Mesothelioma cancer is said to be, in legal terms, an indivisible disease. In practical terms what this means is that it cannot be proven which of a number of Defendants who have exposed a Claimant to asbestos are responsible for the onset of the mesothelioma; however, the law states that any Defendant which can be proven to have exposed the Claimant to asbestos will be held responsible for 100% of the damages.
This principle is of great benefit to Claimants, because in many cases the Claimant will have been exposed by a number of Defendants. Some of those Defendants may have ceased trading and be untraceable, or alternatively their Insurers may not be traceable. However, as long as one Defendant who has negligently exposed the Claimant to asbestos can be identified, and/or its Insurers, then the Claimant will receive 100% of his/her damages.
The mesothelioma test – material contribution
The test for mesothelioma claims is whether the exposure at a particular Defendant was significant enough to have materially contributed to the risk that the Claimant would have suffered asbestos. It cannot be proven whether exposure at a particular Defendant has caused mesothelioma, the best doctors can say is that an exposure will have materially increased the risk. Therefore, any exposure which is more than the minimal will have materially increased the risk so that that Defendant can be sued. This was the decision which came out of the landmark mesothelioma claim of Fairchild –v- Glenhaven Funeral Services Ltd which was heard before the House of Lords in 2002. In that case Defendants in a mesothelioma claim, tried to say that because the Claimant could not establish which Defendant had caused the mesothelioma, none of the Defendants could be held responsible. The Court dismissed that argument and held that a mesothelioma sufferer who could establish against a particular Defendant that exposure was more than the minimal will succeed.
The position for mesothelioma claims has to be compared with those for asbestosis and pleural thickening cases. Asbestosis and pleural thickening cases are said to be divisible diseases; this means in law that every Defendant who has exposed a Claimant to asbestos will have contributed to the asbestosis or pleural thickening. However, the contribution will be linked to the dosage of asbestos to which the Claimant was exposed at each Defendant. Furthermore, it is the cumulative exposure which has caused and/or contributed to each of the diseases. The effect is that in an asbestosis or pleural thickening case, if not all of the Defendants can be sued (for whatever reason, for example Insurers cannot be found,) then damages will be reduced accordingly. In consequence a Claimant may recover only a certain percentage of his damages in such a claim when not all of the Defendants can be found. This is to be contrasted with the situation in a mesothelioma claim, as described above.
Secondary (or familial) exposure in mesothelioma claims
It is not only the workmen who were exposed to asbestos through their employment who can claim damages as a result of contracting mesothelioma. There are many cases where family members who have been exposed to asbestos through the asbestos being brought home on the work clothes, have contracted mesothelioma. These are secondary, or familial, cases of mesothelioma.
These mesothelioma claims are more difficult to succeed in, because the sufferer has not directly been exposed to asbestos at the Defendant. However, it is established law (see the case of Maguire –v- Harland and Wolffe) that the family members of workmen who suffer with mesothelioma can succeed in claims against the employer where they show that the employers should have been aware, that it was foreseeable, that the workmen would go home with asbestos on their clothes. The date of knowledge for such cases is later than 1965 (being the date of knowledge for most mesothelioma claims,) because it is said that foresee ability for employers in these cases would have been later. In other words, whilst employers should have foreseen from 1965 that employees exposed to asbestos might suffer with mesothelioma, it took them a little longer to realise that also family members of workmen exposed to asbestos were at risk. The date of knowledge for “secondary mesothelioma” claims is therefore more likely to be the late 1960’s.
However, each case will depend upon its own particular facts, and there may be a strong argument that a company who has detailed knowledge of asbestos and its risks, could still have an earlier date of knowledge. All will depend upon the specific facts of a case, and what a particular employer knew or should have known at the relevant time.
The most common example that we have come across of secondary mesothelioma claims is where the wife has washed the husband’s work clothes.