In a recent mesothelioma appeal case, the court ruled by a majority verdict that the “occupier” of a premises is responsible for all people who enter the site premises not just those who are directly employed by the site occupier, as set out by the Factories Act 1961.

Often another key challenge in a mesothelioma claim is for asbestosis lawyers to determine the exact period of time when the claimant was on site at a particular premises where the exposure to asbestos was said to have taken place.

Extent of liability contested

The difficulties are well-known. A period of between 15 to 50 years often elapses from the original time of exposure to the appearance of asbestosis symptoms and a confirmed diagnosis. In some cases, the original employer or site occupier may no longer be in business and the original insurer may also contest the extent of their liability, as indicated in the original policy.

A further complication may also be that the claimant’s work history shows employment in more than one workplace where exposure to asbestos may also have occurred. A significant number of cases relate to those individuals whose working life spanned the 1960s and 70s (and into the 80s), when asbestos use was widespread throughout UK engineering, manufacturing and building. Up until the first asbestos ban in 1985, in a majority of instances workers were likely to be exposed in any number of occupations where asbestos was still being used or otherwise present in the premises itself.

Difficulty in providing clear evidence

In a recent mesothelioma claim, it became apparent that there would be a difficulty in providing clear evidence of exactly where exposure(s) took place and the employer/insurers’ liability each time. It has been previously ruled by the House of Lords that, “all the relevant employers could be liable” and anyone could be pursued for compensation in circumstances, where it cannot be precisely established where and when the original exposure, which caused the mesothelioma, took place.

In one instance, there was an initial question over whether the insurers had provided cover for the particular year when the claimant, a carpenter and joiner, was employed at the firm, which was subsequently confirmed that they had provided cover.

“Foreseeable” exposures

At a second workplace, the premises “occupier” disputed their potential liability for the claimant’s asbestos exposure. It is sometimes assumed that occupiers are not liable for any asbestos exposure, which occurs during building renovations being carried out by the premises owner and their contractors. However, premises occupiers are also held to have responsibility, based on the extent of control they are able to exercise, which does make occupiers liable for “foreseeable” exposures to asbestos related to the subsequent development of mesothelioma.

In the third instance of a potential exposure at the end of the 1970s, the claimant was involved in building renovations where an asbestos survey had previously been carried out. However, no form of personal protection or breathing equipment had been supplied to the claimant. It has repeatedly been pointed out that during this period, there was often little or no asbestos awareness training, health and safety information or protection provided to employees who regularly handled asbestos materials in their workplace.

No safe threshold level of exposure

In all instances, the defendants argued that any exposure to asbestos was below the level where it could reasonably have been foreseen that the claimant would contract mesothelioma or suffer other harm. However, in 2011, the government stated that there was no confirmed threshold level, below which exposure to white asbestos is not a risk to human health and therefore, was to remain a Class 1 carcinogen.

Often, to avoid unwanted publicity, cases of liability and settlement can be resolved out of court even when it can be shown that exposure to asbestos occurred on more than one occasion and by more than one employer or in an occupier’s premises. While it may not be always possible to determine exactly from which workplace an exposure first caused mesothelioma, nevertheless, proving liability usually requires that the claimant must show that, on the balance of probabilities, it was the defendant’s ( employer or premises occupier) negligence or specific actions which caused the damage / injury.