidence. 

Tegral’s barrister, Neal Flynn, said his client would "be putting forward a defence," and was agreeable to allowing Mr Hayes give evidence on commission but raised concerns about the speed in which the case was being forced on especially as there was a lack of clinical evidence before the court concerning Mr Hayes’ condition.

Mr Flynn said it was asking the court to take a huge leap in allowing Mr Hayes’ application to be squeezed into such a short time space.  Although Mr Hayes’ medical records had been forwarded to the defendants Mr Hayes’ legal team did not know what particular inquiries would be made by Tegral in order for it to meet the case.

“Mr Hayes has spent a large portion of his life working on building sites throughout the UK and could have been exposed to asbestos on any building project,” Mr Flynn said.  “It is unreasonable for the plaintiff to force these proceedings on when whe are simply not ready to meet them.”

Mr Justice Twomen, in his ruling, commended both sets of lawyers for agreeing certain matters that would expedite the claim. He said there was a lack of detailed medical evidence before the court and he noted correspondence from the company that said it had no record of having employed Mr Hayes.

“I think the balance of justice lies in allowing evidence to be taken on commission on January 8th next and the court so directs,” Judge Twomey said. Adjourning the matter he said he would not make any order regarding legal costs of the application.   

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