First published by Lawzone, 17 June 2004.
The Control of Asbestos at Work (CAW) Regulation 4 came into force on 21 May 2004. It introduces two fundamental concepts: the new “duty to manage asbestos”; and the definition of a “duty holder”. This regulation was introduced in the context of the increasing social and economic cost of the asbestos disease epidemic: the UK death toll from mesothelioma (an asbestos-related form of cancer that principally attacks the lining of the lungs), will top 2,000 per annum within 5–10 years and asbestos-related lung cancer may kill the same number again. It is now estimated that perhaps 250,000 people in Europe will die from asbestos related diseases before the epidemic is eventually spent in the middle of this century. It is estimated that by then the CAW regulations will have saved 5000 lives in the UK.
The particular risk of dying from mesothelioma (as opposed to another asbestos disease), following light or transient exposure to asbestos dust, was not widely known before 1965, when the Sunday Times publicised the risks in an article. This seminal piece ultimately led to the introduction of the Asbestos Regulations 1969, the banning of importation and use of blue and brown and (but only very recently), white asbestos. However, the risks of injury arising from other asbestos diseases have been known since much earlier. Some industries and employers, by virtue of their size and their familiarity with asbestos materials and products, have their own particular “dates of knowledge” which can be proven by reference to internal memoranda, specialist research papers and other documents.
In the case of Maguire v Harland and Wolff plc EWHC 577(QB), Mr Maguire was exposed to asbestos in his employment before the risks of mesothelioma were known. He worked in the shipbuilding industry for Harland and Wolff, which admitted it was in breach of a duty of care that was owed him. However, the case was brought not by him for his own injury but by his wife for hers.
Over the years that Mr Maguire worked at Harland and Wolff, he was exposed to asbestos. Each day his overalls became contaminated with asbestos dust and other dirt. Each week, like tens of thousands of others in manual trades, he took his overalls home to be washed by his wife. In those days, before washing machines were widely available, this involved Mrs Maguire coming into close physical contact with the dusty overalls. She would have come into contact with some asbestos dust in any event simply from her husband taking his overalls off and, perhaps, shaking them out at the back of the house. The fact that she developed mesothelioma is itself evidence that she was exposed to asbestos: the overalls were the only likely source. There was no doubt that this exposure made a material contribution to the risk of mesothelioma developing and, therefore, since the mesothelioma did in fact arise, this exposure made a material contribution to the injury.
The claimant could recover damages from her husband’s employer if she could prove she was exposed in breach of a duty owed by them to her.
Even if it had not been admitted, there would have been little difficulty in proving that Harland and Wolff owed a duty to its employee, the claimant’s husband. By the time of exposure the husband could have relied on a number of statutory provisions to establish liability if he had suffered injury. However, the claimant herself could not rely on those same provisions because they afforded protection to employees and she was not an employee of the defendant company.
Happily for the claimant there have been a number of cases where wives have recovered compensation following exposure to asbestos from their husband’s clothes.
After the Sunday Times’ 1965 article, it is scarcely contentious that an employer who exposes an employee to asbestos might owe a duty of care to a wider class of persons than just employees. After 1965, the known risk that minute exposures might cause fatal disease should cause the employer to reflect upon the possibility that asbestos contaminants might escape from the workplace and cause injury: employees’ wives and children should fall within the employer’s “reasonable contemplation” so that liability can be established at Common Law (as per Lord Atkins’ dictum in Donoghue v Stevenson). That is not to say that it would always be a straightforward matter to prove that any such duty had been breached.
Mrs Maguire’s exposure occurred before Harland and Wolff knew, or should have known, that mesothelioma existed, let alone that it could have been caused by exposure to minute amounts of asbestos. Despite this difficulty Mrs Maguire succeeded in her claim. Morland J’s findings of fact show how far we have come in the last 40 years. He found, not simply that the claimant had been exposed to asbestos sufficient to cause mesothelioma, but also that:
“During the early 1960s the defendants would not need prophetic vision to foresee that their employees’ wives, in the position of the claimant, would be exposed to considerable quantities of asbestos dust each working day when their husbands returned home from work,…”
The Judge expanded upon his use of the term “considerable quantities” when he then adopted the statutory term “substantial”:
“…or that such wives would be exposed to substantial quantities of asbestos dust when brushing down, shaking and washing their husbands’ clothing.”
Asbestos disease claimants are continually amazed to learn that the Government began issuing warnings about the dangers of using asbestos, not in the twentieth century, but in the 1890s. Indeed, as Morland J stated in Maguire:
“ At that time [in the early 1960s] the attendant risks of serious injury to health from asbestos…were well known. In those circumstances, a reasonably prudent employer would have considered the risk posed by secondary exposure.”
Acknowledging not the state of contemporary knowledge but the utter lack of any “safety culture” in those industries, he said such risk of serious injury to health were well known but were ignored by shipbuilders, such as the defendants.
As a society we are now paying for the disregard for safety in the past. It has taken a century of hard work by claimants and their legal and trade union representatives to bring them to book. This pressure by litigation and by campaign led more and more employers to take out Employer’s Liability Insurance protection many years before the Employers’ Liability (Compulsory Insurance) Act 1969 rendered such cover obligatory. The absence of fully effective cover in past decades still causes problems for those bringing claims today.
In Phillips v Syndicate 992 Gunner the claimant widow was awarded damages in a fatal mesothelioma case. The defendant was ordered to pay damages in full. The defendant was insolvent and insurers had been traced for only part of the period of exposure. The insurer paid damages in proportion to its time on risk. In seeking the balance of the award, Mrs Phillips issued proceedings against the insurance syndicate under the Third Parties (Rights Against Insurers) Act. The court accepted the claimant’s case that the insurer was liable in full, following Fairchild, and ordered the insurer to pay the full amount of damages without any deduction for periods of non-insurance.
Both the Phillips and Maguire cases dealt with claims arising from mesothelioma caused by asbestos exposure. The leading case of Fairchild v Glenhaven Funeral Services Ltd [House of Lords 2002] established that justice between injured employees and employers who expose employees to a risk of injury which then ensues is best achieved by fixing liability for full damages upon any single employer who has by their negligent act or omission made a material contribution to the risk of injury. Where there is more than one negligent employer the claimant can recover damages in full from any single employer and leave the employers to seek contributions from one another (if they are still trading and/or insured) under the Civil Liability (Contribution) Act 1978. But the House of Lords did not hear argument as to whether they could or should make an order for contributions between defendants in any particular action or between defendant employers and other employers who had not been included in the proceedings In addition, the House of Lords did not consider how to approach any periods of exposure in self-employment. These areas have recently been examined by the Court of Appeal in the case of Barker.
In Barker v Saint Gobain Pipes, the widow of a mesothelioma victim was awarded over £150,000 compensation following the death of her 57 year old husband. The Defendants appealed and argued that Mr Barker was not an ‘innocent victim’, (a principle developed in the Fairchild case by the House of Lords), because although he had been exposed to asbestos when he was employed at a steelworks and when he was employed as a pipe lagger, he had also been exposed to asbestos as a self-employed plasterer. Whereas in the Fairchild case it was found that an employee who has contracted mesothelioma due to asbestos exposure by multiple employers could obtain full-compensation from any one of them, in Barker it was argued that the victim’s own contributory negligence affected his status as an ‘innocent victim’. Therefore, the court was asked to consider whether the claimant could recover anything at all and (if so) whether (and how) blame should be apportioned. In May of this year the Court of Appeal said there was no need to apportion damages in this case, and that exposure arising during the deceased’s self-employment could be dealt with by means of a deduction for contributory negligence.
At the time of writing it is expected that the defendants will lodge an application to the House of Lords for permission to Appeal. It may be some weeks before we learn whether their Lordships will underscore Fairchild by refusing permission or will hear the Appeal and modify the Fairchild principle in some way.
It is to be hoped that the Control of Asbestos at Work Regulations will substantially reduce the number of people who might otherwise be exposed to asbestos at work and go on to die from mesothelioma. For many, though, it is too late. They may already be suffering the effects of the disease; it may be growing silently inside them; it may be lying dormant for years or decades to come before symptoms arise. By then perhaps medicine will have progressed so as to offer some improvement in the length or quality of life. By then perhaps the law will have settled to the point that those unfortunate victims can be told with certainty who will be found liable to compensate them and their families for inflicting such grievous injury.
For further information, please contact Andrew Morgan.
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