low level asbestos exposure
Have the floodgates been left wide open?
17 March 2011
Following the Supreme Court decision in the cases of Costello
and Willmore, it is not surprising that the headline news is that
there will now be a flood of cases, where the claimant has
developed mesothelioma following 'low level' exposure to asbestos.
Scratch beneath the headlines and there is more to the cases and
little hope for the future for organisations and their insurers
when dealing with mesothelioma cases.
The facts
Mrs Costello worked in an office at a factory which produced
steel drums. Whilst she would on occasion go on to the shop floor,
it was accepted that her exposure was very light. There was
statistical evidence before the court that this exposure had
increased her total exposure by 18%. The judge at first instance
did not accept that the claimant had proven that the exposure was,
on a balance of probability, the likely cause of her condition. He
dismissed the claim.
Mrs Wilmore, after a number attempts at her case, settled on the
allegation that she had been exposed to asbestos as a pupil at her
secondary school. The judge at first instance applied the Fairchild
test and, on the facts, found in her favour.
The Court of Appeal overturned the Costello decision and upheld
the Willmore decision.
The defendants appealed.
The issue
Behind the attention grabbing headlines, the real issue was
whether the Fairchild exception to the ‘but for’ test - which
applies to cases where there are a number of defendants - has any
relevance in a case where a sole defendant is the sole known source
of the occupational asbestos exposure.
To recap; the Fairchild exception is that each organisation
which has been responsible for exposing the claimant to a quantity
of asbestos and has materially increased the risk of developing
mesothelioma is jointly and severally liable, in other words; each
can be sued for the whole of the claim. This is, of course, subject
to a breach of duty being established.
The defendants in the cases of Costello and Willmore argued that
Fairchild has no place in a single exposure case and that the court
should simply ask the claimant to prove that, ‘but for’ the
exposure, she would not have developed mesothelioma. To prove her
claim in a single exposure claim, the claimant had to demonstrate
that the exposure complained about was more than double that of
environmental exposure. Further, they argued that even if the
Fairchild exception applied, the exposure could not be considered
as material, unless the exposure doubled the risk of developing the
condition.
The Supreme Court answered in clear terms ‘no’.
The court reminded the defendants that the foundation to the
Fairchild exception and the Barker/Compensation Act 2006 S3 debacle
was built on the rock of uncertainty. If science could not
determine which fibre or fibres caused the development of the
mesothelioma, how could claimants prove how the injury was caused
on the balance of probability?
Fairchild is to be applied whether you are dealing with a single
exposure case or multi exposure case. It therefore follows that
epidemiological evidence has no place in mesothelioma cases, save
on the issue of apportionment between defendants.
Is there any solace? Not really.
The Supreme Court held that S3 of the Compensation Act is not a
bar to the courts reverting to the test of a balance of
probabilities in mesothelioma cases, should medical science become
clearer in its understanding of the biological cause of the
disease. So yes, there is hope at some distant point in the future,
unless in the meantime Fairchild is departed from, which is
unlikely.
Both cases reaffirm the principle that every case will turn on
its own facts. But there is no getting away from the view that very
low levels of exposure to asbestos may constitute a material
contribution.
You should note that in the case of Willmore the Justices
acknowledged that the court below had been very generous indeed to
the claimant on the findings of fact on the levels of exposure, and
yet, they did not have the conviction to follow through and
overturn the judgement!
The implications
There will be an increase in the number of claims pursued
involving ‘low exposure’. It has always been difficult to secure
cogent evidence to rebut an allegation of exposure - just think how
much harder that has become from the defendant’s perspective.
What next?
There is work to be done. Ensure the evidence you secure is
capable of withstanding the scrutiny of the court. Science is
forever evolving and you need to be aware of up to date scientific
thinking on the biological causes of mesothelioma. Statistical
studies which you have relied on in the past are still relevant on
issues of apportionment between defendants, but should be reviewed
to ensure cogency.
And remember, although it may feel like it has just got a lot
easier for claimants, they still have to prove breach of duty and
exposure to asbestos.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.