Reassessing longtail exposures

The decision in Fairchild v Waddingtons, Leeds City Council (February 2001) is the latest to attract the attention of those involved in litigation as a result of exposure to asbestos. In his judgment, The Hon Mr Justice Curtis departed from the hitherto established approach to multi-defendant cases where the claimant is suffering from mesothelioma.

In Fairchild, the widow of a joiner brought an action for damages, alleging that her husband had been exposed to asbestos. The action was brought against one of the deceased’s former employers and the occupiers of two premises at which he had allegedly suffered meaningful exposure.

It was agreed that the deceased was exposed to substantial quantities of asbestos dust on both jobs. All three medical experts agreed on the cause of death and that the asbestos exposure occurred during the deceased’s employment. More significantly, the experts agreed that the number of fibres inhaled was immaterial.

The case of Bryce v Swan Hunter & Ors (1987) established the theory that the number of fibres inhaled is immaterial. In summarising the medical evidence in his judgment in Fairchild, Mr Justice Curtis said: “It is not known whether a single or multiple fibres trigger the onset of malignancy – each situation is as likely as the other.” He concluded, however, that: “No court could find on the facts of this case that the deceased’s fatal disease was caused cumulatively by the exposure at defendant three’s and defendant two’s named premises.” He decided that, on the balance of probabilities, the claimant could not prove that the breach of duty by either defendant caused the injury and that the mere risk of injury was not sufficient to establish a cause of action against a defendant.

The effect of the Fairchild decision is that, where there has been exposure, whether by two or more employers or, as here, two or more occupiers, a claimant will not succeed because he cannot establish causation of damage against any one defendant. In this case the claimant’s husband was exposed to significant levels of asbestos by both defendants, but the courts might find a reason not to follow Fairchild where a claimant had been exposed to significantly greater levels of asbestos by one defendant. In that scenario, a court might feel able to conclude that, on the balance of probabilities, the damage was caused by that particular defendant.

While this is only a first instance decision, it is supported by the House of Lords decision in Wilsher v Essex Health Authority (HL) (1988). This established that, where a number of factors could have caused the damage, the onus of proof is on the claimant to establish that the defendant’s negligence was the cause.

Apportioning liability
The Fairchild decision is confined to cases where, as a result of asbestos exposure, the injury is mesothelioma. This disease by its nature is likely to be caused when an e fibre hits the pleural cell. Conversely, asbestosis is a cumulative disease with the effects of each exposure contributing to its onset.

The decision in Holtby v Brigham & Cowan (Hull) Ltd (CA:3 All ER 421) established the apportionment of liability between defendants. It decided that each defendant was only liable to the extent that he had materially contributed to the injury. In the case of Holtby, the claimant was exposed to asbestos dust for a number of years whilst working for several different employers. The amount of exposure was similar for each period of employment. As a result the claimant developed asbestosis. At first instance it was held that the defendants were negligent. However, general damages were reduced by 25% on the basis that the effects of exposure were cumulative and the defendants were liable only for that proportion of the damage which they caused. The claimant’s appeal was dismissed by the Court of Appeal.

Date of knowledge
The need for companies and insurers to keep their historic liabilities constantly under review is well illustrated by the Court of Appeal decisions in Shell Tankers UK Limited v Jeromson and The Cherry Tree Machine Company Limited and Shell Tankers UK Limited v Ruth Mary Dawson (CA:LTL 02/02/2001)

The defendants brought the appeals following a decision in favour of the widows of two former marine engineers, employees of Shell, who died as a result of mesothelioma caused by exposure to asbestos during their work. Dawson had been employed between 1951 and 1957 and Jeromson from 1957 until 1961. The judge at first instance concluded: “I find that, at the material time, marine engineers employed by Shell were liable and likely to encounter intense concentrations of asbestos dust, on a regular basis. In the most part, these exposures would be for minutes rather than hours, but on occasion both at sea and in dry dock, the exposures would be for hours at an even higher intensity.

The defendants contended that, until the 1960s, there was only thought to be a risk of mesothelioma from prolonged exposure and not, as here, from short but intense exposure. The judge, however, was not persuaded. His decision was upheld by the Court of Appeal, suggesting that those companies relying on a date of knowledge in the 1960s should review their position.

The decision had a second sting in its tail. Some companies have relied on the Asbestos Industry Regulations 1931 not extending to processes involving incidental use of asbestos. Prior to working for Shell, Dawson had been employed by Cherry Tree, where part of his job was to seal the platens of dry cleaners’ presses with asbestos to prevent the escape of steam. This involved mixing asbestos flock with water and then applying it. The judge at first instance held that the regulations applied to the process and to all factories and workshops with similar processes.

Claims against occupiers
Companies and insurers have long been familiar with the problems associated with old employers’ liability claims. An increasing issue is the rise in recovery claims being made against companies as occupiers of premises by employers who have settled claims with their former employees, where the claimant has been exposed to asbestos whilst working on another company’s site. Those companies should find some comfort in the decision of Babcock International Ltd v National Grid Co plc.

Babcock was sued by the widow of a former employee, Hussey, who had been employed as a welder. Hussey died from mesothelioma as a result of his exposure to asbestos whilst employed by Babcock between 1953 and 1955. During that time, Babcock was engaged on a major project for the defendant. It was alleged that, as a result of working in the vicinity of laggers at the defendant’s power station, the deceased would have been exposed to asbestos dust.

The judge rejected submissions on Babcock’s behalf that CEGB, as owner and occupier of the power stations, should have known that lagging materials contain asbestos and, furthermore, knowing the risk of injury associated with asbestos, should have taken steps to minimise that risk.

Anna McCullagh is an occupational disease lawyer in the London office Beachcroft Wansbroughs, Tel:.020 7894 6039, E-mail: amccullagh@bwlaw.co.uk

Asbestosregister.com
Although the use of asbestos is now banned in the UK, the Trades Union Congress calculates that there are around 1.4m commercial and residential properties still containing it. With asbestos killing over 4,000 people every year, the TUC backed the launch in March of the UK’s first-ever web-based national asbestos register. It is also calling on the government to require employers and building owners to survey their premises for asbestos and make those registers public.

The TUC and the Parliamentary All Party Group on Occupational Safety and Health have also called on the insurance industry to guarantee that asbestos related disease victims will not lose their compensation payments after the collapse of insurance company Chester Street Holdings (formerly Iron Trades). On 9 March, PricewaterhouseCoopers, the scheme administrators responsible for overseeing the distribution of Chester Street’s assets, announced that they could only pay out 5% of the insurance company’s debts. Iron Trades insured many of the industries where asbestos exposure was common in the 1960s and 1970s.