Occupational and environmental exposure to asbestos - what is the approach of the courts?
In a recent case the
Court of Appeal has again shown how far it is prepared to go to
allow claims brought by those suffering from mesothelioma caused by
exposure to asbestos.
Enid Costello died of
mesothelioma in January 2006 at the age of 74. She had lived and
worked in Ellesmere Port and had been exposed to asbestos dust from
time to time in the factory where she worked.
The judge found that her
employers had been negligent in exposing her to dust. He also
decided that, in common with all the other inhabitants of Ellesmere
Port, she had been exposed to a low level of asbestos in the
general atmosphere. The reality is that most of us are exposed to
some asbestos in the environment, especially in industrialised
areas. In fact, the judge decided that she had probably been
exposed to more asbestos in the general atmosphere than at
work.
The problem facing the
court was that it is impossible for medical science to determine
whether Mrs Costello had developed mesothelioma as a result of her
work or simply because she lived in Ellesmere Port. The claim
failed. Allowing the appeal, the Court of Appeal awarded
compensation to Mrs Costello’s estate on the basis that the
asbestos to which she had been exposed at work had increased the
risk of her suffering from mesothelioma.
At the beginning of November the Health and
Safety Executive launched its “Asbestos – the Hidden Killer”
awareness campaign, a stark reminder of the effects of asbestos. It
highlights a number of sad stories of workers and their families
whose lives have been devastated by the cancer mesothelioma, caused
by a variety of different jobs including work as joiners, plumbers
and electricians.
The latest figures show
that the number of deaths from mesothelioma is continuing to rise
and will reach a peak within the next 10 years. The total annual
number of deaths has risen from 153 in 1968 to 2156 in 2007.
Mesothelioma, a terminal
cancer, most commonly affects the pleura (the lining around the
lung). It can also affect the peritoneum (the lining of the
abdominal cavity) and less commonly the pericardium (the lining
around the heart). Inhalation of asbestos is by far the most common
known cause of mesothelioma. The risk increases depending upon the
amount of asbestos to which a person has been exposed.
It is common for symptoms not
to develop for 30 to 40 years (or even more) from the time of
exposure. This can often present real problems when seeking
compensation. The injured person may simply not be aware that they
have been exposed to asbestos or have difficulty in remembering
where they have been exposed. Added to this is the fact that very
often the employer no longer exists and that it is difficult, if
not impossible, to trace the employer’s insurers at the time when
the exposure to asbestos took place. Unlike a road traffic accident
where a person can receive compensation if the other driver is
uninsured or can’t be traced, there is no “fund of last resort”
where an employer or its insurers cannot be traced.
As the number of deaths
from mesothelioma continues to rise, there will undoubtedly be an
increasing number of people who have been exposed to relatively
small amounts of asbestos. It is clear that, as a matter of public
policy, the courts will where possible award compensation to
mesothelioma sufferers and their families.
Links: www.hse.gov.uk/asbestos/hiddenkiller/index.htm