The recent decision from the Supreme Court that there is no ‘low level’ for asbestos exposure and that liability for mesothelioma falls on “anyone who has materially increased the risk of the victim contracting the disease” is another reminder of how ignorance and carelessness can end up killing innocent employees, but slowly so that they live with the fear and uncertainty for decades.
Dianne Willmore was just one of many pupils, teachers and school workers who had suffered from asbestos-related cancer.[1] Another recent claim, which settled before it went to court involved an 81-year old former painter and chipper for shipyards on the River Tyne – he was diagnosed with the with the fatal cancer mesothelioma in July 2010 after complaining about stomach problems to his doctor.[2] It is not clear as yet from the huge numbers of asbestos-related disease claims that have kept personal injury solicitors busy how many more have yet to see the light of day, but the issue remains for employers of how they minimise the risk of a disease they may unwittingly be exposing their workers to.
While health and safety regulation has come a long way to reduce the risk of industrial disease, part of the problem has always been the economic necessity on the part of the worker to remain employed and not cause ‘trouble’ and the employer being unwilling to admit they had a problem in the first place. Many workplace accidents have happened for this reason – for example safety guards not being used because they slowed productivity and noise exposure not being properly managed, thus fuelling risks of industrial/occupational deafness, despite the introduction of the Noise at Work Act 1989.
The pressure group, Labour Behind the Label has recently hit the headlines for criticising certain foreign jean manufacturers that use sandblasting to give the denim a ‘worn’ look, despite the danger that silica dust from sand can get into workers’ lungs. But ethics of importing of goods from countries with poor safety records is another story altogether.[3]
Early warnings
However, even when evidence of workplace diseases is staring everyone in the face almost immediately after exposure, people have been slow to make changes. For example a medical history thesis[4] explains how the town of Kidderminster, famous for its carpet manufacturing, reported 36 cases of anthrax with five deaths traced to bales of imported wool that were contaminated. Despite some half-hearted attempts to raise awareness among workers with what was then a Factory Department poster showing pictures of early stages of the disease along with advice to seek immediate medical attention, contaminated wool went on being used and there seemed almost a tacit acceptance that, according to the study, ‘a few cases of anthrax each year for many more years were the price to be paid for spinning high risk wools. The inadequacy of prevention nationally was recognised by the Factory Department and there was a major inquiry in 1914, although the war delayed publication until four years later.’
Dr Tim Carter, a former medical director of the Health and Safety Executive who conducted the research told The People Bulletin: “with a historic disease like anthrax, you got it, usually died within a fortnight and the evidence would build quickly. The problem with asbestos was that nobody had any idea there was a problem for 30 years or so and a whole generation has been exposed.”
Could workplace smoking be the new asbestos?
While the COSHH Regulations provide strict guidelines for employers working with dangerous substances, what are the risks facing office-based employers? The main one, rather like asbestos, could well be the later onset of diseases found to have their origins – or at least triggers – in passive smoking at work.
It became illegal to smoke in the workplace from July 1997, but many employers paid lip service to the ban, leaving themselves open to personal injury claims on grounds of passive smoking. One example of this was Karen Whitehead, an asthmatic administrator for the Granby Island Community Centre in Plymouth who was dismissed for taking 16 days sick leave out of a total of 45 days employment with the centre. An employment tribunal awarded her £17,000 compensation for unfair dismissal because her boss had refused to stop smoking in her presence. Although she did not have the normally required one-year’s service, she was allowed to sue for unfair dismissal because she was protected by the fact she was registered as a disabled person on grounds of her asthma.[5]
Passive smoking or environmental tobacco smoke can cause a range of diseases including lung cancer and heart problems, as well as making existing conditions like asthma even worse.
So any organisations that ‘turn a blind eye’ or possibly even have office workers taking smoking breaks too near the workplace entrace, may well be hearing from relatives like Enid Costello’s daughter who took the packaging company Greif to court – and won – because of her mother’s exposure to asbestos while working there as an accounts clerk.[6] Even if the ban is correctly enforced now – any evidence that it might not have been once upon a time could well be enough for the courts to find in favour of the claimant if they take the same line they have recently with asbestos.
[1] Knowsley MBS v Willmore [2011] UK SC 10 will be discussed in more detail in a separate People Bulletin article on 15 April.
[2] www.thompsons.law.co.uk/ntext/compensation-asbestos-cancer-diagnosis.htm
[3] www.labourbehindthelabel.org/support-us/itemlist/category/263-killer-jeans
[4] The dissemination of anthrax from imported wool: Kidderminster 1900-14 by Dr Tim Carter, Occupational & Environmental Medicine 2004: 61: 103 to 107.
[5] www.timesonline.co.uk/tol/news/uk/health/article991924.ece
[6] www.bailii.org/ew/cases/EWCA/Civ/2009/1159.html