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Nov 13, 2017

Female Victims of Secondary Asbestos Exposure “Discriminated Against” By Compensation Scheme

 
 
 

Will victims of “secondary” exposure to asbestos be provided with financial help through the Diffuse Mesothelioma Payment Scheme? It’s an issue increasingly voiced in press and media reports. The government is also being called upon to consider extending eligibility to this particular group of victims, who are most often the wives or daughters of men who were in daily contact with asbestos materials.

Victims of secondary exposure who attempt to pursue a civil mesothelioma compensation claim from a former employer have traditionally encountered difficulties simply because the claimant was not directly exposed to asbestos at the defendant’s workplace. A further complication is the 15 to 50 years or more, which passes before the first mesothelioma or asbestosis symptoms may appear. Defendants can be reluctant or simply refuse to accept liability for any negligence, which indirectly led to the secondary exposure to asbestos fibres.

Nevertheless, it is established in law that a family member who suffers with mesothelioma can succeed in claims against a former company where the claimant is able to show that the employer should have known it was foreseeable that their employee would go home with asbestos on their clothes. In addition, there is also provision for employers to take a little longer to understand that family members of workmen exposed to asbestos were also at risk.

However, what happens if a mesothelioma or asbestosis victim finds there is a difficulty in trying to trace a former employer? It can be often be the case that after 30- 40 years the original business is either no longer trading or has been taken over by a different company. Tragically, a victim in their 70s or 80s may only have a short time left to live following a confirmed diagnosis, often less than six months.

Victims of secondary exposure excluded

Every year, around 3,500 mesothelioma victims are unable to trace their original employer or insurer. The Diffuse Mesothelioma Payment Scheme (DMPS) was introduced in July 2014 with the aim of providing a fast track solution and over 95 per cent of eligible applicants are paid within six weeks. However, the scheme only applies to those diagnosed with the fatal cancer after 25th July 2012. Sufferers of asbestosis disease, such as pleural thickening, are also excluded as well as victims of secondary exposure, many of whom are female.

Calls for the government to allow female victims of secondary exposure to be eligible for applying to the DMPS argue that woman are “disproportionately” affected and, therefore, are being discriminated against as a result of their inability to seek compensation through the scheme.

In the last decade, both “environmental” and “secondary” exposure has caused the deaths of around 1,200 female mesothelioma victims. Earlier research has also found there has been a threefold increase in the overall female death-rate of those aged below 65 since 1970.

In 2013, a report by the Health and Safety Executive (HSE) “tracing mesothelioma mortality between 1968 and 2011 found that fatality rates in the 45-54 and 55-64 age groups, “have not reduced as strongly in women as in men.” Recently published HSE figures suggest that there could as many as 400 female mesothelioma fatalities caused by asbestos exposure every year. A significant majority is likely to be attributable to secondary exposure, with individual cases now increasingly reported.

Asbestos-contaminated work clothes

It should not be forgotten that up until the most toxic brown and blue asbestos types were banned in the mid 1980s, there was a prevailing absence of asbestos awareness across much of British industry to the deadly health risks of exposure to the airborne fibre dust. It was common practice for asbestos-contaminated work clothes and boots to be brought home to be cleaned, and often the hair would be covered in dust too.

In many workplaces, there was little in the way of protective equipment or breathing masks and often no provision for men to wash or shower. Every day over a period of years, men returned home with their overalls / work clothes, from which their wives or daughters would first vigorously “shake out the dust” before washing the items by hand. The airborne dust particles could also be inhaled when brushed off from work boots or from combing out hair.

The 2nd Annual Review of the Diffuse Mesothelioma Payment Scheme (DMPS), which was published by the DWP in November 2016, concludes with several changes made to the scheme in 2015/16, including the introduction of a “further review mechanism prior to approving payments to successful claimants”. Tragically, some of the hundreds of female victims of secondary exposure may not live to hear from the next annual review if there is to be news which would have given them hope.

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