Success in a mesothelioma claim can sometimes rely on the court’s view on whether it was “reasonably foreseeable” that the conduct of the defendant would cause injury/damage to the claimant. At the same time it will also consider if there was a relationship of “proximity” or closeness between the two parties.

In one recent case, the court established that the “occupiers of a workplace” owed a duty of care in common law to individuals engaged to carry out the work, no matter if they were independent contractors. The court also clarified the various rulings of factory law, which were later replaced by new asbestos regulations, and any changes affecting employer obligations.

A key requirement in a civil claim for mesothelioma compensation is for a claimant to prove their exposure to asbestos at a specific workplace. It must also be shown that the exposure was a material contribution to causing the subsequent development of their asbestos-related condition, i.e. mesothelioma or another asbestosis disease. In addition, evidence of employer negligence must be shown, which breached a lawful duty of care to their employees. The manner in which the employer defendant did or did not exercise reasonable care in any particular case will vary, accordingly.

Court expressed its concern with the issue of liability

In the present case, the claimant – who was in his early 60s when he lost his life to mesothelioma – was a former bricklayer involved in the maintenance and refurbishment of industrial furnaces during his working life. At this time, the inner walls of the furnaces were often lined with asbestos, a low cost insulation material, which was also commonly used to line hot water boilers and pipework in many types of industrial, commercial and public buildings. During the 1970s, for example, just over 1.4 million tons of asbestos was imported into the UK to be used as material strengtheners, insulation and fireproofing in hundreds of products.

One of the workplaces in which the deceased carried out maintenance work was occupied jointly by two defendants. However, the claimant was not directly employed by the two defendants but provided his services via a third defendant company, which was supplied in turn by another contractor where the victim was technically employed.

While it was not disputed that the claimant was exposed to asbestos in the course of his work and a five-figure sum in compensation was agreed, the court expressed its concern with the issue of liability. Thus, it was not established that the claimant was an employee of the third defendant, the first outside contractor, and the two joint factory owners could not rely on claiming they owed no further duty of care because they had “reasonably” engaged specialised contractors. The Judge found that the two defendants had owed the claimant a duty of care together with the third party, which they had breached.

Likely exposure to asbestos occurred over a considerable period of time

The defendants also argued that the introduction of the Asbestos Regulations 1969 had replaced an entire section of the Factories Act 1961, which had contained an obligation for an employer to protect workers from any substantial quantity of dust of any kind. They further argued there had been no breach of the Factories Act, which requires the factory occupier to maintain a safe place of work as there was a difference between the safety of the physical structure of the workplace and the activities carried out on the premises. Furthermore, they said that the maintenance of the furnaces was carried out infrequently.

However, the Judge rejected the defendant’s arguments having found that the work on the furnaces, and likely exposure to asbestos occurred over a considerable period of time, and was a regular operation. Consequently, the safety of the work would come under the Factories Act, which meant that the defendants were in breach of their duty.

The case clearly highlights the court’s view that an employer owes a duty of care to all individuals present in their workplace, irrespective of whether they are directly employed or are outside contractors.

The Asbestos Regulations 1969 had placed a statutory duty upon employers to ensure that all employees were protected from the dangers of working with asbestos at their workplace. However, the introduction of The Health & Safety at Work Act 1974, not only requires employers to “conduct their work in such a way that their employees will not be exposed to health and safety risks” but to also “provide information” to anyone else present about potential risks to health and safety on the premises.

From 2006 onwards, Control of Asbestos Regulations imposes a responsibility for the maintenance of a non-domestic premises with a “duty to manage” asbestos and protect anyone using or working in the premises from the risks to health caused by exposure to asbestos.