The success of a mesothelioma claim can often depend on showing the court that, “on the balance of probabilities”, it was likely that the claimant’s mesothelioma was due to a certain level exposure to asbestos during the period of time they were employed at a company. In one recent case, a mesothelioma victim was exposed to asbestos whilst employed at two separate workplaces over a period of 40 years, from the mid-1950s to the early 1990s.
Settlements can often be reached between several former employers who agree to award a proportion of damages to a claimant. Nevertheless, a defendant employer will vigorously contest their liability, based on identifying the specific cause of an asbestos-related disease amongst several workplaces in a former employee’s work history. They may also raise the issue of the length of time that has lapsed between original exposure and the appearance of asbestosis symptoms. The defendant may simply dispute that any exposure after the first few years would be unlikely to eventually lead to developing mesothelioma.
However, research consistently shows that all asbestos exposure at any time in a victim’s life can cause mesothelioma.
Ripping away the old linings nearly two inches thick
The court heard that the victim, an electrical engineer, was employed for ten years from the mid-1950s installing and repairing electrical equipment, wiring and cabling at a chemicals manufacturer based in County Durham, in the north east. Although not directly working with asbestos, he was regularly exposed whilst carrying out his repairs.
As is heard regularly in court, he would be required to work close to pipework lagged with asbestos as well as often climbing over to access cables and wires. In addition, he would often be working right next to other maintenance men who would regularly replace worn and disintegrating asbestos by ripping away the old linings nearly two inches thick then mixing raw asbestos cement powder in buckets before applying to the surface of the pipes.
Working next to men whose work caused him to be exposed
The claimant recalls that he could not help but breathe in the airborne asbestos dust caused by both working so close to the pipes and during the asbestos replacement work. The lack of a health and safety culture which was prevalent throughout much of British industry at this time meant that the victim was not supplied with any protection, such as a breathing mask.
Protection for employees had improved slightly during the time the victim was employed at the second workplace from the 1960s through to the early 1990s. The Asbestos Regulations 1969, aimed to control the levels of exposure to asbestos in workplaces and The Health & Safety at Work Act 1974, required employers to conduct their work in such a way that their employees will not be exposed to health and safety risks. The introduction of The Control of Asbestos at Work Regulations 1987 applied to all work activities directly involving asbestos.
However, despite not directly handling asbestos, once again he would find himself working next to men whose work caused him to be exposed to asbestos dust. Nearly 25 years later, the former electrical engineer was diagnosed with mesothelioma, which the results of a specialist medical examination concluded were connected to the victim’s past history of exposure to asbestos in the workplace.
Levels of contributory exposure
Often a former employer will try to reduce their liability by denying the levels of contributory exposure to a victim’s mesothelioma at their workplace, compared to any exposure levels at any other workplaces during the victim’s lifetime. The impact of an exposure which came later at a different workplace could also be denied by the second employer arguing that it would be unlikely to eventually lead to developing mesothelioma.
Claimants have always faced a significant difficulty in establishing one or more former employers’ liability for preventing or minimising the potential health risk of exposure, which eventually leads to the terminal cancer. An exceptionally long period of time of between 15 to 50 years or more may pass before the first symptoms appear.
In the present case, an interim payment was received by the widow of the victim and a further amount relating to the claim was also agreed.
Risk of developing mesothelioma after exposure never reduces
Recent studies continue to challenge the idea that recent exposures to asbestos are unlikely to contribute to causing mesothelioma. A report published by an international academy of 180 scientists from 35 countries and experts in environmental and occupational health, clearly state that the risk of malignant mesothelioma is related to “cumulative” exposure to asbestos, i.e. all exposures, early as well as late, contribute to a total risk of developing mesothelioma.
Another study which included 862 mesothelioma cases from more than 22,000 individual exposures across Europe, and as far afield as Australia, suggest that the risk of developing mesothelioma after an initial exposure never reduces, regardless of life expectancy.
The ongoing research may also suggest why a steady number of mesothelioma patients continue to be diagnosed since asbestos was first banned just over thirty years ago. More than 2,540 people now lose their lives to mesothelioma every year – up by more than 10 per cent since 2011 – according to the latest available figures from Health & Safety Executive (HSE) Annual Report, 2014.
However, the research also means that mesothelioma victims and their families should increasingly expect to see a more favourable outcome when claiming damages from former employers, no matter when exposure to asbestos occurred.