An Appeal Court has ordered mesothelioma compensation to be paid to a former heating engineer by his last employer despite their claim that any asbestos exposure was “minimal” and was not in breach of their duty. Under the Health and Safety at Work etc Act 1974, “employers have a duty to their employees to provide a safe-working environment in a ‘reasonably practicable’ manner”.

Plumbers and heating system engineers come into contact with asbestos more frequently than nearly all other tradesman – an average of 140 times per year, or nearly three times a week, according to the Health and Safety Executive (HSE). In October 2014, the HSE released survey figures which showed that 20 tradesmen, on average, die every week as a result of asbestosis related diseases, including the incurable mesothelioma cancer.

Continuously exposed to asbestos

The former heating engineer, now 85 years old, had been regularly exposed to asbestos throughout his working life at different companies. However, it was between 1981 and 1995 when he was working for his last employers that the terminally ill engineer claims he was continuously exposed to asbestos. According to his statement, he was exposed to clouds of asbestos dust on “nearly every job” when removing asbestos from pipes and replacing with lagging prepared by mixing in a bucket and applying to the pipes – all carried out by hand.

The growing asbestos awareness to the fatal heath risks of continuous exposure and accumulation of breathed-in fibre dust particles had seen a reduction in imports by the late 1970s and the first ban on the most dangerous fibre types in the mid 1980s. Continued use of white asbestos after the mid 1980s in the building industry meant that around 25,000 tons were still being imported every year during that same period. However, even at this stage, there were still many asbestos using industry workers who were not issued with masks or any form of personal protection equipment.

Diagnosis twenty years after retirement

The claimant said in his statement that he only became aware of the dangers of working with asbestos when alternatives to asbestos-based insulation were introduced as a result of the changes in the law during the latter years of his employment. A diagnosis of mesothelioma was only confirmed in July 2014, some twenty years after retirement. It is well known that the first asbestosis symptoms may only appear between fifteen to fifty years after a period of exposure.

Historically, most cases of mesothelioma are the result of exposures that occurred prior to 1980. However, over the past fifteen to twenty years, there have been increasing reports of both men and women diagnosed with mesothelioma in their late fifties or early sixties. As in the present case, there are a rising number of asbestosis claims from men who began working at firms after the 1980s where they could still be at risk of exposure to asbestos.

Original decision supported “significant exposure” evidence

At the initial court hearing, the company denied they were responsible for exposing  the claimant to asbestos, arguing that, even if exposure had occurred at their premises, “it was minimal and it was not in breach of duty”. The success of a mesothelioma claim can often depend on showing ‘on the balance of probabilities’ that it was likely that an employee’s mesothelioma was caused by exposure to asbestos during the period when the claimant was employed at the company.

At the Appeal Court, the judge upheld the original verdict, saying that “Quite often the truth on a matter of fact lies somewhere between the extremes of both parties” referring directly to the claimant’s ‘daily’ exposure and the company’s defence of ‘no or minimal exposure’. The Judge could “see nothing wrong” with the original decision that the former heating engineer’s evidence supported a conclusion of significant exposure”. The company’s appeal was dismissed, and the claimant will receive an initial five figure sum with more to follow.

Crucial in providing the necessary treatments and care

An award of interim damages is often crucial in providing the necessary treatments and palliative care to help a spouse and close family improve the quality of a patient’s life in the time remaining.

The Health & Safety Executive (HSE) have previously reported that while around one in 170 of all British men born in the 1940s will die of mesothelioma, one in 40 of all male cancer deaths are under 80 years of age. Analyses of British mesothelioma deaths based on last recorded occupation suggest that former construction workers, particularly plumbers, electricians, heating & air-condition engineers and carpenters are at the highest risk.