Asbestos disease claims including those for mesothelioma, are usually brought against the employer who has exposed its employee to asbestos. It is accepted law that an employer owes its employee a duty of care to take reasonable care for his wellbeing. For this reason most asbestos claims are brought against an employer.
Insurance – Employers Liability Insurance Bureau
Asbestos claims including those involving mesothelioma, are brought against employers who were in business many decades ago. It is often the case that such employers no longer exist. If the company does not exist then to pursue a claim it is essential to be able to find its Insurers. The problem is that there is no legal requirement for companies to document who their Insurers are, consequently the details did not have to be filed at Companies House, and it is often very difficult to be able to establish who the insurers were. This has meant that a significant number of asbestos claims have failed because of an inability to find the insurers; there is therefore no one to pay the claim. This is particularly troublesome where a sufferer has been diagnosed with terminal mesothelioma.
There is currently before parliament for consideration a proposal to have an insurance fund of last resort which will pay asbestos claims where the insurers of a particular defendant cannot be found. This will be something analogous to the Motor Insurers Bureau, which pays out to victims of motor accidents where the insurers of a particular vehicle cannot be found. It is hoped that parliament will implement an Employers Liability Insurers Bureau, which will be of great benefit to claimants looking to pursue an asbestos claim such as diffuse pleural thickening, asbestosis, asbestos related lung cancer and mesothelioma.
Liability of Directors and other employees
The number of companies for whom an Insurer cannot be identified has led claimants to consider bringing asbestos disease claims against directors and managers of uninsured companies. In the case of directors who have a direct responsibility for health and safety, then there are reasonable prospects of being able to bring a claim against the individual. There is authority for this in the case of Ambler –v- Hepworth, where the Court held that directors who are in control of the work can incur personal liability.
Liability as an occupier of premises
The Occupiers Liability Act 1957 provides that the occupier of premises owes a duty of care to all visitors to ensure that a visitor will be safe using the premises. The Court of Appeal have held that the act relates to the physical state of the premises being used, not to any activity being carried on by workmen at those premises. A workman who was present and about his own work while another was creating asbestos dust was not able to rely upon a breach of the occupiers duty under the act. It is a strange decision.
The Factories Act 1937 and The Factories Act 1961
The duty under the statute was imposed upon the occupier of a factory by Factories Act 1937 section 130 and then Factories Act 1961 section 155. The occupier of a factory has liability imposed upon him in respect of asbestos dust generated by contractors working inside the factory. In Fairchild –v- Glenhaven Funeral Services Ltd liability was placed upon Waddingtons Plc as occupiers of the factory to a workman employed by another company he was working in the factory while renovations were being carried out, at a time when the factory was in operation.
The provisions under the Factories Act impose a duty on the occupier of the factory not to expose a workman to a quantity of dust which is likely to be injurious to his health, secondly a duty not to expose a workman to a quantity of dust which is likely to be offensive, and thirdly a duty not to expose a workman to a substantial quantity of dust of any kind. Therefore, it follows that if either a substantial quantity of dust or a sufficient quantity of dust to be offensive is present, there is a breach of the duty owed under the Act, even if the quantity present was not considered to be likely to cause injury when judged by the standards of the day. It is such a breach of duty which needs to be established in asbestos disease claims.
The Factories Act provides a useful cause of redress to an employee working in a factory who was exposed to asbestos by factory processes, but who cannot found a claim against his employer, for example where he was a subcontractor working in a factory, and not employed by the factory owners. Such provisions open the door for sufferers of asbestos disease to claim compensation.