Can a claim for mesothelioma compensation be successful if the level of exposure to asbestos was relatively low and an employer defendant argues that they were not negligent? A number of court cases heard in recent years have held that predetermined thresholds for exposure limits at workplaces prior to the mid-1980s – when the first asbestos ban on the most toxic brown and blue fibre types was introduced – were not exceeded and the claim of employer negligence was dismissed. The judgment would also cast doubt over whether there was a direct causal link between exposure at the employer’s workplace at the time and its contribution to the victim’s later development of mesothelioma.

However, in one recent case, which is due to be heard at the court of Appeal, the hope is that the decision will be in the claimant’s favour. It is to be argued that if the employer did know that exposure to asbestos at low levels could be potentially fatal but failed to protect his employees to the greatest extent possible – because at the time there was no duty to take action until the ‘threshold’ level of exposure had been exceeded – then the employer was negligent.

Much of the research carried out into threshold levels of exposure refers to data collected during the 1940s, 50s and 60s where brown and blue asbestos was commonly used alongside white ‘chrysotile’ asbestos in heavy industries, such as shipbuilding, engineering and manufacturing. White chrysotile, in particular, continues to be an issue between those who say it is merely ‘low risk’ and the increasing research evidence that points to any asbestos exposure as posing a potential health threat.

Manually replace brown asbestos cement pipes and rope

The current case concerns a former heating engineer in his early 70s who lost his life to mesothelioma in 2016, which is claimed to be the result of exposure to asbestos over a three year period in the mid-1960s. One of the engineer’s regular tasks was to manually replace brown asbestos cement pipes and rope, which involved cutting and shaping the material, and then fitting into place. Although fibre dust was released, the engineer was not supplied with any protective mask or given safety advice about the potential health risks of working with asbestos materials.

At an earlier hearing, the judge found that the levels of exposure were ‘very limited in time’ and ‘low level’, a conclusion reached when referring to threshold standards for ‘Asbestos Dust Concentration’ introduced with the Asbestos Regulations 1969. An accompanying set of data guidance for levels of exposure, beyond which, a prosecution for negligence would be expected, was actually introduced by the Health and Safety Executive in 1970. Both the above dates were after the period that the engineer was employed at the heating company where the exposures were alleged to have occurred.

The judge concluded that if threshold levels had not been exceeded, the defendant would not have been able to ‘foresee’ that harm or injury had occurred, and would not be in breach of his duty to protect his employees. Asbestosis lawyers acting on behalf of the claimant argued that the data guidelines were “not a reliable or appropriate test of acceptable levels of exposure to asbestos at the relevant time” and the employer still had a duty to reduce exposure to asbestos “to the lowest, reasonably practicable level.”

Use of data guidelines in 1960s and 70s should now be questioned

The standards were not introduced as a “guarantee of safety” and were actually based on the use and exposure to white chrysotile asbestos. In addition, they were also not based on the risks of developing the fatal, incurable mesothelioma cancer of the lung linings but of developing asbestosis, the scarring of the lungs. As a result, there has been some indication that the use of the data guidelines introduced as a reasonable indicator of foreseeability of harm in the 1960s and 1970s should now be questioned.

In May 2011, HM Government Office for Science stated that it was “not possible to determine a threshold level”, below which, exposure to white asbestos could be considered safe for human health or to change the classification as a Class 1 cancer-causing agent. European Asbestos Directives issued in 1998 and amended in 2003, 2004 and 2007, specifically address the issue of “sporadic and low intensity exposure to asbestos” rather than simply measuring the extent of exposure and risk.

The future of mesothelioma claims and the lives of countless numbers of mesothelioma sufferers and their families are likely to be impacted by the impending Appeal decision concerning low level exposure to asbestos. It is hoped that the view of the courts will be brought up to date as a result of latest medical research evidence.