State of knowledge defence in Mesothelioma cases
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Mesothelioma claims are on the increase and indeed are predicted to peak in 2016. However, there have been a couple of recent decisions in Mesothelioma cases this year which may signal an ebb in the pro claimant position the courts had been seen to be championing for individuals seeking compensation for this terrible diagnosis.
The cases are those of Amussen v Filtrona UK Limited and Williams v University of Birmingham. Here we will look at how the courts have refined the application of the test of forseeability in assessing whether an employer is at fault for exposing an employee to asbestos by applying the test formulated in Baker v Quantum Clothing.
Baker v Quantum Clothing Company Limited
This case concerned the liability of employers in the Derbyshire and Nottingham knitting industry for hearing loss suffered by employees during the years prior to 1 January 1990.
The main issue was whether liability existed at common law in negligence and/or under section 29(1) (safe means of access and safe place of employment), of the Factories Act 1961 towards an employee who had suffered noise-induced hearing loss as a result of exposure to noise levels of between 85 and 90dB.
Mrs. Baker, worked in a Nottinghamshire factory from 1971 to 1989 and was exposed to noise. She was diagnosed with noise-induced hearing loss. Mrs Baker's case was one of a number of test cases bought against manufacturers including Quantum Clothing Group Ltd, Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd.
At first instance it was held that the standard of safety required under section 29(1) was governed by the general standard that ought reasonably to have been adopted by employers at the relevant time and that this standard did not add materially to the common law duty.
Mrs Baker appealed to the Court of Appeal against Quantum Clothing. Meridian and Pretty Polly were both joined to deal with issues which potentially affected the other claims.
On appeal, the decision reached was more favourable to the Claimant. It was held that section 29(1) set a more stringent liability than that of negligence at common law and the liability for negligence arose at earlier dates then adopted at first instance.
This higher test of safety under section 29(1) required the application of an objective test without reference to reasonable foresight. In addition, it was considered what was objectively safe could not change with time. In the alternative, if foresight was relevant it was held that by the early 1970s any employer keeping abreast of matters would have known that exposure to 85dB was harmful to some people, making the workplace unsafe and consequently an employer should do what was reasonably practicable to make and keep it safe. It was considered that the period required to implement the new standard was only six to nine months rather than the two years found at first instance.
The Court of Appeal upheld the decision at first instance that there was no breach of duty at common law during the period for which a reasonable body of opinion regarded it as acceptable to expose employees to noise in the 85dB range, and that this period ended in 1987 following the second publication of the draft Directive. The period for implementing the change was reduced from two years to six to nine months. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have a greater degree of knowledge and were liable at common law from late 1983.
The Supreme Court has then upheld the first instance decision by a majority of 3:2.
This decision is of particular importance to both insurers and employers as it closes the floodgates opened by the Court of Appeal. The decision effectively eliminates any claims from employees who were exposed to noise levels between 85 and 90 between 1 January 1978 and 1 January 1990 by applying a state of knowledge' defence.
Amussen v Filtrona UK Limited( 2011) The claimant in this case developed mesothelioma and brought a claim against her previous employer alleging that they had exposed her to asbestos at work under the Factories Act 1937 and 1961.
The claimant had worked in a factory that manufactured cigarette papers. The factory generated a large amount of paper dust. The only source of asbestos was from the lagging in the pipes that were suspended above the factory floor. The claimant recalled one occasion where she walked under the pipes when this lagging was damaged and was under repair.
The court found as a fact that her exposure was during the course of her employment in the years 1955 to 1960 and that the exposure was from the pipes.
The court recognised that it was not until 1965 that a medical paper was published recognising the link between asbestos exposure and mesothelioma.
It found that based on the standards of knowledge at the time of exposure her employers could not have reasonably foreseen the risk to the Claimant. The practices that they used were in line with the recognised practices of the day and that they had not had an opportunity to develop specialist knowledge of their own which would have highlighted the risk. The claim therefore failed.
The decision applied the reasoning seen in Baker - by finding that in a developing field of knowledge employers are to be judged by the standards at the time of exposure and not with the benefit of hindsight.
Williams v University of Birmingham and another (2011)
In this case the Estate of the late Mr Williams bought a claim against the University of Birmingham for exposure to asbestos during the time he was a student there. He had carried out scientific experiments in a tunnel underneath university buildings in 1974 in his final year as a undergraduate. The tunnel contained heating pipes that were lagged with asbestos.
Tests on the dust residue from the tunnel from asbestos in the pipes. The University admitted that Mr William would have been exposed to asbestos when carrying out experiments.
At first instance the Judge found on this basis that the University was to blame and that the exposure was not de minimise.
The University appealed against this decision. It argued that the exposure was de minimis and that this question was relevant to whether it had breached its duty of care to Mr Williams. It submitted that the court had not found that the condition of lagging in the tunnel in 1974 should have alerted the University to a reasonably foreseeable risk of asbestos related injury to people using the tunnel.
The Court of Appeal found that the test that should have been applied as to whether the University was negligent was whether it ought to have reasonable foreseen the risk of contracting mesothelioma arising from Mr Williams exposure to asbestos fibres was to the extent that it should have refused to allow the experiments to be done or take further precautions or sought advice.
It held that although there was just sufficient evidence for the court to find that the lagging was in poor condition it had not been shown on the stage of knowledge that on the level of exposure to asbestos fibres actually found by the Judge that the University ought to have reasonably foreseen that Mr Williams would have been exposed to an unacceptable risk of asbestos related injury.
The claim was dismissed.
Again, this showed the court looked to the standard of knowledge at the time the individual was exposed to asbestos rather than with the benefit of hindsight when reaching a decision as to whether they are at fault.
The decisions of Amussen and Williams are helpful in making it clear that breach of duty in mesothelioma cases is to be judged by standards at the time of exposure clearly applying the reasoning of the Supreme Court in Baker v Quantum Clothing.
However, the concept of duty of care and the standard will vary from employer to employer and industry to industry. For example the state of knowledge that would apply to a large company dealing solely with asbestos materials may not apply to a small family run company this will potentially add more uncertainty into this area of law as there is no consistent standard of care by which employers will be judged.
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