Utter shock and disbelief are all too often the response to medical test results confirming mesothelioma – the fatal cancer of the lung linings caused by exposure to asbestos. More than 30 years after asbestos was first banned in the UK, a victim and their family will not only be devastated but can be completely mystified as to how exposure to asbestos occurred.

Tragically, non-occupational exposure to asbestos continues to equally claim the lives of men and women today. The Health and Safety Executive (HSE) have estimated that there are at least 8,000 work-related cancer deaths each year, more than half caused by past exposures to asbestos. However, in many cases, the attempt to find out “how” and “where” can be challenging.

Victims or their families who pursue a mesothelioma claim and seek answers in court, need to present the best case possible. It will not be enough to simply say that asbestos was present, either where the victim was working or where they were living. The law requires a claimant to prove, “on the balance of probabilities”, that it was exposure to asbestos and the negligence of a defendant in not protecting the victim against the risk.

Exposure occurred in several different ways

In one recent case, it was held that the victim (deceased) was not exposed to a sufficient level of asbestos and also unable to establish negligence or a breach of statutory duty by the defendant. The court heard that the victim – a council tenant – claimed exposure to asbestos occurred at his home during the period of his tenancy.

Throughout Britain’s peak period of asbestos use from the 1950s through to the early 1980s, millions of properties of all types, including local authority housing and council estate blocks were constructed with asbestos insulation. Not a month passes without a report of council house renovations or demolition where builders unexpectedly discover or are involved in the unsafe removal of asbestos materials, such as wall boards, boiler enclosures, texture sprayed ceiling and floor tiles.

In the present example, the victim claimed that his exposure occurred in several different ways, including the disturbance to asbestos during annual council redecoration and the installing of a new central heating system. It was further alleged that he was also regularly exposed when he accidentally brushed up against disintegrating asbestos in the toilet cistern and communal areas, and worn asbestos floor tiles.

Presence of asbestos alone was not enough

However, the court dismissed the claim. In his summing up, the judge said that the defendant did owe a duty to take reasonable steps to reduce the tenant’s exposure and to warn tenants against work, which carried a risk of disturbing asbestos materials. The defendant had been able to produce photographic evidence to show no disturbance or breach of the asbestos materials, and there was minimal risk as the renovations did not involve abrasive methods, which would have disturbed the asbestos and release sufficient level of airborne fibres.

The court held that the evidence presented showed that the just the presence of asbestos alone was not enough to prove that the victim was exposed to asbestos fibres above “background” levels – usually between 0.00001 to 0.0001 fibres per millilitre. Research shows that everyone can breathe in completely harmless low levels of asbestos every day.

Nevertheless, exposure to asbestos is the only known cause of mesothelioma, and the family are left still asking questions about how their loved one could develop the deadly disease, despite the court finding that the presence of asbestos at home was insufficient by itself. The case indicates that it is necessary to carefully investigate a claimant’s entire life and work history to establish all the likely sources of asbestos exposure in order to build a case with a better chance of success.