Asbestos Litigation

24 November 2009

Asbestos-related diseases are reported to cause over 3,500 deaths per year in the UK and claims for mesothelioma in particular have increased steadily since the 1970s.

Asbestosis is a chronic lung condition caused by exposure to asbestos-symptoms include shortness of breath. Although not directly fatal, it does affect quality of life and at its worst considerably shortens life expectancy. It also presents a significant risk of the development of mesothelioma and lung cancer. Treatment can manage asbestosis but will not cure or reverse it. Mesothelioma is a cancer of organ membranes (typically lung) almost invariably caused by asbestos exposure. The prognosis for mesothelioma is even worse than for ordinary lung cancer. The vast majority of mesothelioma sufferers will die within three years of diagnosis.

As asbestosis is a cumulative exposure disease, liability is treated like other industrial dust diseases. A party is liable if it is proven that they had materially contributed. What is 'material' will be a matter of fact for a court to decide in each case on the balance of probabilities. Where there are multiple sources of exposures, each defendant materially contributing to exposure can be expected to be apportioned a share of the damages (typically reflecting respective periods of time of exposure).

For mesothelioma the position is slightly different. Scientifically speaking, the injury could have been potentially caused by single exposure or indeed by a single fibre. However because science cannot say for certain where specifically that fibre came from, so as to avoid the situation where all mesothelioma claims fail, the law developed an exceptional lesser test for liability in the case of Fairchild v Glenhaven Funeral Service. The effect is that a party is liable if they have exposed the claimant to a material risk of injury. The situation has been slightly readdressed in favour of defendants as a result of the Barker v Corus case in which it was held that a defendant's liability ought to be in proportion to the contribution that he has made to the risk of the harm occurring. The practical effect for claimants is that mesothelioma claims will only succeed against a given defendant to the extent of their exposure. However, following the introduction of the Compensation Act 2006, any party so liable is liable jointly and severally. This means that full damages can be claimed by a claimant against any defendant albeit those liable defendants can then consider contribution claims against other potential defendants. The result is that if you have been responsible for any significant degree of exposure at all then it can be very difficult to avoid a finding of negligence.

A `fast track system` including standard court directions exists to deal with these matters expeditiously. In the Queen`s Bench Division `Fast Track` system at the High Court in London, cases are dealt with by dedicated Masters. There is a high threshold for defendants to overcome on liability before a liability trial is allowed.

With an increase in the number of asbestos claims, we are likely to see an increase in group litigation and litigation financing arrangements, such as conditional fees and after the event insurance. Additionally, it is not only front line claimants who are making claims but since cases such as Maguire v Harland & Wolff plc and Others the net has been widened to include co-workers and family members of employees exposed to asbestos.

Companies contemplating the prospect of taking on liabilities of other companies will therefore need to examine whether there is any prospect that the target company has had any interaction, even slight, with asbestos.

For more information on this subject, please contact Simon Stuttaford, Solicitor-Advocate (civil) on +44 0117 307 6924 or simon.stuttaford@burges-salmon.com.