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Jan 14, 2019

Asbestos Exposure Victims: Chances of Success Improving in Sympathetic Courts

 
 
 

Victims of asbestos exposure can often face a robust challenge to their asbestosis claim by former employers and their insurers. In more recent years, the courts have been seen to take a more sympathetic view of a victim diagnosed with terminal mesothelioma cancer or suffering another debilitating asbestosis disease.

In most cases, a victim and their families are simply trying to find answers as to how and why exposure to the deadly material was allowed to happen. The damages awarded will help to fund special treatments, care and equipment needed to look after the claimant in the time they have left.

Development of mesothelioma cancer just over ten years later

In one recent case, a victim was diagnosed with pleural plaques – rigid scarring lesions on the lung linings which reduces the ability of the lung to function – and which eventually led to the development of mesothelioma cancer just over ten years later. The victims diagnosis occurred just as the House of Lords ruled that the condition was no longer grounds for awarding damages because a claim of negligence requires an “essential proof of damage” to be established.

However a one-off lump sum payment of £5,000 was obtained under a 1-year Ministry of Justice scheme in 2010. The temporary measure was brought in for those individuals who had begun, but not resolved, a legal asbestosis claim in October 2007 for pleural plaques compensation. Tragically, by 2017, the victim had developed mesothelioma and a claim for compensation was begun with the hope of a settlement in the time remaining. There may only be a life expectancy of between 2 – 6 months after a confirmed diagnosis of a late stage mesothlioma.

In court, the former employer simply argued that there was insufficient exposure to asbestos to prove liability for the victims eventual mesothelioma cancer, which the judge found in their favour. Just three months later the victim lost his life to the fatal disease, aged 75.

Court more likely to accept asbestosis disease is “potentially progressive”

Former employer defendants will often present a number of different arguments in their defence, such as simply denying all knowledge and “foreseeability” that a worker would develop an asbestos-related disease, on average, up to 30 or 40 years later. Alternatively, the defendant will argue that the level of exposure was minimal or low risk and cannot be definitely linked as contributing towards a victims later development of the disease.

However, more recently, a court may be more likely to accept that an asbestosis disease – previously viewed as benign – is “potentially progressive”. Previously, the view was held that victims were only considered to be at an increased risk of developing an asbestos-related disease as a “direct result of their exposure to asbestos” rather than because of the “existence of asbestosis symptoms, themselves”. If a court adopts a more compassionate view, a claim may be successful if the effect upon a claimant can be medically identified before they were aware of any symptoms.

Presence of pleural plaques can have a debilitating impact

In 2014, a study was published, which clearly challenged the idea that the presence of pleural plaques could be considered benign. The research indicated that there was“ a small, but statistically significant mean difference” in the total amount of air exhaled during a forced breath and the amount exhaled in the second forced breath when compared to the performance of asbestos-exposed individuals “without plaques or other abnormalities”.

The findings were further clarified in July 2015 when the researchers explained that the statistically significant difference observed was a “2 – 4 per cent decrease in lung function…” In other words, the presence of pleural plaques can have a debilitating impact upon lung capacity.

Success in a claim for asbestosis compensation relies on showing the court that the claimant was “owed a duty of care” and that there had been “a breach of that duty”, which was a material cause (or a contributory cause) of the claimant’s resultant injury / condition.

Court will take into account the claimant’s working conditions

Many cases still involve men who were exposed to asbestos at their workplace during the 1960s, 70s and early 80s. The introduction of The Asbestos Regulations 1969 (under The Factories Act 1961) expanded the statutory duty of employers to ensure that all their workforce were to be protected from the dangers of working with asbestos. The 1969 regulations, which aimed at minimising exposure to asbestos dust, applied to every process using either asbestos or any article that contained asbestos.

Five years later, The Health & Safety at Work Act 1974 required employers to conduct their work in such a way that their employees would not be exposed to health and safety risks, and to provide information to others on the premises about how their workplace might affect health and safety.

While a former employer might argue that the level / amount of exposure was not enough to have caused and asbestos disease, today a court will take into account the claimant’s working conditions and consider whether adequate safety measures were in place at the time, as legally required of an employer.

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