Accepting liability for a claimant’s mesothelioma, which is argued was in part or wholly caused by original exposure at the defendant’s workplace can sometimes be challenging in specific circumstances. A recent Supreme Court appeal ruling has allowed mesothelioma compensation to be made to a victim of asbestos exposure even though he was neither employed by the site occupier, was not directly involved with handling asbestos and, according to the original verdict, had not been exposed to ‘sufficient’ levels of the fibre dust to pose a health risk.

Disputed on a number of grounds

Proving that a specific employer and their insurers at a particular workplace could be liable is invariably disputed on a number of grounds including, an employer’s level of asbestos awareness and “foreseeability” of the long term health risks, and whether the employee was exposed to asbestos at other workplaces during their entire lifetime. The success of a mesothelioma claim can often depend on showing ‘on the balance of probabilities’ that it was likely that contracting mesothelioma was due to exposure to asbestos during the period when the claimant was employed at the company.

Another mitigating factor could be that a commercial premises was not directly involved in the manufacture of asbestos containing products. However, the building itself could be found to have been constructed using asbestos insulation or fireproofing materials, resulting in the release of fibre dust particles, as is not uncommonly the case with public buildings, such as schools and hospitals. Frequently, mesothelioma cases are reported where maintenance of boilers, pipework or other building renovations involved employees who were exposed to asbestos fibre dust when routine maintenance or periodic renovations took place.

“At risk even for limited periods”

In the present case, an original court verdict determined that a lorry driver who collected waste from a power station every two weeks between 1954 and 1957, and then twice every three months from 1957 to 1959, was not eligible to receive compensation because he was neither employed by the company occupying the site and his primary work meant that he was not officially involved in the asbestos industry. However, exposure was most likely to have regularly occurred when the driver was in areas of the plant where asbestos insulation was being produced and dust generated while waiting for his waste collection to be loaded.

At the hearing the defence also argued that the driver was only exposed to a “modest level” and insufficient to pose a health risk. The claimant then appealed on the grounds that working with asbestos was a risk “even if the work was occasional or for limited periods.”

A majority verdict at the Supreme Court ruled that under the Factories Act 1961, “the occupier of the premises is responsible for all people on site, not just direct employees” and also determined that “asbestos-industry regulations applied to all factories using asbestos not just those involved in the asbestos industry.” It was also stated by the court that it was a ‘fallacious’ argument to say liability is dependent on a ‘substantial’ quantity of the dust being inhaled.

No confirmed threshold

In 2011, the government confirmed medical opinion that white asbestos is a Class 1 carcinogen without a confirmed threshold level, below which, exposure is not a risk to human health. The Control of Asbestos Regulations 2006 imposes a single ‘Control Limit’ for all types of asbestos at 0.1 fibres per cm3 and a short term exposure limit, which should not exceed 0.6 fibres per cm3 of air averaged over any continuous 10 minute period using respiratory protective equipment.

The verdict reached at the Supreme Court appeal could bring hope to many more victims of asbestos exposure in circumstances, which previously, might have prevented them from pursuing a claim.