Asbestosis claims: implications for employers and insurers

13 March 2017

Laurence Cobb highlights the implications of a recent asbestosis claim for employers and insurers

Exposure to asbestos can lead to chronic respiratory problems and develop into dangerous forms of lung cancer such as mesothelioma; these and other diseases associated with asbestos remain one of the greatest causes of work-related death in the UK. But as our knowledge of the dangers of asbestos has grown, so has the regulation controlling the substance and the health and safety of individuals exposed to it at work. Notable among these measures are the Control of Asbestos Regulations, as amended in 2012 at the request of the European Commission.

Duty to manage asbestos

Many buildings constructed or refurbished before the use of asbestos was prohibited may contain the substance. Under the Control of Asbestos Regulations 2012, duty holders including the owner of a premises or the person with the main responsibility for its repair and maintenance have a duty to manage asbestos to prevent exposure to any that may be present and to implement a plan to manage the risk. This duty applies in relation to all non-domestic buildings, including factories, warehouses, offices and shops.

Although surveyors may not themselves be the duty holder, those with information about the construction or maintenance of the building would be expected to help them; equally, a competent surveyor could be appointed to carry out a survey on behalf of the duty holder to determine whether any asbestos is present.

 

A competent surveyor could be appointed to carry out a survey on behalf of the duty holder to determine whether any asbestos is present

Employers can also face claims from their employees in relation to asbestos exposure. In the recent Court of Appeal case Carder v the University of Exeter [2016] EWCA Civ 790, a retired electrician brought a claim against the university for asbestos exposure while working in the boiler rooms and other areas between 1980 and 1994. In fact, most of his exposure to asbestos had occurred in previous employment as an apprentice electrician in the 1950s.

The university argued that, while working there, Carder’s limited exposure to asbestos had made no discernible difference to his condition. The question before the Court of Appeal was whether it agreed with the High Court that Carder had suffered damage from further exposure at the university and was worse off to a degree that was sufficiently serious to claim damages.

Decision

It was calculated that the university had contributed to 2.3% of Carder’s exposure to asbestos, with some 97% being attributable to his employment in the 1950s. This 2.3% did not cause Carder to suffer additional symptoms, the court decided; however, the severity of the disease had been increased to a “small, albeit not measurable” extent.

Although the 2.3% figure was small, the university conceded that it was material. Asbestosis was a divisible disease, meaning that damages awarded for the condition could be divided in proportion to the different exposures. Each exposure to asbestos contributed to the development of asbestosis, so the exposure at the university had exacerbated Carder’s physical condition. Consequently, he could recover proportional compensation from the university for this 2.3%.

The sum awarded in damages was small when compared to the costs of the litigation, but it probably reflects the fact that insurers stand to lose a considerable amount if this case offers a precedent for similar cases of asbestos-related illness. From the claimant’s point of view, the decision will potentially allow Carder to seek further damages should his condition deteriorate. This is not the end of the road for the case either, because we understand that the university is seeking to appeal to the Supreme Court.

However, the case emphasises the need to be diligent regarding the consideration of risks of the presence of asbestos, because exposure to it is dangerous from a medical – and hence a legal – perspective.

Laurence Cobb is a partner at law firm Taylor Wessing

Further information

• Related competencies include Legal/regulatory compliance
• This feature is taken from the RICS Building control journal (February/March 2017)