The issue of victims suffering from “secondary exposure” to asbestos was recently raised as a result of concern expressed over their eligibility to make a mesothelioma claim when the Mesothelioma Bill comes into force later this year.
Wives would often handle their husband’s asbestos contaminated overalls / work clothes and inhale the fibre particles when “shaking out the dust” before washing by hand. In a number of cases, the wives would also be diagnosed with mesothelioma cancer up to fifty years later and a tragic reduction in life expectancy of between four to twelve months.
Bringing a prosecution of liability by a husband’s former employer and / or insurer for the wife’s secondary exposure can sometimes be equally as challenging as it is for securing mesothelioma compensation for the husband who was directly exposed at his workplace.
Further financial redress
Recently, a “secondary exposure” case was heard in which a decision by the judge at the Court of Appeal has been described as “ground breaking”, and opens up the possibility for securing further financial redress as a result of a “loss of dependency” on a deceased husband and based upon a normal life expectancy as opposed to the shortened time remaining.
The court heard how a wife’s husband had been exposed to asbestos over a forty year period caused by working with boilers and other equipment lined with asbestos insulation while employed at an electronics firm. Lacking a washing machine, the wife regularly hand-cleaned her husband’s asbestos soiled clothing after shaking out the surplus dust and consequently, breathing in the fatal fibres.
Two years following the death of her husband from mesothelioma after a typically long gestation period lasting decades, the wife was also diagnosed with the fatal incurable cancer and a life expectancy of little more than 6 months.
The wife was initially awarded damages made against the former employer for loss of dependency on her husband based on the assumption that as a result of her own mesothelioma, life expectancy would be around seven months. However, a second claim was made “in her own right”. The additional amount claimed was for “future loss of dependency arising from her husband’s death” because the employer’s negligence had also “cut short her life” entitling her first dependency claim to be much greater.
The second claim was disputed on the grounds that “dependency on her husband would inevitably have ended on her own death and therefore no loss would be suffered after that date.” The decision was contested by the wife and at the Court of Appeal, the judge ruled in her favour, that “there was no reason or principle or policy” to prevent recovery of damages reflecting the loss suffered “as a result of the curtailment of life expectancy” caused by the former employers’ negligence.
In conclusion, the Court stated that, “It is reasonably foreseeable that a curtailment of life may lead to a diminution in the value of a litigation claim and, if a claimant has such a claim, the wrong-doer must take the victim as he finds him … It must have been foreseeable to this defendant that the claimant would have dependency rights which would be diminished as a result of their negligence.”
The Health and Safety Executive (HSE) have estimated there are at least 4,700 asbestos disease related deaths and at least 2,000 cases of mesothelioma diagnosed every year in the UK.