Mesothelioma: Secondary asbestos exposure

Mesothelioma

Mesothelioma is an incurable cancer that is usually caused by exposure to asbestos fibres.  Low-level asbestos exposure can cause mesothelioma and there is a long latency period of between 10 years and 60 plus years. 

Not everyone who has been exposed to asbestos fibres will develop mesothelioma. There are approximately 2,500 recorded mesothelioma deaths every year in the UK. The majority of those deaths will be due to exposure to asbestos during the victim’s employment. However, some will have been caused by secondary exposure to asbestos. 

Sources of secondary asbestos exposure typically include a wife who washed her husband's asbestos-contaminated work overalls, children (now adults) who hugged their dad when he came home from work with asbestos fibres on his clothes and those who lived near an asbestos factory.

Iris Craddock

Hodge Jones & Allen Solicitors are acting for the family of Iris Craddock. Iris developed and died from mesothelioma. Her husband was a lagger and innocently took home asbestos fibres on his clothes. 

Due to the current law, it is unlikely any damages will be recovered as a result of Iris’ mesothelioma. Her family have launched a campaign to raise awareness about the unfairness of the legal system to those who develop mesothelioma through secondary asbestos exposure.

Legal knowledge

The link between asbestos exposure and ill health has been known for over a century. Despite that, the UK heavily used asbestos materials in various industries, particularly during the 1950s to 1970s. The importation of blue and brown asbestos materials into the UK was banned in 1985 by The Asbestos (Prohibitions) Regulations 1985, but it was not until 1999 that the ban was extended by amendment regulations to include the more widely used white asbestos.

In secondary asbestos exposure cases, there is a key date of 31 October 1965 that practitioners must be aware of.

For many years before 1965, there were comments made by respected authors about the risks of asbestos exposure to health. However, these comments were in the context of contact with asbestos during one’s own employment.

It was not until a paper by Muriel Newhouse and Hilda Thompson was published in the British Journal of Industrial Medicine in 1965, that the issue of secondary exposure was explored. The authors noted mesothelioma was developing in people who lived within a relatively short distance of an asbestos factory and amongst relatives of those who worked with asbestos. The conclusion reached was “There seems little doubt of the risk of both occupational and domestic exposure of asbestos”.

On 31 October 1965, The Sunday Times referred to the Newhouse and Thompson paper and stated:

“A disquieting “new” occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work is the subject of intensive behind the scenes activity by British scientists, experts on industrial health and representatives of at least two Government Ministries” (The Times, 31 October 1965).

The Sunday Times article has been deemed to have put all employers on notice of the risk of secondary exposure to asbestos from 31 October 1965.

Significant case law

Gunn v Wallsend Slipway and Engineering Co Limited (The Times, November 1989): Mrs Gunn developed mesothelioma and died in 1986. She had washed her husband's asbestos-contaminated work clothes between 1948 and 1965.

Maguire v Harland & Wolff [2005] EWCA Civ 1: Mr Maguire was a boiler-maker and Mrs Maguire washed his work clothes until early 1965. In 2000, Mrs Maguire developed mesothelioma and subsequently died.  

In Gunn, it was held the defendants did not owe any duty of care to Mrs Gunn before 1965, as no employer before then took into account the risk of injury from exposure to asbestos in a domestic environment.

In Maguire, the issue was reconsidered by the appeal court and it was stated, “The alarm did not sound until late 1965, when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect, to asbestos dust.”

Injustice

For those who have developed mesothelioma as a result of secondary exposure, a claim for damages cannot even begin unless the asbestos exposure took place after 31 October 1965.  In some cases, that knowledge date is likely to be pushed back even further – for example, a small construction firm is likely to be allowed a further period of time beyond 31 October 1965 to implement the required systems to prevent secondary exposure taking place.  

Any asbestos exposure before 31 October 1965 (and possibly even later) will not, therefore, be considered to be in breach of statutory duty or negligent.

Even when the asbestos exposure took place after 1965, the claim has a significant risk of failure. This is because the following needs to be established:

·       The business which caused the secondary exposure is still trading and has assets to meet a judgment; or

·       The relevant public liability insurers can be identified for the period five to 10 years before the first symptoms of mesothelioma.

It is often the case that neither option will be available. There are a limited number of businesses from typically the late 1960s and 1970s that are still successfully trading today and there is no central public record of public liability policy cover to check. It should be noted that no such insurance will even exist unless the relevant defendant company still existed within five to 10 years before the date of the mesothelioma symptoms starting.

The innocent mesothelioma victim has no control over when their asbestos exposure took place, the current status of the organisation that allowed them to be exposed to asbestos or that organisation’s insurance position.

Reform

Case law is unlikely to change matters. Therefore, a scheme should be established to assist secondary victims of asbestos exposure.

It was recognised in 2014 by the setting up of the Diffuse Mesothelioma Payment Scheme (the Scheme) under the by the Mesothelioma Act 2014, that an employee who develops mesothelioma through exposure to asbestos in their own employment may not be able to recover damages if:

·       their former employer is no longer trading; and

·       the former employer’s employers’ iability insurers for the period of exposure to asbestos fibres (not five to 10 years before mesothelioma symptoms started showing) cannot be identified.

The scheme makes a payment based on the victim’s age at the date of diagnosis of mesothelioma.

Those with mesothelioma as a result of secondary asbestos exposure should have a no-fault scheme so they too can receive a payment if they cannot pursue a civil damages claim. Given the unique circumstances in which secondary asbestos exposure happened, the scheme should cover all sources of secondary asbestos exposure and for any exposure date.

Hodge Jones & Allen Solicitors are leading the way in trying to achieve justice for those suffering from mesothelioma as a result of secondary exposure to asbestos and have set up a petition for a scheme: https://chng.it/Gh4K9QKJfs 

Practice points

These cases are complex and require specialist knowledge. Key practice points to note are:

·       Establish all potential sources of exposure to asbestos;

·       Where there is secondary exposure, identify whether such exposure was pre or post 31 October 1965; and

·       Help change the injustice secondary asbestos exposure victims face by signing the petition calling for a scheme.

Lorna Webster is a partner at Hodge Jones Allen, hja.net