How much exposure to asbestos will a court accept towards a victim’s asbestosis claim or mesothelioma compensation? If exposure occurred at more than one workplace during a claimant’s working life, the degree of ‘material contribution’ towards exposure at the workplace involved in the claim is then calculated.
In a recent case, it was argued that the claimant experienced only “minimal” exposure at one workplace, which made no “discernible difference” to the development of his subsequent asbestosis. The victim, a former electrician now in his late 80s, was employed at four different companies during his career, which began in the 1950s. The claimant was at the workplace in question at the latter end of his working life, between 1980 and 1994, where he was employed in the boiler room.
Asbestos was widely used to line boilers and insulate hot water pipework
It is well documented that during the main period of use, between the 1940s and the mid 1980s, asbestos was widely used in all types of public buildings and private premises to line the boilers and insulate the outside of hot water pipework. Electricians, plumbers and other maintenance staff would regularly work in boiler rooms and corridors directly replacing the asbestos lagging, which quickly breaks down from wear and tear.
The fibre debris would drop and litter the floor, and particle dust rise and remain suspended in the atmosphere, which was easily inhaled. Despite of the growing asbestos awareness to the long term health risks by the time asbestos was first banned in the mid 1980s, employers often failed to provide any protective equipment or safety information.
The former electrician said in his statement that he did experience exposure to airborne asbestos dust during his time working in the boiler room. However, the evidence pointed to exposure having mostly occurred during the early part of his career at previous workplaces.
Defendant admitted that exposure was material
According to the calculations presented at court, exposure at all four workplaces produced a lifetime “dose” of 51.26 fibre/ml-yr (fibre millilitres per year), of which, only 2.3 per cent (1.25 fibre/ml-yr) was attributable to his employment at the defendant’s workplace in the 1980s. Most of the exposure (97 per cent or 49.2 fibre/ml-yr) could be traced to his employment in the 1950s.
At the court of Appeal, the defendant admitted that a 2-3 per cent exposure was material but also argued that such a small figure could not be judged as being anything more than “minimal exposure”. Consequently, the degree of exposure would “not have made a material contribution” to the development of the claimant’s asbestosis. The defendant also disputed that the level of exposure would have made any noticeable difference to the victim’s asbestosis condition.
The claimant was “slightly worse off as a result”
The court held that “…the severity of the disease had been increased by a small, albeit not measurable, extent. It is conceded that the increase was material, i.e. and not ‘minimal’ . In the judge’s view, this concession was critical and upheld the finding of the initial hearing that the claimant was “slightly worse off as a result of the 2.3 per cent exposure for which the defendant was responsible.” The judge added that his conclusion naturally followed from the defendant’s acceptance of the fact that they were responsible for the 2.3 per cent exposure – and that this was material.”
The defendant’s appeal was dismissed and was ordered by the court to pay the victim a sum of £1,552.50, i.e. 2.3 per cent of the overall award of £67,500.
Ruling seen as a ‘landmark’ decision
The success of a mesothelioma claim can often depend on showing ‘on the balance of probabilities’ that that mesothelioma or asbestosis disease was the result of a level exposure to asbestos during the period when the claimant was employed at the company when compared to exposure levels at other workplaces during an entire lifetime.
A claimant’s case is often challenged as the alleged original period of exposure often occurs up to 50 years earlier, which is the time it can take for the first asbestosis symptoms to emerge. The Appeal court ruling in the case of the former electrician has been seen as a ‘landmark’ decision, which could mean that future mesothelioma claims for even the most minimal levels of exposure to asbestos are considered eligible for contributory compensation from a former employer.