Asbestos exposure
Date: 11 December 2009
Authors: Rehana Azib
Issue: Vol 159, Issue 7397
Categories: Features, Personal injury
There has been a flurry of recent asbestos exposure related cases providing largely good news for claimants in the context of the burden of proving causation and risk.
In Diane Willmore v Knowsley Metropolitan Borough Council [2009] EWCA Civ 1211, [2009] All ER (D) 209 (Nov) the Court of Appeal was asked to address the questions of the burden of proof a claimant must surmount in order to establish material or substantial contribution to the risk of harm. It was held that there was no such thing as a safe dose of asbestos and therefore it was insufficient to eliminate one source of exposure to asbestos if another remained.
The circumstances of asbestos exposure in this case are unusual in that they do not involve exposure in the course of employment. The claimant was a former pupil of the defendant local authority school. There were three circumstances in which the trial judge had found that the claimant had been exposed to a risk from asbestos fibres, namely:
l from work done to a ceiling in the corridor of the school and the temporary stacking there of ceiling tiles for a few days, some of which were broken or chipped;
l damage to the ceiling done by misbehaving pupils in the course of their bullying where they would remove ceiling tiles and push bags and clothes into the ceiling void; and finally
l from vandalism to the girls’ toilets and the temporary stacking there of ceiling tiles for two weeks.
The contribution to the risk of the claimant contracting mesothelioma was found to be material in the light of the judge’s factual findings.
The defendant appealed on the grounds that the trial judge had mistakenly considered that he was determining whether there had been exposure to a risk of asbestos rather than to a risk of harm.
The Court of Appeal rejected this submission as it saw no distinction between a risk of exposure and a risk of harm, and as long as the evidence supported the judge’s findings (which it did), he had reached an entirely reasonable conclusion that avoidable exposure in the school had made a material contribution to the risk and therefore to the eventual materialisation of the claimant’s illness.
Minimal exposure
The second limb of the defendant’s appeal was that the trial judge had failed to establish more than minimal exposure.
The Court of Appeal agreed that in the context of the bullying-related exposure, the rooms in which the claimant alleged the bullying had taken place had concrete ceilings and the bullying could not have taken place there, meaning that the evidence was insufficient to support this particular source of exposure.
However, while one source of exposure had been eliminated, others remained in place and on the evidence the judge had been entitled to find a likelihood of significant exposure from the other two identified sources.
Once exposure above a minimal level was found, a risk of harm was established.
Notwithstanding that a large measure of the judge’s conclusions were based on probability and inference, in the absence of any error of law, he was entitled to find a likelihood of significant exposure in the context of the remaining two sources.
Accordingly, the appeal was dismissed. Willmore reminds us that there is no touchstone for characterising a material risk in the context of asbestos exposure, and even exposure occurring over a period of time as little as two weeks may be sufficiently significant or material to establish liability.
Quantifying damages
In Trevor Martin Horsley v (1) Cascade Insulation Services Ltd (2) C&D (Insulation Operations) Ltd (3) Pinnacle Services Ltd [2009] EWHC 2945 (QB), [2009] All ER (D) 206 (Nov) the questions of causation, contributory negligence and the quantification of damages arose in the context of respiratory disability suffered as a result of exposure to asbestos, where the claimant had also been a heavy smoker for 35 years.
In the context of quantifying general damages for respiratory disability, the general principle that a tortfeasor must take his victim as he finds him applies, and so a discount could not be applied simply because the claimant had voluntarily undertaken the risks associated with smoking.
However, that factor would be relevant when addressing the issue of contributory negligence, applying Badger v Ministry of Defence [2005] EWHC 2941 (QB), [2006] 3 All ER 173.
Further, when calculating future losses, a 15% discount was applied to take account of the risk of the claimant being unable to work as a result of his smoking habit. The overall damages were calculated after applying the discounts established. In claims involving substantial future losses, such discounts would potentially amount to significant sums.
Rehana Azib, 2 Temple Gardens
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