Victims of exposure to asbestos in more than one workplace can be faced with a court having to determine the proportion of each of their former employer’s liability in a mesothelioma claim. Widespread industrial and commercial use of asbestos fibres in the production of insulation and fireproofing products from the 1950s to the late 1970s and early 80s made it more likely for workers to be occupationally exposed to asbestos-containing materials. The Office of National Statistics (ONS) reveal that between 1968 and 2013 the number of mesothelioma deaths of men aged between 50 and 70 increased by 25 per cent.
It can sometimes be the case that a claimant was employed at a number of different companies during their working life. Those former employers or insurers who can be traced will often vigorously deny any liability or argue there was insufficient exposure at their workplace to be responsible for leading to the victims condition many years later. As a result, it can appear more of a challenge to calculate just how much the claimant was exposed to asbestos each time, and the level of contribution towards causing the victim’s mesothelioma or another asbestosis disease.
Risk does not reduce over time
A former employer or insurer will invariably try to dismiss their level of liability, for example, because mesothelioma was diagnosed 30 or 40 years after the victim worked at their company. However, research shows that the risk of developing an asbestos-related disease does not reduce over time but remains dormant – known as the “latency period” – between 15 to 50 years before asbestosis symptoms first appear. The results of one recent European study indicate that victims exposed to asbestos four decades ago were more than two-and-a-half times as likely to develop mesothelioma as those whose last exposure was just 5 years ago.
The law requires that a person suffering injury must show “on the balance of probabilities” that the defendant’s “negligence” caused the injury or condition, without which, the claimant would not have suffered the damage. However, if exposure is only partly due to the defendant’s negligence then they will be liable to the extent that their breach of duty “materially contributed to the disease.”
“Indivisible disease” materially increases the risk
Mesothelioma is often described by an asbestosis lawyer as an “indivisible disease”. This is a legal term which means that it cannot be exactly determined from a number of defendants, who was directly responsible for exposing the claimant to asbestos, and as a consequence, had led to the victim’s mesothelioma.
Medical practitioners also cannot prove whether exposure at a particular defendant’s workplace had caused mesothelioma. They may state that exposure would have “materially increased the risk” and “any exposure above a minimal level will have materially increased the risk” so that that defendant can be held responsible.
Normally, when trying to determine the extent to which a claimant was exposed at each defendant’s workplace to harmful substances, dusts, gases or other materials, the court will often focus on the ‘cumulative’ exposure, which was the cause and/or contributed. A percentage only of the claim will be recovered when not all of the defendants, including insurers, can be found liable. However, in a mesothelioma claim case, the approach is different because the disease is recognised as being “indivisible”, and there is no known threshold of asbestos exposure, below which, mesothelioma cannot occur.
As a result, court may conclude that it was sufficient for the claimant to show that a negligent exposure had materially increased the risk of developing the disease.
Determine whether the defendant should have taken particular steps
As part of The Compensation Act 2006, the “Mesothelioma damages” amendment, Section 3(1) states that where (1) a person has negligently or in breach of statutory duty exposed the victim to asbestos and (2) the victim has contracted mesothelioma as a result of exposure to asbestos, but (3) it is not possible to determine with certainty whether it was this or another exposure which caused the disease and (4) the person in question is liable… “whether by reason of having materially increased a risk or for any other reason.”
The Act also refers to the “Deterrent effect of potential liability” when a claim is to considered for negligence or breach of statutory duty. The courts will try to determine whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise). The actions would be with regard as to whether a requirement to take those steps might:
- Prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
- Discourage persons from undertaking functions in connection with a desirable activity.
Divisible disease – every defendant will have contributed
Asbestosis and pleural thickening cases are said, in law, to be “divisible diseases”, i.e. every defendant who has exposed a claimant to asbestos will have contributed to the asbestosis or pleural thickening. However, the contribution will be linked to the extent of asbestos to which the claimant was exposed at each defendant’s workplace. The emphasis will be on ‘cumulative’ exposure which has been the cause and/or contributed to each of the diseases. A claimant may recover a certain percentage only of the claim when not all of the defendants – including insurers – can be found liable or found.