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Published Mon, Mar 21st 2011

Asbestos in The Supreme Court - The implications of the past on the liabilities of the future

"Asbestos has long been known to be a dangerous (as well as a useful) substance, employers and occupiers turned a blind eye to those dangers long after they knew or should have known about them, and mesothelioma is a dreadful disease." Lady Hale

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By Rob Blackburn commenting for Silverdell PLC

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"Asbestos has long been known to be a dangerous (as well as a useful) substance, employers and occupiers turned a blind eye to those dangers long after they knew or should have known about them, and mesothelioma is a dreadful disease." Lady Hale

Implications from Wednesday's landmark ruling.

Victims of mesothelioma have a life expectancy of just 18 months from diagnosis. Mesothelioma is an incurable cancer caused exclusively by asbestos. Asbestos does not occur naturally in the urban world, but was shipped into the UK in large quantities and added to over 3,000 products. Asbestos was used extensively in building materials and thus found its way into offices, schools, homes and hospitals. It was used extensively from the start of the last century up to the final ban in 1999.

Compensation is due because, as Lord Kerr succinctly puts it, "… employers had, in any event, been prepared to have their employee run the risk of contracting the disease." Lady Hale added "employers and occupiers turned a blind eye to those dangers long after they knew" It is for these reasons that almost every case of mesothelioma is entitled to compensation.

Victims normally have to decide whether to accept what is offered by those responsible (if anything) or fight a legal battle that inevitably consumes their last days. This is what makes those that take these fights on so special, it is entirely selfless. Neither Dianne Willmore nor Enid Costello lived to see their victory in The Supreme Court, both passed away at different points in the proceedings. The beneficiaries are those that follow in their footsteps.

Context

Problems arose when those that carry the liability for asbestos victims sought to exploit methods of avoiding their obligations. This has ranged from deliberate procrastination to the current attempts to place the onus on victims to prove that 'which-cannot-be-proved'. Wednesday's ruling was a unanimous judgement by the Supreme Court that quashed the appeals against both Dianne Willmore and Enid Costello and, in so doing, allows victims to receive compensation with a fair method of proving the liability of those responsible.

The ground for the appeals was that the victims should have to prove that on the balance of probabilities the defendants - Knowsley Metropolitan Borough Council and Grief (UK) Ltd - had caused the disease. This would be entirely plausible if this were possible, but both science and statistics have their limits and in mesothelioma they are both found wanting.

Scientific studies can show probabilities of asbestos diseases occurring given certain environmental conditions; age at first exposure; type of asbestos; length of exposure etc. But the results that can be gleaned from this are only reliable insofar as the exposures encountered are similar to those in the original study. The reality is that with asbestos all of the studies are based on very high levels of exposure, such as manufacturing or mining processes. There are no studies that relate to asbestos exposure at the levels discussed or encountered in these two cases. Experts took little heed of this and continued to state probabilities with no reliable foundation. Lord Bingham referred to this as part of the 'The Rock of Uncertainty'.

Asbestos victim

The requirement to prove liability on the balance of probability test requires the victim to show that the negligent party has 'doubled the risk'. Looked at in simple terms, this means that if the risk of any member of the population getting a disease were 1 then the probability that the employer had caused the disease would not occur until such time as the risk had grown above 2. Once the risk exceeds twice the original the probability is that the disease was caused by the employer.

This premise demands that we can define, with certainty, both the risk of developing mesothelioma naturally and the risk created by the negligent act. Our limits of understanding do not allow us to do this. Had such an appeal been allowed, victims would have faced the odious task of creating and defending figures of probability. Such figures would not reflect the real risks and would add an unhelpful subjective element to the proceedings that could add months of legal argument to a case.

The Supreme Court ruled that the test of liability should be 'material contribution' which translates to the victim needing to show that they were negligently exposed. This is an inherently fairer ruling for the victim. This will mean that some employers will face liabilities where their actions, although negligent, did not cause the disease; this is a necessary position to protect the innocent victims. The courts would not have turned their attention to this had the companies, insurers and councils not taken such a hard line in the battles they have fought to limit compensation to those that shoulder the legacy.

Asbestos in schools

Dianne Willmore's case is exceptional in its own right in that she was exposed to asbestos as a child at school. Studies show that the younger you are exposed to asbestos the greater the risk of contracting mesothelioma. Statistics show an increasing number of teachers diagnosed with this disease. The Supreme Court ruling clearly considers and confirms that pupils were exposed to asbestos while at school and that this was a material contribution to the risk of the disease developing.

Asbestos was used as a building product extensively between 1945 and 1975 when nearly half of all schools were built. There are growing concerns over the management of asbestos in schools. Michael Lees, an ardent campaigner for tougher management of asbestos in schools, has been trying to get government to appraise the risk that asbestos still poses in schools. Michael's campaign may now receive some much-warranted recognition. Michael's wife Gina died aged 51 from mesothelioma; she was a primary school teacher.

Dianne and Enid's cases set the test for legal liability at 'material contribution' and liability as 'joint and several', in other words when someone is exposed to asbestos they have recourse to each and every employer that exposed them for their full compensation. Asbestos is not a problem of the past it is with us today. Over 500,000 workplaces and over 13,000 schools contain asbestos, this legacy demands to be managed safely if we are to avoid the sins of the past.

Rob Blackburn is a consultant to SAFE Training part of Silverdell PLC.

www.silverdell.plc.uk

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