Compensation for Asbestos Related Claims
Asbestos is a product which has historically been used in the construction, shipping and other manufacturing industries. Its damage to health is now well known. This article proposes to give a brief overview of the various types of asbestos related conditions and the circumstances when a sufferer of such conditions may claim compensation.
Types of Asbestos
There were essentially four types of asbestos commonly used in industry, namely:-
- “White” - chrysotile
- “Brown” - amosite
- “Blue” - crocidolite
- “Amthophylite” - similar to brown asbestos but rarely used commercially
Research over the years has shown that blue asbestos was the most dangerous, followed by brown and then white asbestos. The latter two types were however the most commonly used commercially.
The Relevant Statutory Provisions
By 1930 it was generally accepted that asbestos posed a health risk in industry following the publication of a number of annual reports of the Chief Inspector of Factories which eventually led to statutory intervention by the Government and the enactment of the Asbestos Industry Regulations 1931. The Regulations apply to all factories and workshops (or parts of them) in which certain processes including breaking; crushing and manipulation etc of asbestos are carried out.
The Shipbuilding Regulations came into force on 1 March 1932 (and remained in force until their revocation by the Asbestos Regulations 1969) are expressed to apply “to the construction and repair of ships in shipping yards”, the latter being defined as “any premises in which any ships, boats or vessels used in navigation are made, finished or repaired.”
The Factories Act 1937 states that suitable provision shall be made for securing and maintaining the circulation of fresh air and for rendering harmless, so far as is practical, of fumes, dust….generated in the course of any process or work carried out in a factory (section 4(1)). It also requires all practical measures to be taken by the employer to protect the persons employed against inhalation of dust, fumes…(section.47(1)).
Regulation 53 of the Shipbuilding and Ship Repairing Regulations 1960 (which came into force in March 1961) imposes two hurdles upon a Claimant which are not contained within the provisions of its predecessor, Regulation 18 of the 1931 Act. Firstly, a greater knowledge of risk is involved - a fume or dust, must be “likely to be injurious” and secondly, the provision of exhaust appliances is made subject to the limits of practicability. The onus with regard to practicability however lies upon the Defendants (see Nimmo v. Alexander Cowan & Sons Limited [1968]A.C.107).
The Factories Act 1961 also contains provisions relevant to asbestos exposure. Section 4 relates to ventilation and states that suitable provision shall be made for securing and maintaining by the circulation of fresh air the adequate ventilation of the room and for rendering harmless, so far as reasonably practicable, all [asbestos dust] and other impurities generated in the course of any process carried on in the factory.
Regulation 63 of the 1961 Act deals with the removal of dust or fumes. It imposes duties on the occupiers of factories to adopt “all practical measures to protect persons employed therein against inhalation of the dust etc and, in particular, where the nature of the process makes it practicable, exhaust appliances should be provided and maintained…. as to prevent [the dust] from entering the air in any workroom”.
The Construction (General Provisions) Regulations 1961 (Regulation 20) and Construction (Working Places) Regulations 1966 impose further duties from those who control a workplace. Regulation 20 of the 1966 Act states that “when in connection with any grinding…or manipulation of any material, there is likely to be giving off any dust…likely to be injurious to the health of persons employed, all reasonably practicable measure shall be taken to prevent inhalation of such dust…” By Regulation 6(2) of the 1966 Act “any place in which any person…works shall, so far as is reasonably practicable, be made and kept safe.”
Further control measures were imposed by Asbestos Regulations 1969 which applied in respect of factories, building operations and works of engineering construction. These Regulations were subsequently replaced by the control of Asbestos at Work Regulations 1987 which imposed specific hygiene levels still more stringent than their predecessors.
Asbestos Related Conditions
Pleural Plaques - localised area of thickening on the pleural, usually on the outer lining of the chest cavity. Pleural Plaques can occur as a result of minimal exposure. The risk of the condition developing increases with the dose of asbestos dust inhaled. Plaques seldom develop less than 20 years after exposure.
Diffuse Pleural Thickening and Effusion - An area of pleural thickening affecting the visceral pleura, frequently developing by way of pleural effusion (fluid in the pleural space) which then resolves but leaves behind pleural thickening. Pleural thickening may occur after lower doses of asbestos than the minimum necessary to cause asbestosis. The symptoms usually occur 20 years plus after exposure but may arise sooner, particularly if it develops after asbestos related pleurisy with effusion.
Asbestosis - Fibrosis on the lungs caused by asbestos. Asbestosis seldom develops less than 20 years after the commencement of exposure and commonly after longer intervals.
Mesothelioma and Lung Cancer - A tumour arising from mesothelial cells in the pleura of the peritonium (the lining of the abdominal cavity) or the pericardium (around the heart). The risk of it occurring increases in proportion to the dose of asbestos dust inhaled but there is no evidence of a threshold dose below which there is no risk (i.e. all it takes is one fibre to start the malignant process). Most cases of mesothelioma occur in persons with occupational exposure, some also occur in persons with no such exposure, the incidence of the latter is, however, approximately 10 million to 1. The mean latent period between first exposure to asbestos and the manifestation of symptoms is approximately 40 years. Latent periods of less than 20 years are uncommon and less than 15 years rare. The tumour probably begins to grow, on average, approximately 10 years before chemical manifestations are clear.
Divisible or Indivisible
The risk of occurrence of all asbestos induced conditions increases in approximate proportion to the dose of asbestos received. However, the conditions of pleural plaques, pleural thickening and asbestosis also increases in extent in relation to the dose of asbestos received, i.e. they are cumulative or “divisible” injuries.
The implication of the above for awards of compensation is that if a Claimant has been exposed to asbestos by numerous employers, damages will need to be apportioned between all the potential Defendants, irrespective of whether or not they (or their insurers) can, in fact, be traced. It is therefore important to bring all the Defendants “into the frame” in any proceedings in order to achieve maximum compensation.
The conditions of mesothelioma and lung cancer do not vary in relation to the dose of asbestos which caused them. In other words, they are “indivisible” and any one Defendant who materially contributed towards the Claimant’s condition will be responsible for the full amount of compensation, regardless of whether there were other employers who so exposed him.
In cases involving pleural thickening and asbestosis, the Claimant will succeed with his claim if he can show that the Defendant has made a material contribution to his injury (see McGhee v. National Coal Board [1973] 1WLR.1).
Where the condition of mesothelioma is concerned, however, all that the Claimant will need to show is that the Defendant’s breach of duty contributed substantially to the risk that he (the Claimant) would contract the disease (see Fairchild v. Glenhaven Funeral Services Limited [2002] UKHL 22.).
Conclusion
The law relating to personal injury claims arising from asbestos related conditions is not straight forward. However, the Industrial Disease unit of Seth Lovis & Co has many years of experience and specialist expertise in asbestos related personal injury claims and so if you believe you have a claim or simply wish to discuss any aspects of this article, please do not hesitate to contact us.
John Jackiewicz, Partner, Industrial Disease Unit