Asbestos cancer victims may have a future pathway to compensation currently denied to them.We have reported before that asbestos mesothelioma victims are finding it increasingly tough to make claims.
However a recent case, combined with an upcoming Court of Appeal case, may pave the way for easier cases in the future.
Asbestos cancer – this Case
In the case of HAWKES V WARMEX (2108) the court heard a case about the late Mrs H. She alleges that she was exposed to asbestos between 1946 to 1952 and in 1962 whilst making electric blankets at the defendants premises.
The electric blankets had a lining with an electrical wire fed through them which generated the heat. The lining was stuffed inside a canvas cover which in turn was covered with a softer material. There were switches on the outside of the blanket to control the heat. Mrs H had to use a needle to thread the wire through the lining.
The case made out by her son following her death was that the inner lining was made of asbestos. Mrs H said bits of the lining would come out and would end up on her clothes and skin.
Outcome of the case
The case actually failed. In particular the court could not find evidence to find that the lining of the blanket was actually asbestos.
So why is this case important?
Whist the case failed the court looked at when an employer could be liable for asbestos victims. It took a careful look at the law that was in place at the time.
Asbestos Cancer- Dangers known from 1900 onwards
It is accepted that the dangers of asbestos were known as early as 1900. In particular regulations for asbestos work were made in 1931. Factories Acts were introduced in 1937 and 1961. These laws stressed the duties on employers to reduce asbestos and other dangerous dusts to a minimum.
The court looked at how those laws should be looked at in light of knowledge now.
On balance the court did not find that this particular case could rely upon the 1931 regulations.However a section within the 1937 Factories Act was reviewed.
There were two elements to the case.
The second aspect of the law required there to be a substantial quantity of dust.
Relying on medical papers at that time the judge could not establish that there was a large peak concentration of dust from doing that job.
However the other part of the application of the act required the judge to be satisfied that the dust given off was
“of such a character and given off to such an extent as to be likely to be injurious or offensive to the persons employed.”
The judge formed the view that what needed to be considered was what was reasonably foreseeable as asbestos-related injury, not just asbestos cancer – mesothelioma. The judge disregarded other case law which helped defendants.. A copy of the judgment and longer digest can be found here
Corries have reported on similar cases and an upcoming appeal which might help asbestos victims – see here
The helpful part of the judgment
In this case the judge found that the defendant should have known by between 1946 to 1952 the asbestos was known as highly dangerous and breathing it in should be prevented. He went on to say that in a factory known to be working with asbestos it should not matter in terms of proving the case whether the visible dust was or was not asbestos. The presence of dust in the air itself triggered a duty to take precautions.
In this case the defendant did not prove that they had done so and if it had been proved that asbestos was in the lining of the blanket then the claim would have won.
What is the outcome of this decision?
Sadly for the family of the late Mrs Hawkes they will not receive any claim for compensation. However this case shows a more practical approach to asbestos cases,particularly where exposure was a long time ago. What courts have missed recently is that employers have a DUTY to make sure it cuts down asbestos dust where it can.
Clever legal arguments about how much or how dense asbestos dust should not prevent asbestos cancer victims receiving proper compensation.
What happens next?
We are currently awaiting the outcome of the Court of Appeal decision in a case of BUSSEY. That appeal will deal with exposure the 1960’s. If that case goes in the favour of Claimants then making asbestos cancer and other claims much easier in the future
Corries Director Howard Bonnett commented
“I am always dismayed to see any asbestos victim denied compensation. However the helpful part of the judgment is welcomed.
For too long now the insurance industry has been getting a windfall from defending or compromising asbestos mesothelioma cases due to technical decisions. These decisions have not properly considered the rights of the victim. Hopefully we are seeing a change in how the courts will deal with these cases in the future. Consequently I hope future asbestos victims get proper and full compensation”
Know someone diagnosed with asbestos disease in the last 3 years? Call our friendly helpful team now for a NO OBLIGATION discussion. A team member can quickly help you see if you have a claim or not. Call us now for FREE on 0800 083 7839.