A former employers’ liability is often argued against on the grounds of the exceptionally long period between an alleged original exposure and the emergence of asbestosis symptoms, up to 50 years later.
Exactly pinpointing one specific workplace among those where a former employee had worked as being solely responsible for causing an asbestosis disease or the incurable mesothelioma cancer can, in some cases, be difficult. A ruling of law was only recently lifted for those patients in Scotland and Ireland diagnosed with pleural plaques ( fibrous scarring of the lung linings), which is mostly harmless but generally taken as proof of an exposure to asbestos fibres.
In legal terms, asbestosis and pleural thickening cases are said to be divisible diseases. This means that every defendant who has exposed a claimant to asbestos will have contributed to the asbestosis or pleural thickening. However, the contribution will be linked to the extent of asbestos to which the claimant was exposed at each defendant’s workplace. The emphasis will be on ‘cumulative’ exposure which has been the cause and /or contributed to each of the diseases.
Mesothelioma is often described as an indivisible disease. It may not always be possible to exactly determine from more than one former employer, who was directly responsible for exposing the victim to asbestos, and which eventually led to the development of mesothelioma. The law does state, however, that a defendant who can be proven to have exposed the claimant to asbestos will be held responsible for 100 per cent of the mesothelioma claim.
In some cases, the claimant will have been exposed by a number of defendants, one or more of whom – or their Insurers – have more than likely have ceased trading and can be difficult, but not impossible, to trace. However, as long as one defendant, and /or their insurers – who has negligently exposed the claimant to asbestos can be identified – then the claimant is entitled to receive 100 per cent of mesothelioma compensation.
Key to the outcome is to determine whether exposure at one former workplace was significant enough to have materially contributed to the risk that the claimant would have contracted an asbestos disease. Medical diagnosis cannot conclusively prove whether exposure at a particular defendant’s workplace had caused mesothelioma beyond stating that exposure will have materially increased the risk, and any more than minimal exposure will have materially increased the risk so that a defendant can be held responsible.
It may be argued that just because the claimant cannot establish which defendant had caused the mesothelioma, the argument that none of the defendants could therefore, be held responsible can be dismissed, if it can be established against a particular defendant that exposure was more than minimal.
A claimant may recover a certain percentage only of the claim when not all of the defendants – including Insurers – can be found liable.