Proving negligence in mesothelioma claims
Posted by Jeremy Horton on 22nd November 2011
Recent reports of the death of the negligence defence in mesothelioma claims have been greatly exaggerated. The recent decision of the Court of Appeal in Julie Williams (On Behalf of The Estate & Dependants of Michael Williams, Deceased) v University of Birmingham & Anor (2011) confirms that proving negligence in a mesothelioma case is not always a certainty and it reiterated the correct test to be applied.
The Claimant, as a University undergraduate, had carried out a number of experiments in the University service tunnel as a part of his degree between 1970 and 1974. Many years later he contracted and died of malignant mesothelioma of her left lung for which she/her estate claimed compensation.
The service tunnel, which had not been ventilated and was kept locked at one end, had central heating pipes running through it. The pipes were insulated with asbestos lagging which, it was agreed at trial, was likely to have been the original lagging installed in the 1930s or 40s at the same time as the heating systems. The University carried out asbestos dust tests in 2004, 2006 and 2007 and found all forms of asbestos, including crocidolite(blue), amosite (brown) and chrysotile (white).
However, the evidence was that the claimant’s actual exposure to asbestos in the tunnels would have been at a very low level and for quite a brief period; at just above 0.1 fibres/ml and for less than 80 hours in total.
The trial judge nonetheless found that the Claimant’s visits to the tunnel would have materially increased the risk of her contracting mesothelioma. On this basis she held both that this had been the cause of her mesothelioma and that in so exposing her the defendants had breached their duty of care and were liable in negligence to pay compensation.
It was argued by the Defendant, that it could only be in breach of its duty of care if it could have reasonably foreseen, at the relevant time, that permitting the Claimant to carry out experiments in the tunnel would expose her to the risk of asbestos related injury.
Further, it was argued, that the Claimant’s exposure whilst at the university was so small in comparison to other exposures of asbestos that it had to be regarded as ‘de minimis’ and could not be found to have caused her mesothelioma , even if the defendant had been negligent.
The Defendants therefore appealed the trial judge’s decision on the basis that she had applied the incorrect test for negligence and also that causation of injury had not been proved.
When considering the appeal, the Court of Appeal accepted that going into the tunnels would have materially increased the claimant’s risk of developing mesothelioma. It had only slightly increased that risk, compared to the claimant’s risk of developing mesothelioma from her exposure to asbestos in the environment generally. However, following the Supreme Court decision in Sienkiewicz, even such a slight increase was enough to prove in law that the asbestos exposure had caused her mesothelioma. (It was there held that a mere 18% increase in the risk above the background environmental risk was enough to prove a causal link).
However, the Court of Appeal found that one of the places where the judge had erred was in confusing the tests for causation and negligence in mesothelioma claims. The tests were different.
To prove that asbestos exposure at the University had caused her mesothelioma, it was enough to show merely a more than minimal increase in the risk. The Court of Appeal accepted that the judge was right to find this was established here. However, to prove negligence requires something more. This requires proof that it was reasonably foreseeable to the defendant that the claimant might be injured through her asbestos exposure. Whilst in 2011 we may well say it was reasonably foreseeable that someone might develop mesothelioma through such a minimal asbestos exposure, the judge made another error in viewing events in the 1970s through current day spectacles. In the early 1970s our understanding of the dangers of asbestos was not as great as it is now .It would not at that time have been reasonably foreseeable to a defendant like the University that someone so minimally exposed would be at risk of developing mesothelioma.
On this basis it was held that the trial judge had erred in her finding of breach of duty and the appeal was allowed.
This highlights that unlike the test for causation, the test for breach of duty has not been altered in favour of Claimants in mesothelioma cases. The Claimant still has to demonstrate that the Defendant failed to take reasonable steps to ensure that the Claimant was not exposed to a then foreseeable risk of asbestos related injury. This would not have been a problem if the claimant had been significantly exposed to asbestos in the 1970s or even earlier, but the more minimal the exposure and the further back in time that exposure, the harder this will be to prove.
If you or a family member is suffering from (or has died from) mesothelioma or any other asbestos related disease, then please contact one of our industrial disease specialists for free advice on making a claim for compensation.
