From the moment when a diagnosis of mesothelioma or an asbestos-related cancer is confirmed, the clock will be ticking for the victim and their family. In many cases, the victim is most likely to be a male aged around 70 and upwards. However, in recent years, a number of victims, both male and female were aged in their 50s and 60s.
Whatever the age, in nearly all cases, a marked deterioration in health from a full and active life will be rapid as the asbestosis symptoms progress. With time running out, the decision to seek justice from former employers can seem daunting and may inevitably need to be continued by the family after the victim has passed away. The time remaining following a diagnosis is usually between 2 – 12 months but can be longer in individual cases.
In a bid to obtain mesothelioma compensation as early as possible in the time remaining to the victim, a specialist asbestosis lawyer will aim to secure an out of court settlement. To succeed at making a civil claim for compensation for exposure to asbestos during their employment, a claimant must first prove employer negligence. When a case is to be heard in court then an admission of liability from a former employer will depend on showing evidence of negligence supported by a number of factors to determine an employer’s breach of duty of care to their employees.
Breach of duty based upon on the level of care required
At the outset, a defendant must be shown to have owed a duty of care to the claimant. A court will consider whether it was “reasonably foreseeable” that the conduct of the defendant would cause injury /damage to the claimant. Secondly, if there was a relationship of “proximity” or closeness between the two parties. The court will then look at whether the circumstances were “fair, just and reasonable” for the law to impose “a duty with a given scope” upon one party for the benefit of the other.
Once the above elements have been satisfactorily established by the court, it then must be shown that there was a breach of duty based upon on the level of care required to be taken and if that standard had been carried out. It will mean that a court will need to decide “what a reasonable person should have done in the circumstances”.
To define what exactly “reasonable care” is in any particular case will vary according to the circumstances but the court must find that “actual injury / damage was caused as a result of the breach of the duty to take care” and that the injury / damage to the particular claimant “must not be so unforeseeable as to be too remote a consequence of the breach of duty.”
Court will need to hear the circumstances of a particular standard of care
This area of law has evolved largely through a series of previous court judgments and the court will need to hear the circumstances of a particular standard of care, the liability of any party, and to consider the individual factors, including:
- Dangers of the particular activity
- Risks and foreseeability of the damage occurring
- Whether adequate steps were taken to prevent the incident
- Extent of the consequences and the effect of a finding of negligence.
A defendant employer can often dispute that asbestos was even present in their workplace. Even when it can be shown beyond reasonable doubt that asbestos was in use, it may still be argued that the cause of a former employer’s mesothelioma was not the direct result of exposure at the defendant’s specific workplace.
However, a court can decide that the employer was negligent in his duty of care because of the lack of any adequate protection provided to employees working in circumstances where asbestos materials were present. By the early 1970s, the growing asbestos awareness to the long term health dangers revealed by medical research led to further government legislation and the start of the decline of asbestos imports.
Statutory duty upon employers to ensure that all employees were protected
The introduction of The Asbestos Regulations 1969 now placed a statutory duty upon employers to ensure that all employees were protected from the dangers of working with asbestos at their workplace. It was intended to apply to every type of workplace and process, which used either asbestos or asbestos containing materials. The risk of exposure to asbestos dust was to be minimised as far as reasonably possible by the use of ventilation, protective equipment and clothing, and the introduction of improved handling procedures.
This was followed by The Health & Safety at Work Act 1974, which required employers to “conduct their work in such a way that their employees will not be exposed to health and safety risks” and to also “provide information” on potential risks to health and safety at their workplace.
Victims admit they were completely innocent of the dangers they faced
Despite the legislation, a recurring theme in asbestos exposure victim statements tends to suggest the clear lack of any duty of care shown by company employers. We repeatedly hear that neither a face mask nor any other type of protective equipment was supplied. Many victims now admit they were completely innocent of the dangers they faced when working with or around asbestos materials. Yet they were not provided with any health or safety information about asbestos by their employers.
A victim or their family may need to call upon former work colleagues to give their account of conditions at the time, the extent to which asbestos was present and affected everyday routines. A former employer’s decision to make an out of court settlement could be based on one or more of the above factors as determining a likely court outcome.