InsightsInsight - Industrial Disease Claims - POSTED: February 8 2016
A history lesson – Industrial disease claims in the construction industry
Health and safety standards within the construction industry have improved dramatically over the past 20 years or more. Yet the sector is still living with the legacy of unsafe working practices of the 1950s 60s and 70s resulting in a significant number of industrial disease claims, especially for asbestos-related disease and hearing loss.
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Asbestos disease claims
Asbestos was seen as the magic material to help in the big post-war construction boom and was valued for its insulating, heat and fire resistant properties in a wide variety of construction products. These included; asbestolux insulation sheets, asbestos corrugated cement, asbestos-based flues and pipes and asbestos lagging to plumbing and boilers.
Construction site workers who were most exposed to asbestos included; laggers, plumbers, carpenters and electricians. In fact, most tradesmen who worked on construction sites from the 1950s to 70s will have had some asbestos exposure. The potential dangers of asbestos had been known since the war, yet until the mid-1960s this was kept a virtual secret.
Fortunately, the large majority of construction workers exposed to asbestos escape without any injury at all. However, for a very unlucky minority the consequences are serious and even fatal. The asbestos fibres when inhaled cause no immediate injury, but, are sown in the lung tissue, apparently lying dormant for many years. Then 20, 30, 40, even 50 years later they can germinate into serious lung diseases. These can range from sometimes quite mild conditions, such as more minor forms of asbestosis or pleural thickening, to the fatal conditions of mesothelioma and lung cancer.
Currently, about 5,000 people a year in the UK die from asbestos-related diseases. Deaths from mesothelioma are not expected to peak until 2020. By that time 250,000 Britons are expected to have died due to asbestos exposure, many of them from within the construction industry.
It seems strange that hearing loss cases should have a long legacy. Surely noise related hearing damage is suffered at the time of the noise?
Well yes, it is. However, in reality, those suffering noise induced hearing loss are not always aware of it at the time. Often they only become aware many years later when they have started to suffer additional hearing loss from ageing. This additional age related hearing loss on top of the previous noise rated hearing loss can tip the balance so that hearing loss becomes serious enough for them to notice it. It is therefore not at all unusual for men in their 60s and 70s to become aware of hearing loss that turns out was partly caused by working on a noisy building site decades earlier.
What should you do if you are met with a historic industrial disease claim?
First, you should try to find the insurance policy you had at the time of the noise or asbestos exposure. The question about the correct insurer in asbestos disease claims was resolved by the Supreme Court in 2012 in the BAI trigger litigation. They held that insurance policies covering employers for “disease contracted” or “injury sustained” at a particular time covered employees negligently exposed to asbestos during that time, even though their symptoms did not develop until much later.
Regrettably, many employers will not have kept their insurance policies from decades earlier. However, all is not necessarily lost. In a number of cases, we have managed to locate a company’s insurers from decades earlier, for example through the Employer Liability Tracing Office or with help from an insurance archaeologist.
When the insurance policy cannot be traced, our specialist industrial disease team is experienced in advising and assisting uninsured businesses in dealing with such claims in the most economic manner possible. In some cases, especially with asbestos diseases, there may be no real defence, especially if exposure was after 1965 (when awareness of the dangers of asbestos became more public) and the disease was mesothelioma. The best advice then is usually to settle the claim as quickly and economically as possible.
In other cases, especially with many deafness claims, there may be a strong defence. Most deafness claims that start actually fail for one or both of two reasons; limitation and causation. Limitation; the claimant should have started the claim many years earlier when he ought to have realised he had noise related hearing loss. Causation; that the hearing loss does not fit the pattern for noise induced hearing loss (particularly on an audiogram) and is probably all age-related. We have successfully resisted a number of such deafness claims on such grounds.
Please contact us for further advice and assistance in dealing with industrial disease claims in the construction industry.
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