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We are delighted to read that the Bussey’s appeal has been allowed and that the Judges rejected Technical Data Note 13 as the test in determining the applicable levels of asbestos exposure in mesothelioma cases.
David Bussey was a plumber. He was exposed to asbestos during two periods of employment so there was more than one defendant to the claim. The claim against Avery Way Electronics Limited settled for £150,000 and the case continued against the remaining defendant, Anglia Heating Limited, with whom he was employed from about 1965 to 1968. During that time he handled and cut asbestos cement pipes (with a hacksaw), swept up asbestos and used asbestos rope for caulking joints.
When the case first came to trial, the judge ruled that his asbestos exposure fell below the levels set out in Technical Data Note 13 (TDN13). TDN13 was a document issued by HM Factory Inspectorate in March 1970. This stated that criminal liability would not be incurred where the concentration of asbestos dust in the workplace was kept below certain specified limits.
In the case of Williams –v- University of Birmingham  EWCA CIV 12 42, it was held that a claim could not succeed if the exposure was below the levels in TDN13. This made it far more difficult to succeed in obtaining justice for injured victims in low level asbestos mesothelioma cases. The judge in Williams laid down a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN13 as safe, resulting in TDN13 being used as a guide as to what were acceptable and unacceptable levels of exposure in 1974.
However, the Court of Appeal judgment in Bussey rejects the proposition that employers were entitled to regard exposure levels below those specified in TDN13 as being safe. Lord Justice Jackson says in the judgment that: “TDN13 sets out the exposure levels which, after May 1970, would trigger a prosecution by the Factory Inspectorate. That is a relevant consideration. It is not determinative of every case”.
The decision in Bussey means that while TDN13 is a guide, it is not the benchmark for asbestos exposure and TDN13 does not establish a safe limit for exposure to asbestos.
We are delighted that the often-quoted benchmark of TDN13 has now been overturned.
The case has been sent back to the trial judge for him to re-determine the issue of liability and we are now awaiting that decision.
If you or a family member has been diagnosed with mesothelioma or any other asbestos related disease, we may be able to help. Contact us by email IDClaims@boyesturner.com for a free initial discussion.
The 14th Edition Judicial College (JC) Guidelines have now been published and these reveal increased recommended compensation awards for asbestos victims.
The JC Guidelines are a set of guidelines for the courts and lawyers to refer to when considering the level of compensation a personal injury victim should receive following an injury.
The JC Guidelines categorise injuries by severity, with categories ranging from something simple, such as a minor soft tissue injury right through a catastrophic injury such as a brain or serious spinal injury.
Included within the JC Guidelines are awards for asbestos related injuries.
The table below shows the old and new award brackets for various asbestos related injuries.
|Condition:||Old bracket:||New bracket:|
|Mesothelioma||£56,650 – £101,750||£61,410 – £110,380|
|Lung cancer||£56,650 – £78,650||£61,410 – £85,340|
|Asbestosis and pleural thickening with a 1% – 10% respiratory disability||£12,210 – £31,075||£13,230 – £33,700|
|Asbestosis and pleural thickening with a 10%+ respiratory disability||£31,075 – £85,580||£33,700 – £92,820|
Boyes Turner are pleased to see that the recommended level of compensation for each type of asbestos related injury award has increased.
The level of award an asbestos victim will receive within each bracket will depend on a number of factors to include:
1. The age of the victim.
2. The level of respiratory deficit suffered.
3. Whether specialist treatment or corrective surgery is required.
4. The length of suffering the person is expected to go through.
5. Whether the disease is fatal.
Boyes Turner are specialists in obtaining the maximum compensation for asbestos victims and have assisted hundreds of clients in obtaining justice in the past.
On a regular basis the asbestos claims team at Boyes Turner read reports where building firms and contractors are prosecuted by the health and safety executive for either not complying with health and safety law at all, or where a lax approach to health and safety law has been adopted.
In 2017 alone cases have been reported where contractors have failed to compile asbestos surveys, where asbestos surveys have been ignored, where asbestos registers have not been made available to contractors and there was even a case where asbestos health and safety documents were forged by an asbestos analyst conducting asbestos health and safety surveys.
But what is the cost of this illegal approach to asbestos.
Firstly building and contracting firms face the risk of prosecution if they breach health and safety law.
The Health and Safety Executive (HSE) is one of the few government agencies other than the Crown Prosecution Service that has the power to bring prosecution proceedings in the United Kingdom.
In most cases HSE prosecutions will result in a fine. The level of the fine will depend on the significance of the breaches in question, but in July 2017 three contractors working on a contract were fined £1.27 Million for breaches of health and safety law alone. The level of this fine illustrates the seriousness attached to asbestos health and safety breaches by the HSE and the Courts. A link to the case report can be found here.
The HSE also has the power to serve improvement notices on contractors requiring better practices to be adopted.
If you would like advice on good asbestos health and safety practices you can visit the HSE website which has a range of resources including reference cards, guidance documents, FAQ’s, official forms and best practice advice to name a few. A link to the HSE website can be found here.
As per the above, HSE prosecutions are widely report in the local press, on line and on the HSE website.
Businesses that are prosecuted by the HSE face reputational damage which could have a long lasting effect on their business.
One example of brand damage could be that members of staff and contractors may no longer be willing to work for employers that are known to ignore the health and safety of its workers. This could create staffing problems to employers and in turn contracts may not be completed on time resulting in non-completion clause fines being enforced.
Another example of brand damage could be that main site contractors may be reluctant to employ the services of businesses that are known to breach health and safety law. If this were to occur business could face financial problems and run the risk of insolvency.
Businesses also face being under closer scrutiny from the HSE if they are known to have a poor asbestos health and safety history which could cause problems for the business in the future, even if they do improve their safe working practices.
Lastly, but most importantly businesses face the risk of causing irreversible personal injury to their employees, others working on site, their customers and even members of the public if they ignore asbestos health and safety law.
Asbestos diseases do not manifest immediately and typically diseases are suffered some 30 – 40 years after asbestos fibres are inhaled. It is perhaps for this reason that asbestos is sometimes disregarded as being highly dangerous as its effects are not immediately recognisable.
There are a range of asbestos diseases and each will result in pain, discomfort and respiratory disability. In diagnoses such as asbestos induced lung cancer or mesothelioma, the disease is fatal with victims having just a matter of months to live following their diagnosis.
The crucial true cost of asbestos health and safety breaches is therefore the damage inflicted upon those affected by the exposure to asbestos suffered as a result of the breaches. In most cases it is tradesmen working for building firms and contractors that are affected by asbestos health and safety law breaches.
All tradesmen go to work to earn an honest day’s pay so they can provide for their families and employers owe them both a legal and moral duty to ensure their health and safety in the workplace is protected.
Complying with asbestos health and safety law
Boyes Turner recommend that all companies ensure they are up to date with current health and safety law requirements regarding asbestos. If in doubt the HSE can provide advice and guidance and specialist asbestos contractors are also available to assist businesses with their health and safety duties. By complying with asbestos health and safety law you greatly reduce the risk of your employees becoming injured in the future as well as protecting your business.
Asbestos related conditions are known as ‘long tail’ diseases. That is to say, they manifest themselves several years after the exposure to asbestos took place. In some cases, the symptoms do not manifest themselves until 50 or even 60 years after inhaling the toxic fibres.
This can cause significant problems for claimants with asbestos diseases. It is quite commonplace for a claimant to have been exposed to asbestos by one of their former employers who have long since been dissolved by the time the claimant is suffering from an asbestos related disease.
Employers’ liability insurance
In this situation, they key question is whether or not the employer had employers’ liability insurance at the time the claimant was exposed to asbestos while in their employment. If insurance was in place, we can make an application to the companies court to restore the defunct company to the register of companies at Companies House. Once they have been restored, we can issue court proceedings against them and, in the event of a successful claim, the insurers will have to pay the claimant’s damages. This is a process that the industrial disease team at Boyes Turner are very familiar with and we have successfully resolved many claims of this nature.
However, if the claimant’s former employer is defunct and they did not have any insurance in place when the claimant worked there, this process is of no help to the claimant. There is no benefit in restoring the claimant’s former employer to the register of companies and issuing court proceedings against them if there are no insurers to pay out in the event of a successful claim.
Employers’ liability insurance was not compulsory until the Employers’ Liability (Compulsory Insurance) Act 1969 came into effect on 1 January 1972. As such, there were many employers who did not have insurance before this date and, since many people were exposed to asbestos by their employers in the 1950s and 1960s, this is a particular problem in asbestos disease cases.
In many cases, claimants are simply unable to claim as their previous employer is defunct and did not have any insurance, meaning there is no – one to pay any damages to the claimant.
‘Dose related’ diseases
Asbestosis, pleural scarring and asbestos-related cancer are ’dose-related’ diseases. This means that the more asbestos a person is exposed to, the higher the risk for developing these diseases. The usual approach in such cases is to apportion the damages on a time exposure basis. For example, if a claimant worked for one employer for 5 years and another employer for 5 years (and the levels of asbestos exposure were similar with each employer), each employer would be responsible for 50 per cent of the damages awarded to the claimant.
If a claimant has a dose related disease they may be grossly under – compensated. For example, they may have worked with asbestos for 10 years, but their employer was only insured for two of these (that is to say, 20 per cent of the time that the claimant was working with asbestos). In this situation, they would only receive 20 per cent of the true value of their claim. This is known as a ‘Holtby discount’ after the Court of Appeal’s decision in the case of Holtby v Brigham & Cowan (Hull) Ltd .
Diffuse Mesothelioma Payment Scheme
Thankfully, there is now a scheme in place to compensate claimants who were exposed to asbestos by a defunct employer with no insurance and have gone on to contract mesothelioma. This is called the Diffuse Mesothelioma Payment Scheme and is funded by a levy on insurers. The industrial disease team at Boyes Turner have successfully made many claims under the Diffuse Mesothelioma Payment Scheme on behalf of claimants in this situation.
However, claimants in this situation who are suffering from lung cancer, asbestosis or pleural thickening are simply unable to claim.
The situation is different for people who are injured in road traffic accidents due to the negligence of an uninsured driver. In this scenario, the innocent driver is able to claim through the Motor Insurers’ Bureau, which is an insurer funded organisation in place to compensate victims of the acts of negligence by uninsured drivers. This would seem to be perfectly reasonable. If someone is injured, through no fault of their own, by an uninsured driver, it hardly seems fair for them to bear their losses themselves.
However, there are also many people who, through no fault of their own, are suffering from lung cancer, asbestosis or pleural thickening and are unable to claim compensation as they were exposed to asbestos by an uninsured employer.
The obvious solution would seem to be to extend the scope of the Diffuse Mesothelioma Scheme to claimants who are suffering from other asbestos related conditions. Unfortunately, there are no plans to do this at the moment which means that many innocent claimants will not be compensated.
In Rotterdam, on 10 September 1998, 165 countries adopted the Rotterdam Convention. This is a multilateral treaty to promote shared responsibilities in relation to the importation of hazardous chemicals. While it does not impose any import bans, the convention promotes the open exchange of information and calls on exporters of hazardous chemicals to use proper labelling, include directions on safe handling and inform purchasers of any known restrictions or bans.
It would therefore seem to be a no brainer to include asbestos on the convention list of hazardous substances.
There are six types of asbestos: amosite, crocidolite, tremolite, actinilite, anthophyllite and chrysotile. All six types of asbestos are carcinogenic, but only five of them appear on the list, with chrysotile being the exception.
While chrysotile is considered to be the least potent form of asbestos, it is still recognised as a cause of asbestos related diseases, such as mesothelioma, lung cancer, asbestosis, pleural thickening and pleural plaques.
At the 2011 convention, the Canadian delegation refused to allow the addition of chrysotile to the Rotterdam Convention. This is perhaps unsurprising, given the fact that successive Canadian governments in the 1990s and 2000s continually downplayed the risks of chrysotile. They even part funded the Chrysotile Institute, which spent nearly 30 years promoting the use and sale of asbestos to the developing world.
Thankfully, the Canadian government stopped funding the Chrysotile Institute in May 2012 and it has since closed. This was followed in September 2012 by an announcement that the Canadian government would no longer oppose the inclusion of chrysotile in the convention.
They also ended their support for Canada’s last asbestos mine in Asbestos, Quebec, which we previously wrote about here. Thankfully, the mine has now closed.
However, chrysotile remains absent from the Rotterdam Convention. In 2017, 157 countries attended the conference, but the addition of chrysotile to the list was blocked by seven countries:
Russia continues to mine and expert huge quantities of asbestos, something we previously wrote about here. Given the restrictions on asbestos use in many developed counties, more aggressive marketing of chrysotile has resulted in developing countries.
It is hard to understand how human life can be so recklessly disregarded in the pursuit of profits from the continued mining and sale of chrysotile. By blocking its inclusion in the Rotterdam Convention, it can only be assumed that the delegations from the relevant countries are attempting to prevent the dangers of chrysotile from being more widely publicised.
Boyes Turner believe that an international ban on asbestos cannot come soon enough. However, to block the open exchange of information on the dangers of chrysotile to purchasers really is indefensible.
There are a number of ways someone can be exposed to asbestos including, when at work, when working in the vicinity of others using asbestos, when laundering clothes covered in asbestos dust, when living in the vicinity of an asbestos producing factory and when working or living in a building containing asbestos to name but a few.
In this article the professions most likely to be exposed to be exposed to asbestos are discussed.
Lagging has been mixed and applied for many years to pipes, boilers, structural steelwork and furnaces etc to provide a heat containing covering to the item.
The lagging applied can be made up of a number of different materials to include fibre glass, foam and asbestos.
It is when people are mixing up and applying asbestos lagging that they are at most risk of suffering from an asbestos related disease such as diffuse pleural thickening, asbestosis, asbestos induced lung cancer or mesothelioma.
The application of asbestos lagging involved laggers pouring large bags of asbestos lagging powder in to a drum of water and then mixing the water and paste together to form a thick insulating paste which was then applied to a surface. The pouring of the lagging powder in to the drum of water caused large plumes of asbestos dust to be emitted in to the working environment which would land all over the lagger. The mixing of the lagging powder and water caused further asbestos dust to be kicked up in to the air.
The application of the asbestos paste to items is also highly dangerous.
Asbestos could also be sprayed in to place in a wet form once mixed which was also highly dangerous due to the amount of asbestos fibres that were sprayed in the air and that came raining down on the worker.
Lagging is one of the most dangerous asbestos professions and laggers are at a high risk of suffering from mesothelioma.
Plumbers and fitters
Plumbers and fitters often encountered asbestos lagging on site when removing old asbestos lagging so the pipes or boiler underneath could be worked on or when applying asbestos to new installations.
The removal of old asbestos lagging usually involved the worker hacking the old asbestos lagging off using a variety of tools such as hacksaws, hammers, crow bars and even their bare hands. This asbestos removal work released millions of asbestos fibres in to the workplace which would land all over the worker and surrounding work surfaces.
The worker would then clean up after their asbestos removal works using tools such as dustpans, brushes, brooms and shovels. This caused the asbestos dust to be kicked up in to the air again.
When applying new asbestos lagging the worker would either mix asbestos lagging as per the above, or use pre-mixed asbestos putty such as “monkey muck” to pack out asbestos glands.
Asbestos string was also cut and used to seal glands and joints. The use of asbestos string also released dangerous asbestos fibres in to the environment.
Carpenters often came in to contact when working on installations containing asbestos or when installing asbestos products such as asbestos containing insulation board or “asbestolux”.
Many places contain asbestos board which has been installed as ceiling boards, wall boards and in asbestos containing fire doors. Asbestos was used due to its fire retardant and acoustic properties.
Carpenters would encounter this asbestos when carrying out rip-outs, modifications and repairs to older properties.
Carpenters would also encounter asbestos when installing asbestos boards on site.
The carpenters would cut the asbestos boards using wood saws, pad saws and circular power saws. The asbestos boards then had there edges smoothed off using a plane. Holes were then drilled in to the boards to allow pipes to pass through them and for fixing purposes. All of these tasks released millions of asbestos fibres in to the working environment.
The carpenters would also have to clean up after themselves each day which caused further asbestos dust to be kicked up in to the air.
Boiler workers would often encounter asbestos lagging on old boilers they were working on, when applying asbestos lagging to new boilers and when using monkey muck and asbestos string to seal glands on boilers.
Boiler workers suffered high exposure to asbestos on a regular basis due to the fact that boilers and their associated pipework carry extremely high temperature water and steam in pipes which needed to be insulated to contain the heat and to protect people from burns.
Electricians were also exposed to asbestos when working on sites installing electrical installations where asbestos lagging was present or being applied.
Electricians also often worked in enclosed loft spaces where loose fill asbestos insulation was in the loft for insulating purposes.
Many electricians also installed asbestos insulated cables on immersion heaters and on boilers.
Electricians would also use pad saws to cut holes in asbestos boards for socket and switch boxes to be mounted on to.
Asbestos is also an insulating material so asbestos board was often cut to shape and secured to walls for fuse boards to be fitted on top of to provide an insulation barrier between the fuse board and the wall.
The above jobs exposed electricians to millions of asbestos fibres on a regular basis.
Many schools in Great Britain contain asbestos on lagged pipe work, in ceiling and wall boards, in fire doors and in other places such as cupboards where asbestos boards were used for shelving.
Teachers over time would be exposed to millions of asbestos fibres when slamming doors which caused asbestos fibres to be released from the doors, walls and ceilings, when pinning children’s work to asbestos walls using drawing pins, when leaning against asbestos pipes and when putting things on and taking things off of asbestos shelves.
There have been hundreds of cases of mesothelioma involving teachers.
Many mechanical items contained asbestos materials. Examples of asbestos containing materials include brake discs, clutch pads and insulating materials in the engine compartment to name but a few.
Mechanics were exposed to high levels of asbestos dust when blowing out asbestos dust from wheel arches with high pressured air lines when changing the asbestos brakes, when removing old asbestos brake pads, when grinding, drilling and chamfering asbestos brake pads to fit a vehicle and when working on asbestos containing clutches.
As mechanics often worked in contained spaces such as within a wheel arch there asbestos exposure was high.
Artexers and plasterers
Artex and plaster often had asbestos mixed in to it as a bonding agent. Artexers and plasteres would mix asbestos based arte up in the same way that asbestos lagging was mixed exposing them to copious amounts of asbestos dust.
Typically artex and plaster mix contained around 3% asbestos.
Many roofers were exposed to asbestos when installing asbestos based roofing tiles or when cutting “Big 6” asbestos corrugated roofing sheets to size and then fitting them.
Asbestos tiles would need to be cut to shape and size using hack saws.
Asbestos corrugated sheeting would need to be cut to shape and size using power saws and then drilled for fixing purposes.
The cutting and drilling of asbestos roofing materials caused copious amounts of asbestos dust to be released in to the air, especially when circular saws were used.
Many more professions were exposed to asbestos on a regular basis to include shipbuilders, shiprepairers, emergency service workers, members of the armed forces and construction workers to name but a few.
Asbestos alert is a free quarterly e-newsletter prepared by the mesothelioma and asbestos claims team at Boyes Turner and is available to anyone who is involved in asbestos care, treatment or management and also to asbestos victims.
Each quarter the newsletter reports on matters such as:
- Updates in the law regarding asbestos
- Interesting stories on the historical uses of asbestos
- Asbestos victim’s personal stories
- A question and answer session prepared by specialist asbestos lawyers
- Articles on asbestos in the world today
- Legal battles successfully pursued by the Boyes Turner industrial disease team
- Charitable events the Boyes Turner industrial disease team are taking part in for asbestos related causes
And much more…
The newsletter is a fantastic way of keeping up to date with what is happening in the legal minefield of asbestos litigation, with Boyes Turners recent successes and how the team are helping charities with vital work to beat diseases such as pleural thickening, asbestosis, asbestos induced lung cancer and mesothelioma.
Whilst researching for a claim we came across the following British Pathé film showing how asbestos fibres were formed on the earth’s surface and some of the “wonderful” uses for the product.
The short video can be viewed here.
In the video a number of workers are shown using asbestos based cloth to make a number of items such as asbestos fire suits for use by RAF fireman, like the suit pictured below.
All of the workers are handling the asbestos cloth with their bare hands and no personal protective equipment such as breathing masks or ventilation equipment is being used at all.
Worryingly the workers are then seen to cut and sew the material which would have released thousands of harmful minute asbestos fibres in to the air which are invisible to the naked eye, but extremely dangerous if inhaled.
The effect of inhaling harmful asbestos fibres is a risk of suffering from diseases such as pleural plaques, pleural thickening, asbestosis, mesothelioma or asbestos induced lung cancer, the latter two conditions being fatal diseases.
The asbestos fire suits are then seen in use by a fireman waddling around in the suit. The wearing of this suit may have protected firemen from heat and flames, but simultaneously it would have still been placing the fireman’s life at risk. Unfortunately asbestos related diseases are not suffered until many years until exposure to asbestos meaning the firemen would not have been able to appreciate the danger they were exposing themselves to when wearing the suits.
Later on in the video asbestos cloth is seen in a variety of places around the home such as asbestos covered sofas and asbestos table cloths. The video goes on to boast the wonderful properties of asbestos when it shows a lit cigarette not damaging a sofa and a lit candle being unable to burn a table cloth. Again having asbestos products in the home is extremely unsafe as it only takes a small exposure to asbestos to cause the fatal condition mesothelioma.
Unfortunately many asbestos based household products are still in existence and some asbestos based items are still seen for sale at boot sales, flea markets and in antique shops. If you believe you have an asbestos item in your home have it checked by an asbestos specialist to be sure it is safe.
There are strict time limits for dealing with asbestos-related disease claims. Court proceedings must be issued within 3 years but this time limit does not start from when the asbestos exposure took place nor does it start from when an individual is told they have a right to bring a compensation claim.
Legislation states that the 3 year time limit in a personal injury claim, which includes asbestos-related disease claims, starts when the cause of action accrues or from the date of knowledge of the injured person.
What and when is accrual of the cause of action?
Accrual of the cause of action is usually straightforward where an accident causing an injury occurs as time starts running from the specific date of the accident but it is less straight forward in industrial disease claims.
The 3 years typically start to run from the date of diagnosis, but it may be earlier than the official date of diagnosis if the individual has or ought to have made a connection between his/her symptoms and previous asbestos exposure.
When someone is negligently exposed to asbestos, there is no claim at that stage as no damage has occurred. However, once symptoms start arguably a cause of action accrues and the 3 year time limit starts to run, even if no formal diagnosis has actually been made.
What is date of knowledge?
Legislation defines date of knowledge as the date on which an individual first had knowledge of the fact that:
- the injury was significant – this is usually easily established in an asbestos-related disease claim
- that the injury was attributable to the negligence of another (the so-called defendant) – the individual must know that his disease was factually caused by the negligence of the defendant and
- the identity of that defendant.
The medical evidence is important in assessing date of knowledge as an individual will be deemed to have the requisite knowledge where he or she might reasonably have been expected to have made further enquiries about his symptoms even if he/she did not.
We usually request medical records at an early stage of a claim to enable us to assess whether there is a limitation issue to be overcome.
What if someone has died from an asbestos-related disease?
Where somebody has died as a result of an asbestos-related disease, the 3 years generally runs from the date of death to allow the family to either make or continue with the claim.
However, it is important to note that where a limitation period has already expired at the date of death, it does not start again. So, for example, where an individual has been diagnosed with asbestos-related and symptomatic diffuse pleural thickening but does not bring a claim but then 10 years later he/she is diagnosed with mesothelioma, his/her claim for mesothelioma will be out of time as the time limit runs from the original diagnosis.
Had he/she brought a claim for diffuse pleural thickening within 3 years, he could have settled the claim on a provisional damages basis and then re-opened the claim to recover further compensation upon the mesothelioma diagnosis.
However, see below as the court may allow a claim in such circumstances to proceed despite being out of time.
Can a claim be brought out of time?
Yes, the court does have the discretion to disapply the 3 year time limit and allow a claim to proceed out of time in certain circumstances. Various factors will be considered by the court in deciding whether to exercise its discretion, including the prejudice to the individual claiming in being unable to pursue the claim out of time and the prejudice to the Defendant in having to defend a claim brought out of time. The reasons for the delay and the length of the delay will also be important factors for the court to weigh up.
Whether a claim is in time is a tricky area of law and there are many reported cases on the issue.
In all circumstances, it is advisable for individuals to seek legal advice as soon as possible to best protect their position.
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