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Nov 14, 2017

Why New Mesothelioma Claims May Be Decided By 50 Year Old Industrial Data

 
 
 

Over the years, when a mesothelioma victim brings their claim to court, the exact level of exposure has been an all-important factor in determining an award of mesothelioma compensation. Calculating the precise levels has been both detailed and complex. Along with their families, victims – with often little more than 6 months left to live after a confirmed diagnosis – could find the process daunting. Today, it is broadly understood and more widely accepted that there are “no safe levels of asbestos exposure”, even if an official response may often state the opposite.

Much of the confusion or misunderstanding can be traced back half a century to ‘historical’ legislation introduced for very specific purposes at the time. The link between exposure to asbestos and the development of asbestosis illnesses and disease had been known about since the 1920s, which eventually led to the Asbestos Industry Regulations 1931, but just covered the main asbestos manufacturing processes.

However, the introduction of the Asbestos Regulations 1969, which were brought in under The Factories Act 1961, aimed to provide the first “quantitive” control levels of exposure to asbestos in the workplace. The regulations applied to every process, which used either asbestos or an asbestos-containing materials (ACM), and also sought to minimise exposure to asbestos dust through the use of exhaust ventilation, protective equipment and clothing, and the introduction of safer handling methods.

Thresholds were set for exposure to asbestos within industrial premises

To determine at what point a level of exposure was acceptable, the 1969 regulations would need to refer to the Factory Inspectorate Technical Data Notice 13 (TDN13), established to provide ‘standards for asbestos dust concentration’. The data was intended to provide a working guideline threshold for levels of asbestos exposure “liable to cause danger to health” for the purposes of enforcement under the provisions of the 1969 Asbestos Regulations.

In other words, thresholds were set for exposure to asbestos within industrial premises during the peak period of use during the 1960s and 1970s. Following the first asbestos ban on the most toxic blue and brown fibres in the mid 1980s, use of the mineral as an insulator and material strengthener declined. Nevertheless, in the decades since, the numbers of mesothelioma victims continued to rise, more than doubling from 1,000 in 1980 to 2,500 every year. (Health and Safety Executive – HSE, 2016).

Even as intensive industrial asbestos use dropped – asbestos imports fell from around 150,000 tons in the 1970s to around 15,000 tons by the end of the 1980s – studies continued to reveal the extent and impact of low level exposure, in particular, in non-occupational settings, such as schools, hospitals, and other public buildings where asbestos was present. Both the HSE and the professional construction industry continue to warn that no building constructed or renovated up to 2000, following the ban on white asbestos, can be guaranteed safe from asbestos. Today, an estimated 80 per cent of school buildings have asbestos present, as well as other local authority owned public premises, such as sports and leisure centres, town halls and swimming baths.

Mesothelioma can occur in cases with low asbestos exposure

In May 2011, HM Government Office for Science responded to an enquiry into white asbestos risk and a possible change of law with the following, “ …it is not possible to determine a threshold level below which exposure could be deemed ‘safe’ for human health. On the evidence available there is no justification for an imminent change to the international scientific consensus on the classification of chrysotile as a Class 1 carcinogen.”

Despite of the above official conclusion and the growing weight of new and updated research evidence, asbestosis lawyers could find that court decisions may still rely on guidance data and legislation created to help decide when to proceed with a prosecution as opposed to a civil liability. In 2014, an update report on the 1997 Helsinki Agreement, “for the diagnosis and attribution” of asbestos, among an international group of experts concluded that:

  • Mesothelioma can occur in cases with low asbestos exposure.
  • Even a brief or low-level exposure should be considered sufficient for mesothelioma to be designated as occupationally related.
  • Around 80 per cent of mesothelioma patients have had some occupational exposure to asbestos.

Not a month passes when there is not a report of a teacher exposed to airborne dust released from asbestos in the fabric of the building, or a maintenance fitter who worked everyday next to asbestos lagged pipework. There are also reports of mesothelioma diagnosed when the source of the exposure at work cannot be easily identified.

Today, a court will also consider that “on the balance of probabilities” it was likely that a victim’s mesothelioma was caused due to exposure to asbestos during the period when the claimant was employed at a company. A positive outcome for the victim can be based on showing that an employer failed to provide adequate and protection to their workforce, which would have minimised the risk of breathing in asbestos fibre dust.

A decision can also be in accordance with the Health & Safety at Work Act 1974, which requires employers to “conduct their work in such a way that their employees will not be exposed to health and safety risks” but to also “provide information” about their workplace, which might affect their health and safety.

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