COMPENSATION CLAIMS FOR ASBESTOSIS AND MESOTHELIOMA
Asbestosis is a chronic inflammatory condition which affects the lungs. It occurs after long-term, heavy exposure to asbestos and is therefore regarded as an occupational lung disease. Mesothelioma is a form of cancer that is almost always caused by exposure to asbestos.
An employer owes a duty of care to their employee to keep them reasonably safe at work and an employer may be liable for breaching this duty by creating a material risk of mesothelioma or asbestosis on the basis of having negligently exposed an employee to asbestos. In such cases, it may be possible to recover monetary damages in the civil courts.
The following are established court guidelines for deciding asbestosis and mesothelioma claims:-
- In Gunn v Wallsend (1989), the courts held that an employer would be exempt from breach of duty to their employee in cases where the contacting of asbestosis or mesothelioma through indirect domestic exposure to asbestos occurred before 1965, when the indirect risk was unknown and the employer could not be expected to guard against it.
- In Margereson v Roberts (1996), it was held that a Claimant may recover damages for exposure to asbestos that occurred before research was first published making a link between asbestos and mesothelioma, as it had been known from the beginning of the century that breathing asbestos dust created a risk of some physical harm.
- In Fairchild v Glenhaven (2002), in circumstances where a Claimant had been negligently exposed to asbestos by more than one employer and could not prove which Defendant caused their condition, it was held sufficient to prove that a Defendant employer materially increased the risk of injury.
- However, in Barker v Corus (2006), it was held that each employer is severally liable only to the extent of the share of risk created by each of their breaches of duty.
The Compensation Act 2006 was implemented after Barker v Corus. This act provides that a Claimant can sue the employer of his choosing for the full extent of the damage suffered.
Another asbestosis related condition is pleural plaques which is the thickening or scarring of the fibrous tissues of the lung. For many years Claimants were able to bring claims for these however, the recent House of Lords decision in Johnston v NEI now prevents Claimants from doing so as they are seen not cause any significant physical harm. This decision has prompted many MPs to call for changes to the law which would allow those with pleural plaques to be compensated. Sufferers of pleural plaques often experience anxiety that they will contract mesothelioma in the future and have to have regular check ups ensure that their condition does not change.
Metcalfes have experience in dealing with asbestos related illness claims and many other employers' liability cases. It may be possible to bring a claim on a 'no win, no fee agreement' basis. Call Angelina Rigby on 0117 929 0451 or email arigby@metcalfes.co.uk for more information.
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