“How can I prove that it was my employer’s fault I was exposed to asbestos when the company no longer exists?” is often the first question asked when a victim or a family member decide they want to pursue a mesothelioma claim. The answer may not be so difficult than it first appears. The first task for an asbestosis lawyer is to trace a former employer and / or their insurers.
A key issue is the exceptional length of time that elapses from the initial period of exposure to the first appearance of asbestosis symptoms, most notably breathlessness and a persistent cough. The potential for mesothelioma cancer to develop can often lay dormant for 30 to 40 years or more.
During this time it ‘s always likely that the company where the victim was once employed no longer exists, or if it does, not in its original form. It may have been taken over and incorporated into another organisation. In some instances, a complex corporate structure may have evolved comprising subsidiaries and holding companies spread among a number of countries.
Working lives began in the 1960s and 70s
Many cases now involve claimants who began their working lives with a firm while in their teens or early twenties during the 1960s and 1970s. Industrial asbestos use in Britain was at its peak period with an average of 170,000 tons of asbestos being imported every year, although noticeably declining to around 10,000 tons by the early 1980s.
It was common practice for all types of buildings, but most particularly, commercial and industrial premises to be insulated with asbestos, including corrugated asbestos cement roofs and wallboard. One of the most widespread practices was the asbestos lagging of hot water pipes throughout an entire factory.
Before the mid 1980s, when the most dangerous brown and blue asbestos types were banned from use, it was rare for any employer to issue breathing masks or protective equipment to workers responsible for maintaining asbestos insulation. Even after the ban, thousands of men and women could still not be aware that they were working in close proximity to asbestos containing materials, and still without any form of breathing protection.
Company itself may have changed ownership
An employee might have stayed with a company for several years, during which time, they could have been continually and regularly exposed to asbestos. The company itself may have changed ownership on at least one or even two occasions and further changes to the business are, of course, likely to occur in the years after the employee has left or retired.
Once the former employer’s company has been tracked down, there is now the task of determining liability. The actual workplace where the exposures occurred is likely to be now categorised as a ‘subsidiary’ operating as a division of a parent company or holding group, but may also still retain a legal status, distinct from the overall, controlling company.
At court, the defendant employer may contest its liability to a former worker, disputing that they could have known – or should have known – of the potential health risks because they had no direct day-to-day control over its management beyond share ownership. In this instance, there could be a difficulty in establishing that the holding company owed a “duty of care” to the employees of its subsidiaries in order to bring a claim for negligence.
Sufficient “proximity” between employer and employee
For a claim of negligence to be successful, it must be established that a duty of care was owed by the defendant to the claimant, and also to be shown that this duty was breached. As a result, the claimant must demonstrate that actual damage, which must not be too remote a consequence of the breach of duty, was caused to the claimant.
While the defendant may claim that they could not foresee the damage that would be caused to an employee, where a duty of care is owed, there is likely to be sufficient “proximity” between the parties, and it is therefore, “fair, just and reasonable” that the law should impose a duty of responsibility upon the employer. A breach of duty holds that, “negligence is the omission to do something, which a reasonable person guided by considerations usually regulating the conduct of human affairs would do, or a reasonable person would not do.”
Every year, around 3,500 asbestos disease sufferers are unable to trace their original employer and / or insurer. Alternatively, they find that the company has been either dissolved or become part of an entirely different company. Since July 2014, the Diffuse Mesothelioma Scheme (DMPS) offers a “fund of last resort” for patients diagnosed with mesothelioma, but only after 25th July 2012.
One of its key aims is to speed up the process to resolve issues before victims pass away in long running disputes with former employers / and or insurers over determining liability or whether an insurance policy was in place at the time of the original exposure to asbestos. However, the hope is always that an out of court settlement can be reached to the satisfaction of all parties.