Cases are still being heard today where workers aged in their 70s and 80s can still face difficulties in obtaining full mesothelioma compensation. A former employer can dispute the amount of contributory liability for historical exposure to asbestos at their workplace.

In a recent case, which went to the Court of Appeal, the judge said the claimant, now in his late 80s, could be entitled to proportional compensation “as low as 2.3 per cent” from a previous employer, based upon the number of years worked.

The former employer had not been insured and the chances of winning damages were originally thought to be slight. While the employer admitted a breach of their duty at the original hearing, it was also agreed that the exposure represented only a small fraction of the victim’s “lifetime exposure”, which the defendant’s lawyers argued would have made “no difference to his condition”. Most of the asbestos exposure had occurred earlier in the claimant’s working life as an apprentice during the 1950s.

However, the Appeal court ruling is seen as a ‘landmark’ decision, which could mean that future mesothelioma claims for even the most minimal levels of exposure to asbestos are considered eligible for contributory compensation from a former employer. The insurers of the defendant employers in the present case are still considering a further appeal, which is being viewed as an attempt to establish a principle in their favour for future asbestosis claims.

Regularly exposed to asbestos as a result of the work carried out

The peak period of asbestos use across much of British heavy industry was between the 1940s and the late 1970s/early1980s. Over the course of a lifetime, it was not unusual for men to be employed at different workplaces where they were regularly exposed to asbestos as a result of the work they carried out, such as replacing asbestos insulation in boiler rooms or the lagging wrapped round hot water pipes.

It often meant that a worker was exposed to asbestos fibre dust on more than one occasion and by more than one employer. Defendants would argue that it was not possible to exactly determine from which employer’s workplace an exposure first caused the disease. Proving liability in a mesothelioma case usually requires that the claimant must show that, “on the balance of probabilities”, it was the defendant’s negligence or specific actions which caused the damage / injury.

In circumstances, where it cannot be precisely established where and when the original exposure occurred, and which may have been the initial cause for asbestosis disease to later develop it was previously ruled by the House of Lords that, “the causing of a material increase in the risk of injury would suffice” and “all the relevant employers could be liable” and anyone could be pursued for compensation.

Provisions in the Compensation Act 2006 established joint and several liability, whereby, in relevant circumstances, a claimant may claim full compensation from, “any relevant employer” who may then claim back contributions from other employers who are also liable.

Difficulty in determining liability between all relevant employers

Nevertheless, there can still be a difficulty in determining how the liability should be divided between all the relevant employers, i.e. according to the relative level of their contribution to the probability of the claimant contracting an asbestos-related disease. As a result, it was likely that a claimant could see a reduction in their chances of receiving full compensation.

Former employers invariably mount robust attempts to contest liability based on the identification of a specific cause amongst several workplaces in a former employee’s lifetime. A claimant’s case is often challenged as the alleged original period of exposure often occurs up to 50 years earlier, which is the time it can take for the first asbestosis symptoms to emerge.

Previously, the Supreme Court had settled a claim where the defendant argued that they could only be held liable if it could be proved they were responsible for causing an exposure, which had at least ‘doubled the risk’ of mesothelioma. All seven of the judges who heard the case held that the test as to whether compensation should be awarded should remain as the “material contribution” of the exposure and not based upon a level of risk.

Recent medical research suggests that the passing of time does not diminish the potential for individuals to develop mesothelioma. While it has always been known that the risk of mesothelioma increases since the first period of exposure, even after nearly half a century the risk of developing the disease is still at the same high level or could even increase.

The British Journal of Cancer has stated that “Asbestos continues to be the cause of the largest proportion of the overall burden of occupational cancer.” Despite mesothelioma accounting for less than 1 per cent of all cancers, around 2,500 people continue to be diagnosed with mesothelioma in the UK every year.