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Are mesothelioma claims still defendable?

27 February 2014

While Fairchild and section 3 of the Compensation Act has left insurers feeling less than optimistic about defending mesothelioma claims, recent case law may give cause to reconsider this issue.

In Fairchild v Glenhaven1 the House of Lords recognised the need for a modified approach to the ‘but for’ causation test where it was impossible to prove which tortfeasor was responsible for causing the claimants mesothelioma and allowing full recovery against any tortfeasor. The fact that such conditions may arise with a typical latency period of between 20 to 50 years, makes it extremely difficult for any potential tortfeasor, who has exposed the claimant to asbestos, to argue that their exposure was irrelevant.

The prospect held out in Barker v Corus UK Limited2 to allow a tortfeasor to limit their liability by apportioning negligent exposure was ended by section 3 of the Compensation Act 2006 which made each tortfeasor jointly and severally liable for the entire amount of damages.

In Sienkiewicz v Greif3 part of a co-joined appeal with Knowsley Metropolitan Borough Council v Willmore the court rejected the argument that it was necessary for a claimant to prove that the exposure had at least ‘doubled the risk’ of the claimant developing mesothelioma. However, it did confirm that section 3 of the Compensation Act has not altered the common law and it is still necessary for the claimant to prove:

  1. A duty of care.
  2. A breach of duty by negligently exposing the claimant to asbestos fibres and consequent asbestos injury that was a reasonably foreseeable result of that negligence.
  3. The defendant’s negligence of breach of duty caused a material increase in the risk of the claimant developing mesothelioma.
  4. The loss and damage suffered are not too remote.

The importance of this test was confirmed in the case of Williams v University of Birmingham4 where a post graduate student was exposed to asbestos fibres at a level of just above 0.1 fibres/ml for a period of 52-78 hours. The judge at first instance decided that a material increase in the risk of mesothelioma was sufficient to conclude that a breach of duty has occurred. On appeal it was confirmed that for the university to be negligent the court would have to conclude that exposure at this level when it occurred in 1974 bought about a foreseeable risk of an asbestos related injury. This decision was successfully appealed on the basis that the judge could not properly have concluded the university was in breach of its duty of care on the evidence available. Interestingly the appeal did not succeed in overturning the decision that there had been a material increase in the risk of the claimant contacting mesothelioma, as this was a finding of fact for the trial judge.

The requirement for there to be sufficient exposure was highlighted in Garner v Salford City Council5. The demolition of a swimming baths was said to have caused dust to find its way onto the playground where the claimant attended school. The court found as a matter of evidence that the removal of the boiler house (which would have contained the relevant lagging) would have taken no more than a few days. The judge considered the amount of dust fibres generated depending upon whether the lagging was sprayed or removed dry (the latter would have led to a greater concentration of fibres being released into the air). The court found that even if the claimant had been in a playground when dust containing asbestos drifted over there was no certainty that the level of exposure would have exceeded the relevant control limits in place at the time.

It is important to bear in mind that the standard of conduct expected is of the reasonable and prudent employer at the time of exposure taking place taking into account developing knowledge about the particular danger. See Baker v Quantum Clothing Limited6.

It was also stressed that it was not necessary for the court to determine how the claimant came to develop mesothelioma if it were not caused by the defendant. The evidence of the experts was that during the 50’s, 60’s and 70’s asbestos was widely used in the UK and higher levels of asbestos were contained within the ambient air which many people were exposed to, whether at home, work or elsewhere increasing the risk of an individual developing mesothelioma. The claimant’s own medical evidence accepted that such a condition could arise with low level background exposure.

One issue the court considered in Sienkiewicz was whether in each case exposure should be considered having regard to the claimant’s overall exposure during their lifetime, which could alter the test of whether exposure in a particular case was de minimis. This would effectively mean that where a claimant had been subjected to high levels of exposure during their lifetime and their exposure was light in relation to a particular alleged tortfeasor it was open to them to argue that, having regard to the claimants overall exposure, their exposure should be considered insignificant and de minimis.

In summary, recent cases involving mesothelioma often involving secondary exposure to asbestos emphasise the importance of obtaining good evidence as to the claimants level of asbestos exposure for the period claimed. This will need to be seen against a background of total exposure during their lifetime. The level of exposure once determined should be judged against the relevant knowledge at the time when the exposure occurred before a decision is made on whether to admit breach of duty. Such investigations can be especially difficult with the expedited procedure followed in the High Court where at the first CMC (case management conference) the court requires the defendant to ‘show cause’ as to why judgement should not be entered.

The Mesothelioma Bill 2013-14

The fund has been descried as the EL equivalent of the Motor Insurance Bureau. Given the particular problems of lengthy latency periods with these types of claim and consequential difficulties in tracing employers and their insurers, the scheme is a reasonable attempt at providing funds to those who develop this terrible disease. The cut off point for those diagnosed on or after 25 July 2012 does seem arbitrary, as this will still impact upon living sufferers of this disease who were diagnosed before 25 July 2012. These insurers may also feel unhappy that they are being asked to fund a scheme where the original insurer has avoided payment.

1 [2002] 3 W.L.R.89
2 [2004] P.I.Q.R P34
3 [2011] 2 W.L.R 523
4 [2012] P.I.Q.R P4
5 [2013] EWHC 1573 (QB)
6 [2011] 1 W.L.R 1003

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The content on this page 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.

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