Asbestos was widely used as a building material between the 1940s and 1970s due to its strength, flexibility and insulating properties. However, according to the Health & Safety Executive, asbestos exposure is now the greatest cause of work-related deaths, with mortality rates from mesothelioma (a type of lung cancer caused by asbestos exposure), expected to peak in 2016. By about 2050, approximately 91,000 deaths are predicted.
Mesothelioma is caused by the inhalation of asbestos fibres and leads to a rapid decline in health, intense pain and suffering for the victim, and life expectancy of between 6 to 12 months. However, the long incubation period means that exposure to asbestos could have occurred 30 or 40 years ago. One of the difficulties of pursuing a damages claim is that with the exposure occurring so many years ago, past employers may have gone out of business or be untraceable and relevant insurance policies can be difficult to track down.
The landmark case of Chandler v Cape Plc (2011) made legal history, when for the first time a parent manufacturing company was held jointly liable with its subsidiary to compensate a claimant. The claimant, Mr Chandler, was employed to stack and load bricks at Cape Building Products Limited, a subsidiary of the defendant company, Cape Plc, between 1952 and 1962. In the course of his job he was exposed to dust generated by the manufacture of asbestos products and he was diagnosed with asbestosis in 2007. However, by this time the subsidiary company had long since ceased to exist and there was no insurance policy in place to indemnify against claims for asbestosis.
The High Court considered whether the defendant parent company had a duty of care to the claimant, which involved applying a three stage test to ascertain whether the damage was reasonably foreseeable, if a relationship of proximity existed between the parties and whether it was fair, just and reasonable for the law to impose a duty.
On the facts of the particular case, the defendant had actual knowledge of the claimant’s working conditions and it would have been foreseeable that he could have contracted an asbestos related disease, as the dangers of asbestos were known at the time. There was a sufficient degree of proximity because the defendant retained overall responsibility for ensuring that its own employees and those of its subsidiary companies were protected from health and safety risks. The danger of a life threatening illness from asbestos exposure was known in the late 1950s and the court felt it was also fair, just and reasonable to impose a duty of care. The defendant was found jointly and severally liable with its subsidiary to pay the claimant provisional damages of £120,000.
Is this likely to lead to a flood of claims? The answer is that this is unlikely, because many asbestos and mesothelioma charities report that the victims of this harrowing disease are too ill and defeated to think about pursuing claims. However, for those victims or their relatives who do wish to pursue claims, this recent decision means that there is now a better chance of securing compensation for victims who have developed a horrific disease through no fault of their own.
For further advice contact Nadina Edmondson on 01245 453728 or email nadina.edmondson@birkettong.co.uk
