How much asbestos exposure to prove mesothelioma compensation case?
Mesothelioma is a cancer caused by asbestos. Unlike most asbestos related conditions such as pleural plaque, diffuse pleural plaque, and asbestosis, the cancer called mesothelioma can be caused without a good deal of exposure to asbestos. There is often a period of many years between exposure to asbestos and the diagnosis of mesothelioma. The law has wrestled with the proper principles to apply in such cases. A level of pragmatism has been applied as it is not always possible to look back 30 or 40 years and identify where the exposure to asbestos occurred, and the extent of that asbestos exposure. The law has been that when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a “material increase in risk” of the victim contracting the disease will be held to be jointly and severally liable for causing the disease. This means if you can identify at least one source of asbestos exposure you can recover full compensation from the organisation responsible for that exposure. Compensation may seem worthless when compared with the loss of life which is almost inevitable with mesothelioma, but in my experience leaving some financial security behind is often a great comfort.
Two recent cases were dealt with by our highest Court, the Supreme Court, in October 2010, with the judgment on 9 March 2011.
One case involved Mrs Diane Willmore who died at the age of 47. She was exposed to asbestos when a pupil at a school, Bowring Comprehensive, controlled by Knowsley Metropolitan Borough Council. The school was the only identified source of asbestos exposure. The other victim, Mrs Enid Costello, was a secretary at a factory which made steel drums. She had to go into the factory itself and there was often asbestos dust in the air. The appeal was brought by the Council and the factory owner, Greif (UK) Limited. Their argument was a clever one, based on the argument there is a risk of suffering mesothelioma due to asbestos in the environment. The argument says that asbestos has been very widely used, therefore within the general environment there is a risk of exposure to asbestos dust. How can you make us pay compensation when exposure could have been from 101 sources, but we are the only one identified? As I say a clever argument brought by the insurance companies who sit behind those held responsible for carelessly exposing victims to asbestos.
I have always thought the law is generous to those who suffer mesothelioma. There is also good sense, as mesothelioma does not have a number of causes, it only has one, and that is asbestos. Therefore the link between mesothelioma and asbestos is known, and then it is a question of identifying those who have carelessly exposed the victim to asbestos.
Those responsible for the careless exposure complain that they are ordered to pay compensation because there may be others who are just as responsible as them. You can see the arguments either way.
This case can be seen as another attempt by insurance companies to side step payment for risks for which they have already received premiums. The alternative insurance company position is that when we took these premiums, 30 or 40 years ago, we had no idea about the asbestos and its risks and consequences, so why should we pay out now. It is not difficult to see whose argument most people side with, and I suspect that may be the reason for the pragmatic approach of the Courts.
The finding in the case is that where mesothelioma is suffered it is necessary to show asbestos exposure, but not necessary to show the exposure caused more than a material increase in risk. It is not necessary to show statistically, or epidemiologically, that one exposure was greater than another. Pragmatic as I have already said, and a decision which recognises that when people were exposed to asbestos they were rarely aware of its existence, and had no knowledge of its danger.
Let me give you a rather silly example. Let’s just say that scientists proved that the flame from matches manufactured 40 years ago caused damage to the skin. Could you now tell me how often you struck a match in 1981. Did you strike the match, did someone else, can you identify who struck matches, and which manufacturer made each of the matches struck close to you. I said it was a silly example, but it does show the extent of proof insurance companies are demanding should be required in cases of mesothelioma.
Another important point is that one victim was a pupil at a school with asbestos in its fabric. The other was an employee, but not someone who worked with asbestos, but was in the environment where asbestos dust was present. There have been cases in the past brought by those who have lived close to premises where asbestos was used, and even cases of those who have handled and washed the work clothes of those working with asbestos. The insurance companies might well argue there is an environmental risk, but it is from this environment that mesothelioma will arise for years to come. As the law stands those exposed in this environment will be compensated if they can prove at least some of the sources of their asbestos exposure, and the mesothelioma caused.
The cases are called:
Sienkiewicz (Administratrix of the Estate of Enid Costello Deceased) (Respondent) v Greif (UK) Limited (Appellant)
Knowsley Metropolitan Borough Council (Appellant) v Willmore (Respondent)
and can be read in full by clicking here. There are some useful reports with more background detail at:
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