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Mar 7, 2018

Mesothelioma Claims: Showing Employer Negligence Breached a Duty of Care


Most if not all enquiries we receive following a confirmed diagnosis of mesothelioma or a suspected exposure to asbestos are concerned with finding answers and holding those responsible to account. Obtaining closure, and a sense that rightful justice has been served, tend to be the main reasons for victims and their families deciding to proceed with a mesothelioma claim.

It’s also true that the majority of victims are aged 75 and above, and mesothelioma compensation is often urgently needed to pay for immediate specialist treatment, care and equipment. Sadly, the life expectancy for a victim aged in their 80s or 90s is often less than one year. There are also circumstances following the discovery of pleural thickening or pleural plaques where treatment may be needed at a later date if an onset of mesothelioma is triggered. In other cases, the loss of a loved one will have an impact on the financial security of the spouse in the longer term.

Not unusual for an employer to simply deny the existence of any asbestos

The decision to take civil action can be daunting for individual victims and their families, especially if they have doubts over whether a former employer can still be found. Further difficulties can be encountered if an employer and / or their insurers maintain that they are not liable. Success in a civil action for injury / damage claimed to be caused by exposure to asbestos while at specific workplace, requires a victim to show an employer was negligent and breached a duty of care owed to their employees.

However, it’s not unusual for a defendant employer at the outset to simply deny the existence of any asbestos at their workplace. A victim or their family will then have to call upon former work colleagues to give their account of conditions at the time, if asbestos was present and the extent to which their everyday routines were affected by working with or near to asbestos materials. Time and time again, the courts will hear that an employer failed to supply any personal protective equipment, such as a breathing mask or provided any health warnings directly related to the dangers of asbestos fibre dust.

Level of asbestos present, or where it was situated, was of minimal risk to employees

Even when it can be shown beyond reasonable doubt that asbestos was present, it may still be argued that the cause of a former employee’s mesothelioma was not the direct result of exposure at the employer defendant’s workplace. Another argument often presented is that the level of asbestos present, or where it was situated, was of minimal risk to employees. The same response is often claimed when quantities of asbestos are regularly found today in school buildings, local council premises and public amenities.

The defence knows that a claimant has to show that ‘on the balance of probabilities’ their mesothelioma or asbestosis disease was the result of a level of exposure to asbestos during the period when employed at the company. It can therefore be argued that the degree of exposure would “not have made a material contribution” to the development of the claimant’s mesothelioma or another asbestos-related condition.

Employer’s failure to provide protective equipment

However, each court will decide on the facts of each particular case as to whether exposure would be considered significant enough to be taken into account. The simple fact of an employer’s failure to provide protective equipment to prevent or minimise the health risk from potential exposure may be taken as evidence of an employer’s negligence to take “reasonable care”, which can determine the outcome of a claim.

To define what exactly “reasonable care” is in any particular case will vary according to the circumstances but the court must find that “actual injury / damage was caused as a result of the breach of the duty to take care” and that the injury / damage to the particular claimant “must not be so unforeseeable as to be too remote a consequence of the breach of duty.”

Employer may agree to accept an out-of-court settlement within about four months

Since the introduction of The Health & Safety at Work Act 1974, all employers are required to “conduct their work in such a way that employees will not be exposed to health and safety risks” and to also “provide information” on potential risks to health and safety at their workplace.

As a result, an employer may agree to accept an out-of-court settlement within about four months. The aim of an asbestosis lawyer is to seek the best possible resolution as quickly as possible, especially for an elderly claimant and their family within the time remaining.

Today, the Control of Asbestos Regulations 2012 (under The Health & Safety at Work Act 1974) is in place to protect workers and others from the risks of exposure to asbestos by implementing  requirements such as, Directive 2009/148/EC relating to exposure to asbestos at work and 2003/18/EC aimed at strengthening protection for maintenance workers.

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