The decision by a diagnosed victim of asbestos exposure or their family to proceed with a mesothelioma claim is not taken lightly. Many victims are aged in their 70s, 80s or even 90s and may only have months or weeks left to live. The urgent need is to find the answers as to how exposure occurred and why there was apparently such a lack of asbestos awareness by former company employers at the time.

The last point can be where a former employer defendant may deny they were negligent or in breach of their duty to take ‘reasonable care’ in protecting their workforce from actual injury or damage. However, in many cases over the last ten years or more, claimants were employed during the 1960s and 70s, when the considerable health risks of asbestos, which had long been known could lead to mesothelioma and asbestosis disease, were gaining increasing attention and concern.

It was during this period that key legislation was introduced, which placed a statutory duty on employers in all workplaces to protect their staff from dangers to their health and safety. The Asbestos Regulations 1969 specifically referred to working with asbestos while The Health & Safety at Work Act 1974 required employers to “conduct their work in such a way that their employees will not be exposed to health and safety risks.”

Unexpected reversals

Victims of exposure to asbestos have not always received the outcome they were looking for when pursuing a civil claim for mesothelioma compensation. Court verdicts can still throw up unexpected reversals to precedents set by previous case decisions. Nevertheless, a significant number of cases are being settled in the claimant’s favour as a result of legislation like The Health & Safety at Work Act 1974.

The straightforward evidence that an employer failed to provide his workforce any protective equipment, breathing apparatus or even a basic face mask at the time when the claimant was employed in working with or near to asbestos materials, can be shown to be clear negligence in their duty of care to provide ‘reasonable’ protection. As a result, in a number of cases, the claim may be quickly settled out of court.

In one recent case, the court concluded that a set of separate, specific industry regulations in place at the time did not apply to the claimant’s work and even the Asbestos Regulations of 1969 were not considered relevant. The victim, now in his 80s, was employed as an engineer onboard a marine vessel from the 1950s through to the 1980s where he was exposed to pipework and equipment insulated with asbestos.

Defendant did not do enough to minimise the risk

During the middle of the 20th century, thousands of naval personnel and commercial seamen were regularly exposed to asbestos lined heating systems and other machinery aboard their vessels. It was only since April 2016 that the MoD has allowed veterans the choice of a lump sum payment or a regular, smaller pension if they have been diagnosed with mesothelioma caused by exposure to asbestos while they were on military service. However, the change to the rules does not apply to those veterans who were diagnosed on or after 16 December 2015.

In the present case, while the court ruled that the marine regulations were not applicable to the marine engineer, it did say that the defendant could be held to account as the regulations were relevant about companies knowing about the dangers of asbestos and therefore, ensuring preventative measures were put into place. On this occasion, the court made its decision based upon ‘judicial precedent’, also known as common law, which stands in contrast to but equal standing with established laws adopted through the legislative process. The court found that the defendant did not do enough to minimise the risk from exposure to asbestos and the case was found in favour of the former engineer.

The absence of protective equipment as proof of employer negligence to reduce exposure risk is regularly reported in mesothelioma victim statements. However, a victim, wife or another close family member may also need to call upon former work colleagues to give their account of conditions at the time, the extent to which asbestos was present and the employer’s failure to minimise the risk of exposure.