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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 defendants 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.

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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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