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Apr 24, 2017

Asbestos Exposure: Was the Defendant Increasing Or Contributing To Risk of Mesothelioma?

 
 
 

Denial of any responsibility is often the first response when an asbestosis lawyer traces the former employer of a mesothelioma claimant. Subsequently, a defendant may dispute their share of the liability based on exactly identifying the extent of the employee’s exposure to asbestos, and the degree to which it contributed to causing the mesothelioma.

In a number of cases, an elderly victim may only have 2 – 6 months to live following a confirmed diagnosis, and is desperately anxious to see the financial future of the spouse and any dependants secured. Often, an early out of court settlement can be reached. Tragically, however, time may run out before a claim can be resolved, and it is left to the family to continue seeking justice in the courts.

In a number of mesothelioma claims, a defendant employer would often dispute that the cause of a former employer’s mesothelioma was the direct result of exposure to asbestos at the defendant’s specific workplace and therefore, would deny liability.

Defendant should be liable to pay damages for the proportion of the risk

The success of a claim can often depend on showing ‘on the balance of probabilities’ that it was likely that developing mesothelioma was due to a level exposure to asbestos during the period when the claimant was employed at the company compared to any exposure levels at any other workplaces during an entire lifetime.

If a claimant could not prove a contribution to the damage by each defendant, only that each defendant had increased the risk of the claimant contracting the disease, each defendant should therefore, be only liable to pay damages for the proportion of the risk of contracting mesothelioma they had created.

In one recent case, a claimant was successively employed by each of six defendants, and it was agreed that “on the balance of probabilities”, that he would not have developed the terminal disease if he had not been occupationally exposed to the deadly fibre dust.

In this type of case, the proof would be based on a “balance of probabilities” that each employer’s wrongdoing had materially increased the risk of the employee developing mesothelioma was to be treated as proof that each employer had materially contributed to the disease.

Defence will contest the level of contribution to the victim’s mesothelioma

Throughout the peak period of Britain’s asbestos use during the 1960s and 1970s, it was common for men to be employed throughout their working lives in industries where they could be exposed to asbestos for extended regular periods at different companies and locations.

It was also not unusual throughout this period for there to be little or no asbestos awareness to the long term health risks. In nearly all cases, former workers recall that there was no safety information, protective equipment or clothing provided by employers.

Nevertheless, when more than one former employer is traced and brought to account, a defence will contest the level of contribution to the victim’s mesothelioma, which was caused as a direct result of exposure to asbestos at a specific work location.

An added challenge is the original periods of exposure could be several decades earlier. Almost always, there is a period of between 15 to 50 years, which can elapse from when the asbestos fibres were first inhaled to the appearance of asbestosis symptoms.

In the case of the victim and the six different employers, it was agreed that exposure to asbestos during his working life could be calculated to show that the defendants were each responsible for slightly over 35 per cent of the exposure. Although it could not be established at which workplace the exposure eventually triggered the cell changes and resulted in the development of the fatal disease.

A proportion of the agreed compensation based upon the total increased risk

In circumstances, where it cannot be precisely established where and when the original exposure occurred, it has been previously ruled by the House of Lords that, “the causing of a material increase in the risk of injury would suffice” and “all the relevant employers could be liable” and anyone could be pursued for compensation.

Provisions in the Compensation Act 2006 established “joint and several” liability, whereby, in relevant circumstances, a claimant may claim full compensation from, “any relevant employer” who may then claim back contributions from other employers who are also liable.

Even when a claimant’s mesothelioma is shown to be caused by negligent exposure to asbestos fibre dust at all of the defendants workplaces, it may still be judged that the claimant should only recover a proportion of the agreed compensation based upon the total increased risk likely to have been caused by all defendants, and which led to the victim’s mesothelioma.

The judge awarded damages against each defendant in proportion to the increase in risk for which it was responsible. The claimant received the slightly over 35 per cent of the full compensation amount, which was contested at the Court of Appeal.

However, the Appeal was dismissed on the grounds that there was a key difference between making a material contribution to an injury and materially increasing the risk of an injury. The judge said it was not possible to conclude that any or all of the defendants had made a material contribution to the development of the disease although they all had materially contributed to the risk.

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