Asbestos victims can be boosted after a Court of Appeal decision handed down yesterday. Earlier this week we reported on the case of MARKES claim and it’s impact here
The Court of Appeal judgment has opened the way for asbestos cancer victims to make claims previously denied.
Asbestos claim (1) – Hawkes
In the case of Hawkes the deceased Mrs Hawkes was exposed to asbestos from 1946 – 52. She was also exposed for a short period in 1962.This court decision looked at Section 47 of the Factories Act 1937.
In particular the judgement considered S.47 and that any court in assessing asbestos dust or fibres given must be satisfied that the dust is
“of such a character and given off to such an extent as to be likely to be injurious or offensive to the person employed”.
The judge balanced conflict between previous cases, particularly those denying compensation. The judge,in considering blame,noted what needed to be reasonably foreseeable is asbestos-related injury, not mesothelioma itself.
Defendants often rely on the case of Williams which denied compensation to a physics student following exposure in 1974.This judge noted the Williams decision where exposure is not typical and should not bind other cases.
In the Hawkes claim the judge found that the defendant should have known by 1946 – 52 that asbestos was regarded as highly dangerous. It was obvious that breathing it in should be prevented as far as possible.
Asbestos-related injury of some sort was a reasonably foreseeable consequence of exposure to asbestos dust, even at low levels of exposure.
Furthermore the judge went on to say that in a factory known to be working with asbestos, it should not matter in terms of breach of duty whether the visible dust was or was not asbestos. The presence of dust in the air triggered a duty to take precautions and to take advice.
This case is a clear indicator of the proper judicial approach to be applied in these cases.
Asbestos claim (2) – Bussey
The Court of Appeal judgement in BUSSEY reflects and supports this return to common sense. This case involved a deceased heating worker. He had been exposed to asbestos from 1965 – 1968.
In the leading judgment of Lord Justice Jackson he once again looked at conflicting case law.. The judgment can be accessed here
The judge also looked the Williams decision. He and the other judges were clear it should not apply to all asbestos cases. In addition the judge clearly confirms that referring to Health & Safety Executive guidance such as TDN 13 does not establish a “bright line” to be applied in claims. The judge clearly confirmed that a more careful approach was required. He said that is necessary to look at the information which a reasonable employer in the defendant’s position at the relevant time should have known or done. From then you determine what risks such an employer should have foreseen.
In addition the judge went on to say that making TDN13 the universal test for foreseeability in mesothelioma cases was wrong. He added that TDN 13 sets out the exposure levels which, after May 1970, would trigger a prosecution by the Factory Inspectorate. That is a consideration but it is not why or how a compensation cases should be decided..
The Court of Appeal has sensibly handed the case back down to the trial judge. The judge has clearly been given guidance. The Court of Appeal judgment should direct the judge to find in favour for the Claimant.
What will this mean for asbestos claims?
The BUSSEY case will be heard before the trial judge. We hope he will see sense and award compensation. Insurers and their lawyers will have to look again at cases they are currently denying. Our team is writing to the defendants in every case where we are fighting this argument..
The case has wider implications than just asbestos cancer. Therefore all asbestos cases will have to be reviewed. The fact that the Court of Appeal heard the case so quickly and handed down judgment in less than a months shows how important this is.
Corries Asbestos Claim Manager Howard Bonnett commented
” This second judgment is the second piece of great news for asbestos victims this week. it is a serious body blow for defendant insurers. For too long they have enjoyed a windfall from judgments which have forgotten the impact asbestos has on victims.
As a result I hope the insurance industry sits up and takes notice. It should stop denying justice to asbestos victims throughout the UK. The windfall is over – now it is time to make sure asbestos victims are put first”
If you know someone affected by asbestos disease in the last three years call us NOW. Our friendly helpful team can help you see if you have a claim. Call us FREE on 0800 083 7839.