Mesothelioma Claims: Why the Supreme Court got it right
By John Carr, Solicitor
Carrs Solicitors pride themselves on delivering successful and fair results in all of our injury at work claims. This includes the compensation we have won for workers suffering from the effects of asbestos diseases an area that is often the subject of biased reporting in the media. A recent Telegraph article on Asbestos claims arising from a landmark legal decision of Sienkiewicz v Greif and Knowsley MBC v Willmore is a case in point.
The Telegraph Report: Regarding “The Asbestos Scam”
The article goes on to suggest that the decision is scientifically unsound and will cost “a lot of money” in “an asbestos bonanza.”
Christopher Booker says that a leading Histopathologist says that up to 25% of Mesothelioma cases are not attributed to asbestos exposure. Booker suggests that the brightest legal brains in the land have issued a ‘woolly judgment’ that blurs a crucial distinction between blue and brown asbestos with the significantly less harmful white asbestos.
Unfortunately the decision at no place says that most or possibly all cases are caused by white asbestos. The strap line in fact misquotes from the first two lines of the 84 page judgment which actually reads:
“Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres.”
In fact ‘ambient’ asbestos exposure where the victim is not or is no longer aware of the source of their exposure is widely believed to account for the majority of the remaining cases. Booker states that the significance of the judgment was that it seemed to ‘abet’ contractors who will ‘cash in’ and the lawyers will ‘exploit’ the supposed blurring of the risks associated with white asbestos and blue and brown respectively to promote an explosion of compensation claims.
In fact the real issue at stake was whether it was necessary to prove in each case that the proven wrongful exposure to asbestos was sufficient to have ‘doubled the risk’ of contracting the disease in order to prove that the wrongful exposure to asbestos had made a material contribution to the onset of the disease.
The ‘doubles the risk’ test was derived from an epidemiological convention of identifying a statistical association where the likelihood of an outcome has more than doubled. In recognising the limitations upon epidemiological evidence in establishing causation in limited exposure cases where the exposure was possibly 40 years earlier Lord Phillips held that there were ‘special features’ about Mesothelioma claims that render it inappropriate to decide causation on epidemiological data as to exposure and that the test for causation for an indivisible condition such as Mesothelioma was whether the wrongful exposure as opposed to other potential contributory factors could be proven to have materially increased the risk of developing the condition. This followed the approach of the House of Lords decision in Fairchild v Glenhaven where the same test is applied where the Mesothelioma could have been caused by wrongful exposure to asbestos where there are two or more potential defendants.
Booker rants about ‘compensation scams’ ‘woolly headed judges’ and ‘the misery’ and ‘money’ we might be saved had the Seven Supreme Court Justices only decided against giving the asbestos scammers ‘ a great big hand.’ Even in making a tokenistic reference to the victims: ‘Mesothelioma is a very nasty way to die, and when it can be shown beyond doubt that it has been caused by asbestos, compensation may be fully justified’ Booker fails to address the real issue.
Even on Bookers argument if at least 75% of Mesothelioma cases are asbestos related, if the victim can prove that their exposure to asbestos occurred as a result of negligence or breach of statutory duty and that this exposure materially contributed to their condition why should the victims or their families be required to additionally prove ‘beyond doubt’ that it was caused by the asbestos exposure.
In the majority of Mesothelioma cases the victim has been exposed to large quantities of inhaled asbestos and in the absence of other likely causes causation can be established readily. Whilst the Supreme Court decision recognises the scientific consensus of opinion is that there is no safe lower limit for asbestos exposure, in many cases the Mesothelioma claims will still fail where the claimant or their family are unable to prove that the extent of the wrongful asbestos exposure is more than negligible.
The Supreme Court decision in Sienkiewicz is about setting a balance on the one hand between the Mesothelioma victims who can show that the breach of duty materially increased their chances of developing Mesothelioma despite the evidential difficulties presented by the long latency period of the disease and the limits of science and on the other hand the those of the insurers who in common with their policy holders had access to published information from the early 1960s warning them of the risks of asbestos causing Mesothelioma.
Asbestos Claims: Support for Workers
The latest mortality statistics available from the ONS show 2,249 people died from Mesothelioma in 2008. Due to the increased use of asbestos in construction and other industries throughout the 60s and 70s the number of Mesothelioma cases is not expected to peak until 2016 according to the HSE.
If you believe you may have been exposed to asbestos at work, or have contracted an asbestos related disease, contact a solicitor at Carrs Solicitors. As dedicated work related injury and illness firm we will fight for you and your family to receive the compensation you deserve.