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May 2, 2018

Mesothelioma Claims: Employer’s Duty of Care Where Asbestos Is Known To be Present

 
 
 

Mesothelioma victims have often found their claim for mesothelioma compensation can be robustly challenged by an employer defendant on a technicality. The verdict of the judge is not only crucial in these instances but it can also lead to a series of appeals, which further explores the grounds for a particular mesothelioma claim and set a precedent for settling future similar claims.

In one recent case, the family of a deceased female victim instructed asbestosis lawyers to pursue an action after she alleged being directly exposed to asbestos dust at her workplace. The exposure was said to have occurred over a 6 year period when the victim was involved in hand-threading wiring through electric blankets believed to have been lined with asbestos.

“Reasonably foreseeable” that defendant’s conduct would cause damage

A victim of mesothelioma may be able to make a claim for compensation in the civil courts based on the employer’s negligence or breach of statutory duty. For a negligence claim to be successful, it must be shown that an employer owed a duty of care, and whether it was “reasonably foreseeable” that the conduct of the defendant would cause damage to the claimant. The damage must not be so unforeseeable as to be too remote a consequence of the breach of duty.

There must also be a breach of the duty of care as demonstrated by “how much care is required to be taken” and whether that level was provided. The court will consider what a “reasonable person” should have done in the circumstances, which will vary accordingly. Each case, however, is decided on its own facts and a victim will need legal advice for their specific claim.

Judge satisfied that a sufficient quantity of dust was present

At the hearing of the female deceased, the court was unable to find evidence that asbestos was present in the lining of the blankets, but the judge looked at the employer’s liability as determined by laws at the time. There was a requirement for a ‘substantial’ quantity of dust to be present, for which, once again evidence could not be found. However, the judge was satisfied that a sufficient quantity of dust was present “as to be likely to be injurious or offensive to the persons employed.”

The court also found that the employer should have known at the time when the victim was employed that asbestos used at their factory could be highly dangerous and dust exposure should have been prevented. According to the judge, it did not matter whether any level or quantities of dust present was asbestos, but in a factory known to be working with the known harmful material, the presence of any dust in the air should have been sufficient to alert an employer’s duty of care to safeguard the workforce from exposure.

In other words, employers are legally responsible to ensure they prevent, or to minimise as it is reasonably practicable, the likelihood of any exposure to asbestos dust. Increasingly, the view of the courts is that arguments over the level of asbestos dust exposure sufficient to later trigger the development of an asbestos-related condition should not prevent sufferers from their right to receive compensation.

Exposure is understood in circumstances where asbestos is known to be present

In another case, the Supreme Court settled a claim where the defendant argued that they could only be held liable if it could be proved they were responsible for causing an exposure, which had at least ‘doubled the risk’ of mesothelioma. All seven of the judges who heard the case held that the test for awarding compensation should remain as the “material contribution” of the exposure.

It’s another example where sufficient occupational exposure is understood in circumstances where asbestos is known to be present in the workplace rather than arguing over dust levels, which could deny a claimant their full damages.

In May 2011, HM Government Office for Science said that it was “not possible to determine a threshold level”, below which, exposure to white asbestos could be considered safe for human health or change the classification as a Class 1 cancer-causing agent. In the same year, the UK was repeatedly called upon to comply with guidance set out by the European Asbestos Directive, which addresses the issue of “sporadic and low intensity exposure to asbestos” rather than simply “measuring the extent of exposure and risk.”

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