Latest News

 
 
 
Dec 4, 2017

Mesothelioma Claims: Negligence And What A Reasonable Person Would Have Done

 
 
 

It’s always a shock. The results of the tests come through, which show quite clearly the advanced stages of mesothelioma cancer or asbestos related lung cancer. The victim, often in their 70s or 80s – but increasingly, aged in their 60s or even younger – may only have less than a year to live. Sadly, the victim will pass away a few months or even weeks following a confirmed diagnosis.

The family need to find answers and it’s the task of an asbestosis lawyer to help bring closure by seeking justice in the courts. It can be a daunting prospect, especially if the questions are over how and where exposure to asbestos occurred up to 40 or more years earlier. Often a victim will be able to clearly pinpoint when exposures occurred in one or more workplaces over their lifetime, At the same time they sadly admit their own innocence and lack of asbestos awareness at the time to the long term deadly health risks.

Bringing a former employer to account is not necessarily difficult. Making a mesothlioma claim for damages in the civil courts is based on determining the employer’s negligence or breach of statutory duty. Time and time again, it can be shown that an employer failed to supply any form of personal protection to those who worked with or near asbestos nor provided health warnings. Consequently, in a number of cases, the defendant will decide to quickly settle out of court to minimise adverse publicity and further costs.

Exposed to asbestos by more than one employer

However, complications can arise where a victim was negligently exposed to asbestos by more than one employer at different workplaces, and the actual source of fibre exposure that caused the condition to develop cannot be established – even on the “balance of probabilities”. This means that if a person is exposed on more than one occasion, and by more than one employer, it may not be possible to determine which exposure caused the disease.

In this specific circumstance, any one employer could be pursued for full compensation. However, a court may find an exception to the rule that, on the balance of probabilities, the defendant’s conduct must have caused the damage. In these circumstances, the causing of a material increase in the risk of injury would be sufficient and full damages could be recovered from any one or more defendants. Alternatively, all the relevant employers could be liable and requires an apportioning of liability and compensation.

In order for a claim for negligence to be successful, it must be shown that there was a breach of a duty of care based on the level of care required to be taken in a specific circumstance. The manner in which the employer defendant did or did not exercise reasonable care in any particular case will vary, accordingly. Each case is judged individually, and the court will consider what a reasonable person should have done in the circumstances.

Damage caused as a consequence of a breach to the duty of care

A defendant may dispute that the breach of care and level of exposure directly led to the victim’s development of an asbestos-related disease. An asbestosis lawyer will need to provide sufficient evidence that actual injury / damage was caused as a consequence of a breach to the duty of care and was not so unforeseeable or too remote to the employer.

To provide sufficient evidence of a former employer’s breach of their duty of care, a victim’s statement will also require further support. A family will need to call upon former work colleagues to give their account of conditions at the time, the extent to which asbestos was present and directly affected all those working with or near the fibre materials.

A victim or their family has three years to enter a claim from when their asbestosis symptoms first appeared or the date the mesothelioma is diagnosed.

Post a comment
Your email will not be published, nor will it be harvested. Items marked with a * are required