Dealing with it asbestos you can
With statistical research predicting an approximate annual death toll of 2,450 deaths this year alone, the devastating and far-reaching consequences of asbestos exposure are clear. With 1st September 2015 being National Asbestos Awareness Day, this article seeks to examine civil claims in relation to asbestos related diseases within the employer-employee context, given that many asbestos related injuries involve historic employment experiences.
Asbestos is a term attributable to a collective of six different fibrous materials that occur naturally in the environment; such substances include amosite, chrysotile, crocidolite, tremolite, actinolite and anthophylite. As asbestos minerals have long, strong, flexible fibres that are fire and heat resistant, it has typically been used in the manufacture of yarn, cloth and building materials, the latter of which are comprised of insulating material, corrugated roofing and cement wall tiles.
Exposure to asbestos occurs in a variety of ways. Disturbance or damage to asbestos can result in fibres being freed which, if inhaled, can lead to an array of diseases. Lung and throat cancers, asbestosis and non-malignant pleural diseases are some of the main diseases associated with the inhalation of asbestos fibres. Additionally, mesothelioma – a form of cancer – is another disease caused by the release of asbestos particles. Unlike other ailments, mesothelioma can be caused by the release of a single asbestos fibre. Such conditions take approximately 15 to 60 years to become apparent and diagnosable following an individual’s exposure to asbestos.
A plethora of legislation has been developed to regulate the use, removal and management of asbestos; central to this has been the Control of Asbestos Regulations 2012 (SI 2012/632). This sets out a number of duties on the employer, such as the duty to manage asbestos in non-domestic premises as well as to inform, instruct and train employees, amongst many other regulations. Defendants charged with a breach of the CAR 2012 regulations, can cite a defence that they took all reasonable steps and exercised all due diligence to avoid such a breach. Failure to comply with these regulations constitutes a criminal offence and, as such, is beyond the scope of this article.
Regarding a civil claim, under the Limitation Act 1980 a claimant may bring a claim in the three years following the date on which they become aware that a claim can be made. Given the latency period for asbestos-related diseases, this is usually from the date the asbestos-related disease is diagnosed or when the claimant could have reasonably started to explore the possibility of making a claim.
With respect to any asbestos induced disease, a claimant must prove, on the balance of probabilities, the following:
The defendant owed him a duty; The defendant breached such duty; and As a result of the breach the claimant suffered an injury.
Based on the above listed factors, an employer-employee relationship carries a sufficient degree of proximity between the parties to impose on an employer a duty of case, this is as noted in Caparo v Dickman. Alternatively, a defendant can also be liable for negligently exposing an individual to asbestos. Despite knowledge of the perilous effects of asbestos being well-documented from the mid-60s forwards, it is necessary to ascertain what the employer knew, or ought to have known, of the dangers of exposing an employee to asbestos. The employer must balance the risk in terms of the potential for an injury to occur and the consequences of such an injury against the efficacy, expense and difficulties of implementing safeguards. Stokes v Guest, Keen and Nettlefold outline the following key points to consider in any claim:
The court will not consider an employer to have fallen foul of the standard expected of a reasonable and prudent employer if he followed a recognised practice. This is subject to the exception of the practice followed being in itself poor; An employer must keep up-to-date with developing knowledge concerning asbestos and must apply such knowledge to their workplace in an efficient manner; The employer is not able to rely on a defence that they were not aware of the harm that may be caused as a result of exposing an employee to asbestos; An employer is not able to cite a defence that their industry was, generally speaking, unaware of the risks of asbestos exposure without further information about the general state of knowledge available being advanced.
Given the time lapse between exposure to asbestos and a related disease becoming unearthed, it is likely that possible defendants could become insolvent, uninsured or they may have ceased trading; this clearly impacts on the damages available to victims. In assessing damages, a distinction must be drawn between diseases such as asbestosis and lung cancer compared to mesothelioma. In the former category, where the claimant has been exposed to asbestos over the course of several different job roles and varying employers, the courts rely on the principle of proportionate liability. Consequently, damages are apportioned against all potential tortfeasors in accordance with the dose of asbestos for which they are responsible. This is assessed by the duration and level of exposure to asbestos caused by each employer. Comparatively speaking, as mesothelioma can be caused by a single instance of exposure to asbestos, a defendant employer can be liable for a claimant’s ‘single exposure’ to asbestos, as per the ruling in Fairchild v Glenhaven Funeral Services Ltd. Section 3 of The Compensation Act 2006 reversed the dictum of Barker v Corus by allowing a claimant the right to seek full compensation from any potential defendant liable in negligence of breach of the above listed statutory duty for having exposed them to asbestos. It is then for the defendant to pursue the other likely defendants for a contribution towards the damages. Thus, the common test for causation is the ‘but-for’ test. However, in relation to mesothelioma cases, the claimant solely needs to prove that that particular defendant materially increased the risk of the injury, as here each potential defendant is jointly and severally liable.
With regard to contributory negligence, it is worth noting that the court can order a reduction to a claimant’s damages as a result of their smoking, or their exposing themselves to asbestos whilst self-employed.