Following the recent ground breaking decision on asbestos by the Supreme Court, in which the family of Dianne Willmore, who died of the incurable cancer mesothelioma after she was exposed to asbestos as a child, were found to be entitled to £240,000 compensation and in which similar compensation was awarded to the family of another mesothelioma victim in the co-joined (but unrelated) Appeal of Costello-v-Grief, there are now various implications for the victims of asbestos and on those businesses and employers defending claims before the courts.
Historical background
Mesothelioma is an invariably fatal cancer of the lining of the chest which almost exclusively arises in connection with exposure to certain types of asbestos fibres (principally 'blue' and 'brown' asbestos). The toxicity of asbestos in this (and other) respects is matched only by its ubiquity with widespread use of the substance persisting until the early 1980s. As a result, environmental contamination by small quantities of the mineral is common and no one is immune from the inhalation of small amounts of the substance whose fibres are microscopic in size.
The precise mechanism by which the asbestos fibres within the lung gives rise (usually decades later) to mesothelioma is not yet properly understood, even by expert medical professionals who specialise in this field. Nevertheless the link between the substance and the disease has been known of since the 1960s[1]. Despite debate as to how to deal with exposure within the workplace, usage of asbestos was not banned outright and guidance issued well into the 1970s proposed limits for exposure rather than the prevention of exposure.
Due to the unknown mechanism of the disease, in an earlier case, Fairchild and Others-v-Glenhaven Funeral Services[2], the House of Lords (as it then was) decided that a claimant need not demonstrate causation in the traditional sense (i.e. that exposure to asbestos with a particular defendant caused his/her condition); merely showing that a particular exposure increased the overall risk of mesothelioma occurring later on was sufficient to obtain damages against a former employer or occupier of premises. This rule has become known as the 'material increase of risk test'. However, what Fairchild-v-Glenhaven did not address is the more fundamental question underlying this test: what level of exposure is 'material' (in the sense of meaningfully increasing risk) and, by logical extension, is a level of exposure reached which is 'immaterial' or 'de minimis' such that it is insufficient to trigger the payment of damages.
Knowsley Metropolitan Borough Council (Appellant) v Willmore (Respondent)
Dianne Willmore was exposed to minute levels of asbestos when she was a school pupil, when ceiling tiles in her secondary school were disturbed and stacked in corridors on several occasions. After being found liable at the Crown Court in Liverpool in 2009, Knowsley Metropolitan Borough Council launched an appeal to contest the court’s ruling.
In the unrelated Costello case, Mrs Sienkiewicz was exposed to similarly low levels of asbestos dust as a result of walking through factory premises where asbestos containing materials were handled. The Judge at first instance in that case found on behalf of the defendant, specifically finding that the level of exposure was insufficient to fulfil the 'material increase of risk test', accepting the defendants’ argument that such exposure must be sufficient to provide for a doubling of risk (as compared to the general population risk) of mesothelioma occurring. The claimant in that case appealed.
At the Court of Appeal, Lord Justice Sedley said: “It has to be remembered that where asbestos is involved, a risk of exposure is a risk of harm” Lady Justice Smith, in a similar approach, cited comments from a leading medical expert to the effect that there is “no safe exposure limit for asbestos”. Nevertheless, the defendants in both cases continued to argue that there must be a requirement for a level at which material increase of risk is set and by reference to which liability can be found; this level, the defendants argued, could only be reached if it could be proved that the defendant was responsible for causing exposure to asbestos that had at least doubled the risk of mesothelioma occurring.
Before the Supreme Court, the defendants argued that Ms Willmore and Mrs Costello had failed to demonstrate that they were indeed responsible for exposure that had at least doubled the risk of contracting mesothelioma.
All seven Supreme Court justices unanimously dismissed this argument, stating that the question of whether or not a victim should be awarded compensation lay in an analysis of the factual evidence as to exposure, measured against the ‘material increase of risk test’ and that there was no specific requirement for claimants to demonstrate that the risk to them had been doubled by their exposure with a given defendant.
Establishing a legal threshold?
Following, Fairchild v Glenhaven Funeral Services Ltd the requirement to demonstrate actual causation was never a prerequisite, nor a feasible possibility if the exposure was deemed to have materially increased the risk of contracting mesothelioma cancer then the claimant would most likely have been successful.
The difficulty has been in understanding what exposure, in quantitative terms, is sufficient to be deemed 'material' and what is not. The argument as to ‘doubling the risk’ sought to bring clarity to this ambiguity. Whilst medically there is no minimum threshold exposure of asbestos, below which there will be no risk of mesothelioma, the Supreme Court was here invited to decide whether there should nevertheless be a legal threshold, bearing in mind the ubiquity of the substance in question and, therefore, the likelihood of 'environmental' exposures.
The Court however refrained from establishing such a threshold and instead stated that whether exposure was significant enough to determine liability is to be decided on a case by case basis, taking into account the facts of each individual case. In doing so the Court has paved the way for further litigation to clarify the law in cases such as this, which we will undoubtedly now begin to see progress though the courts.
The case is particularly important to asbestos sufferers who despite having only been exposed to a minimal level of asbestos, have gone on to be diagnosed with mesothelioma. The ruling has arguably made cases involving minimal exposure easier to litigate, potentially increasing the likelihood of claimants succeeding in their bids for compensation.
Challenges for all parties
Time
An inevitability of cases of this kind is that they will be brought many years after the exposure occurred, presenting a number of challenges for both parties. Firstly by the time the case is brought to court, organisations who have arguably allowed exposure to take place may no longer be in business, preventing asbestos sufferers bringing a case against them. Secondly if the organisation or employer is still in existence, they must be found to have had the necessary insurance in place during the period in which the exposure occurred. Thirdly this insurance, if in place during the period in question, must cover the organisation or employer for this type of risk, which sometimes it does not. Without the necessary insurance any defendants deemed liable must pay out to claimants without the support of insurers. Typically cases of this type involve substantial sums of money and so the economic consequences of the ruling for organisations, which are unable to pay, are significant in an already challenging climate of recession. The 'legacy' of the possibility of such claims also brings with it a host of business challenges for any organisation going forwards.
Multiple causation
Another difficulty arises when there are multiple potential causes of the exposure to asbestos.
By the time cases are brought to court, often only one of the organisations or employers who have contributed to the exposure are still in business. The exposure which can be attributed to the remaining sole organisation is often very minimal.
Arguably, blameworthiness for the one remaining recipient is extremely low, significantly less than the combined exposure from all potential defendants who would, if still in existence, have shared the blame and indeed the financial burden. Previously defendants have in these situations successfully argued that when blameworthiness reaches a low enough level, their blame becomes so slight that without the exposure from each of those remaining bodies, the claimant would never have contracted mesothelioma and so they should not be deemed liable.
Cases of minimal exposure
However, by failing to pinpoint such a threshold in this latest decision, the Supreme Court has left the issue open. Potentially any measurable amount of asbestos exposure could now be deemed sufficient to bring a case against a defendant. This is undoubtedly expected to create a significant increase in claims.
This case is, in itself, somewhat exceptional as Ms Willmore was exposed to asbestos as a pupil at school. The Supreme Court has, nevertheless, deemed exposure which occurred to a victim a long time ago, as a child, worthy of the imposition of liability using the ‘material contribution test’.
Implications for future cases
Moving forward courts will be required to decide whether the amount of exposure in each case is sufficient to impose liability. It is anticipated that a number of cases involving only a modest amount of exposure, will now be progressed in the hope of utilising the precedent set by the Supreme Court in the cases of Willmore and Costello.
This is a decision which will have profound economic implications for businesses and employers. Not only has the Court’s decision opened the floodgates to further claims of this kind, but it has also exposed the urgent need for further clarification in the law.
[1] The seminal papers in respect of date of knowledge were the Wagner and Others paper (1961)(relating to asbestos processing workers in South Africa) and the Newhouse and Thompson paper (1965) (relating to instances of mesothelioma in the South East of England/London area from a variety of trades, all linked to asbestos exposure).
[2] [2002] UKHL 22
See also: 'Dying to go to work - how safe are your employees' in The People Bulletin, 23 March 2011