Judith Gledhill. The Safety & Health Practitioner. Volume 19, Issue 5. May 2001.
There can be few things more devastating for an individual or their family than to be advised that he or she is suffering from malignant mesothelioma. This dreaded disease, mainly caused by asbestos exposure, is a malignant tumour of the pleura or peritoneum, for which there is currently no known cure. From diagnosis, death can occur in a matter of weeks or months. In rare cases an individual may survive a year, or longer.
This scenario is a long way from events in industry at the turn of the 20th Century. At that time, asbestos was being hailed as a lifesaver, in view of its perceived magical properties of heat retention and fire prevention. Use of asbestos increased significantly in the shipbuilding, railway and construction industries. Components were manufactured in their thousands for use in cars, in the construction of domestic and commercial properties, and throughout industry in general.
As the use of asbestos increased, so did the number of workers coming into contact with it. Many started to exhibit chest problems which were frequently put down to tuberculosis, or other diseases. Knowledge began to grow about the inherent dangers of workers being exposed to and inhaling asbestos dust. It became clear that many injuries could be caused by asbestos exposure (see panel of potential injuries, overleaf).
When can asbestos compensation be claimed?
To make a successful claim for compensation, an injured person (the claimant) must establish that:
- S/he is suffering from an asbestos-related disease;
- S/he was exposed to asbestos by those s/he is claiming against (the defendants);
- The defendants were negligent, or in breach of their statutory duty towards him/her;
- The defendants should reasonably have foreseen that the exposure to asbestos was likely to cause injury; and
- The claimant’s exposure to asbestos when s/he was employed by the defendants gave rise to a material contribution to the development of the disease.
Negligence must be established against what was known about the risks of asbestos at the time. What is reasonably foreseeable today may not have been foreseeable in the 1930s, ’40s and ’50s.
Knowledge of the Danger
Concern had been raised about the potentially hazardous nature of asbestos dust as long ago as 1898, when mention was made in the Annual Report of the Chief Inspector of Factories and Workshops of the “evil effects of asbestos dust.”
The publication of the Merryweather and Price report in 1930 was a major landmark in the understanding of the dangers imposed by the inhalation of asbestos dust. This report concluded that the inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis of the lung. The report highlighted that there had been reported cases of fibrosis of the lung after exposure to asbestos of between 12 and 15 months. It concluded that asbestos fibrosis of the lungs could lead to complete disablement and death. In a covering letter to the report, the Chief Inspector of Factories stated that the remedy was “the suppression of dust.” Although there was reference in the report to “certain low and high limits” of dust, these were undefined and the inability to define the limits of exposure to dust was apparent in the report’s summary and recommendations.
As a result of this report, the Asbestos Industry Regulations 1931 were enacted. Arguments have been put forward that the Asbestos Industry Regulations 1931 were only applicable to the asbestos industry itself. However, in a recent Court of Appeal decision Dawson v. Cherry Tree Machine Company Limited and Shell Tankers Limited, the Court of Appeal concluded that the Asbestos Industry Regulations 1931 applied to industry in general where the processes described in the Regulations were carried out.
So, as early as the 1930s it was being recognised that it was not only high concentrations of asbestos dust over a lengthy period of time that could give rise to injury. Merryweather and Price, in their report, stressed that working in a high concentration of asbestos dust over a comparatively short period would inevitably lead to the development of profound fibrosis. There was no level which was regarded as safe. The aim of the Factory Inspectorate, following the Merryweather and Price report, was that dust should be suppressed as far as is practicable.
In 1931, provision for compensation for either disablement or death caused by asbestosis was contained in the Asbestos Industry Scheme. The Scheme applied to workmen employed in specified processes. So, by the early 1930s a correlation between the occurrence of asbestosis and the exposure of employed persons to asbestos dust was proved.
Section 47 of the Factories Act 1937 provided that in every factory where any dust or fume, or any substantial quantities of dust of any kind, is given off to such an extent as to be likely to be injurious or offensive to the persons employed, all practicable measures shall be taken to protect the persons employed against the inhalation of the dust. Where the nature of the process made it practicable, exhaust appliances had to be provided to prevent dust entering the air of the workroom.
The view of the factory inspectors by the late 1930s was clearly expressed in the 1938 Annual Report of the Chief Inspector. In a section written by the Senior Medical Officer it was stated: “It is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous.”
By 1955, a paper published by Richard Doll made it clear that in the presence of lung fibrosis there was a significantly increased risk of the development of lung cancer. So, by the mid-1950s it was recognised that the inhalation of asbestos dust could cause asbestosis, thickening of the lining of the lung, and lung cancer.
Research, however, was ongoing into the emergence of a different type of cancer: mesothelioma. Initially, research was undertaken in South Africa, from where a significant amount of asbestos was mined. Many of the miners and individuals living close to the mines were found to be suffering from mesothelioma. In 1960, a landmark paper by Wagner was published which identified the relationship between mesothelioma and exposure to asbestos dust. In 1965, a paper by Newhouse and Thompson was published reporting the link between asbestos exposure and the development of mesothelioma. For the first time, it began to be appreciated that slight or minimal exposure to asbestos dust could kill.
The Asbestos Regulations 1969 came into force in May 1970. There are also the Asbestos (Licensing) Regulations 1983, the Control of Asbestos at Work Regulations 1987, The Control of Asbestos in Air Regulations 1990 and the Asbestos (Prohibitions) Regulations 1992. The Regulations lay down stringent codes, which, if followed, effectively prevent any asbestos exposure at all.
Many injured people suffering from mesothelioma, or asbestos-related problems today were exposed to asbestos dust in the 1930s, ’40s, ’50s and ’60s. In order to claim compensation, they have to prove that defendants should reasonably have foreseen that the exposure to asbestos was liable to cause injury. The knowledge of a defendant is the knowledge which the defendant should have had at the time of employment.
The test of an employer’s duty of care, where knowledge about a particular risk is developing, is set out by Swanwick J in the case of Stokes v. Guest: “The overall test is still the conduct of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he ought to know … where there is developing knowledge, he must keep reasonably abreast of it and not be slow to apply it; and where he has in fact been graced with an average knowledge of the risks he may be obliged to take more than the standard precautions. He must weigh up the risks in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it, and the expense and inconvenience they involve. If found to have fallen below the standard to be properly expected of a reasonably prudent employer, he is negligent.”
The question is, therefore, should a defendant have been aware of the dangers connected with exposure to asbestos dust in the 1930s, ’40s, ’50s and early ’60s? From the above it is clear that in the 1930s, ’40s and early ’50s a link had been established between exposure to substantial and regular asbestos dust and the development of asbestosis, thickening of the lining of the lung and lung cancer. For mesothelioma, if exposure was in the 1930s, ’40s, ’50s or early ’60s, a claimant does not have to show that the defendant was aware of the risks of mesothelioma but must prove that the defendants should have foreseen a risk of some pulmonary injury (Margerison v. Roberts ).
How much exposure to asbestos dust would give rise to a foreseeable risk of pulmonary injury in the 1930s, ’40s, ’50s and early ’60s? In Gun v. Wallsend Slipway & Engineering Company Limited, Waterhouse J accepted that (until 1960) the known hazard associated with exposure to asbestos was asbestosis, in the form of lung fibrosis, which is quite different from mesothelioma and is attributed to heavy and prolonged exposure. He went on to say that: “None of the Annual Reports of the Chief Inspector … to the end of 1965 drew attention adequately, or at all to any risk of injury from asbestos to an employee from light or intermittent exposure to asbestos dust …”
On the other hand Buxton J in Owen v. IMI Yorkshire Coppertube concluded: “I find that a reasonably informed employer would have been aware from at least 1949 that care should be taken with asbestos; that he would have known from the middle of the 1950s that exposure to asbestos should be kept at the lowest possible level; and from 1965 he should have known that there was a new and uncertain hazard, in the shape of mesothelioma, that made reduction in exposure levels imperative.”
Buxton J went on to say that: “From the start of Mr Owen’s employment (September 1951) the difficulties relating to and the threats posed by asbestos were sufficiently well known, and sufficiently uncertain in their extent and effects for employers to be under a duty to reduce exposure to the greatest extent possible.”
In the case of Jemmson and Dawson v. Shell Tankers UK Limited and the Cherry Tree Machine Company Limited, Judge R G Macheli QC (upholding the claimants case) stated that: “A reasonable employer, being necessarily ignorant of any future potential asbestos exposure, cannot safely assume that there will never be sufficient cumulative exposure.” The judge found that: “The exposures, or potential exposures (to asbestos dust), albeit relatively brief, were substantial and regular.” The defendants appealed but the Court of Appeal upheld Judge Machell’s findings and, dismissing their appeal, stated that: “There is no reassurance to be found in the literature that the level of exposure found by the Judge in this case was safe, and much to suggest that it might well not be so.”
Until 1965, or thereabouts, it is accordingly important for a claimant to establish that exposure to asbestos dust with a particular defendant had been more than “limited, intermittent or occasional.” Although the exposure to dust may have been brief the claimant must prove that the exposure was substantial.
Until recently, if a claimant succeeded in establishing liability against a defendant, it was only necessary for the claimant to prove that the negligence of a defendant gave rise to a material contribution to the development of the disease. In the case of Holtby v. Brigham & Cowan (Hull) Limited the defendants successfully argued that each defendant should only be liable to the extent that their exposure of the claimant to asbestos dust contributed to the claimant’s disability. The claimant appealed, alleging that as long as he could prove that the exposure to dust with each defendant gave rise to a material contribution to the injury, he could succeed in full against each defendant. The Court of Appeal upheld the finding at first instance and confirmed that a defendant is only liable to a claimant to the extent that their negligence contributed to the damage.
The decision in Holtby has placed claimants at a disadvantage. In many instances, claimants are unable to trace employers who have long since gone out of business. Unless an insurance company can be found, a claimant will not be able to satisfy a judgment, or obtain compensation. The Holtby decision has resulted in many claimants being denied full compensation.
The Holtby case only applies where the damage to the lungs is cumulative. Medical opinion currently suggests that asbestosis is a dose-related condition. It increases in severity with greater exposure to dust. Similar medical arguments have been put forward by defendants in respect of claims for compensation for pleural thickening and pleural plaques.
Mesothelioma cases are distinguishable, however, in that mesothelioma is only dose-related in so far as greater exposure to dust may increase the risk of development of mesothelioma. The more asbestos fibres in the lung, the greater the chance that one of those fibres will cause changes in the cell structure, resulting in a normal cell becoming a malignant cell. It is impossible, however, to ascertain whether a single fibre of asbestos is more or less likely to have caused the disease, or whether more than one fibre is more or less likely to have caused it. In the case of Wix v. Wilton Cobley Limited, Rudd J found that mesothelioma is not a divisible injury and as such a claimant could recover in full from a defendant who has put the claimant to material risk of contracting mesothelioma. As mesothelioma cannot be divided, a claimant should be able to recover in full against any defendant who materially contributed to the risk of damage.
However, Mr Justice Curtis, in the case of Fairchild v. Glenhaven Funeral Services and others, found that, as the claimant had been employed by more than one defendant and as the claimant could not prove which defendant’s asbestos fibre had caused the mesothelioma, the claimant’s case should fail. That decision is subject to appeal and is due to be heard shortly by the Court of Appeal.
Scientists believe that 250,000 men will die from mesothelioma in Western Europe between 1995 and 2029. Studies reveal that the highest risk will be suffered by men born around 1945 to 1950, of whom about one in 150 will die of mesothelioma. In addition, there will be significant numbers of deaths from asbestos-related lung cancer.
Although there has been a decline in cases concerning asbestos manufacturing workers and laggers, there has been an increase in cases involving persons exposed in the construction industries, manufacturing factories, power stations and ship yards.
Notwithstanding the dangers associated with inhalation of asbestos dust, the United Kingdom only banned the importation of white asbestos (Chrysotile) on 24 November 1999. It has taken more than 100 years to secure a complete ban on the importation of asbestos from the date when reservations were first expressed about the dangerous nature of asbestos.
Many injured people suffering from mesothelioma or asbestos-related problems today were exposed to asbestos dust in the 1930s, ’40s, ’50s and ’60s. In order to claim compensation, they have to prove that defendants should reasonably have foreseen that the exposure to asbestos was liable to cause injury. The knowledge of a defendant is the knowledge which the defendant should have had at the time of employment.