Problems of Legal Causation in Mesothelioma Compensation Claims

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Scientists believe that when asbestos fibres enter the lungs it increases the chances of genetic changes taking place that in time may lead to malignant cells developing. However scientists are not entirely clear about how this process actually works and this uncertainty has led to legal problems arising when claimants seek compensation for their injuries. In particular, the degree of exposure is often a contentious issue and whether or not relatively small exposures to asbestos will give rise to legal liability.

At the heart of the debate is the lack of hard scientific evidence on how mesothelioma arises. While it is thought that the risk of mesothelioma increases in line with the quantity of asbestos fibres that are inhaled, doctors agree that inhalation of even a small number of asbestos particles can result in a mesothelioma.

A recent article in the Personal Injury Law Journal has highlighted these interesting legal issues and we thought that our clients, particularly those in Devon, Somerset and the West Country, would benefit from a summary of the current legal position.

Legal Causation in Mesothelioma Claims

As with any personal injury case, for a claimant to succeed in a compensation claim for mesothelioma they must deal with ‘causation’, which is the legal principle linking the breach of duty with the injury suffered. Because scientific understanding of the disease is so limited this can sometimes prove a particularly tricky legal hurdle in asbestos related injury cases.

The courts recognise this difficulty and have confirmed that causation will be established where it is likely that the breach of duty has led to a ‘material increase’ in the risk of developing mesothelioma.

Judges initially took the view that where more than one defendant had been responsible for exposing a claimant to a quantity of asbestos sufficient to create a ‘material increase’ in the risk of mesothelioma developing, each defendant would only be held liable for the degree to which they were responsible. This had serious legal consequences for claimants where one of the defendants was either insolvent or uninsured, because it precluded the victim from recovering all of their compensation.

Joint and Several Liability in Mesothelioma Claims

This approach was reversed by legislation. Section 3 of the Compensation Act 2006 specifies that in mesothelioma claims each defendant responsible for causing a ‘material increase’ in the risk will be held ‘jointly and severally liable’ – which is legal terminology for being liable to pay ALL of the compensation.

The Act is worded as follows:

…where—
(a) a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos,
(b) the victim has contracted mesothelioma as a result of exposure to asbestos,
(c )because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and
(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).
The responsible person shall be liable—
(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos—
(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has no liability in tort), and
(b) jointly and severally with any other responsible person.

Material Increase in Risk of Asbestos Related Mesothelioma

This gives rise to two issues
1. how much increase in risk does there need to be for it to be a ‘material’ increase (see (d) above)?
2. if there was more than one source of exposure to asbestos, do we need to compare the extent of the exposures to
determine whether that exposure caused a ‘material’ increase?

In considering the first issue, the only legal requirement is that the exposure must be ‘not insignificant’. Although experts in mesothelioma cases often controversially suggest that a risk of less than 1% is insignificant, it is for the individual judge to assess this question and evidence of even a very small amount of exposure to asbestos could be sufficient to establish a material increase in risk of mesothelioma developing.

It will also be relevant to consider the knowledge the defendant should have had about the risks posed by the exposure at the relevant time and whether they should have foreseen that the claimant was likely to be exposed to the risk of developing an asbestos-related disease. This requires a consideration of the technical literature available to the defendant at the time.

Even where expose is minimal there may be circumstances in which liability arises, such as where there are statutory regulations in place requiring employers to prevent asbestos exposure or reduce it to the lowest practical level.

Turning to the second issue, where there is another significant source of exposure to asbestos, should the courts compare the sources to ascertain whether the defendant’s wrongful exposure is by comparison with the other exposures, too insignificant to be taken into account? This could have serious consequences for the claimant if the second source of exposure cannot be identified.

The approach the courts currently take (February 2016) is that it is enough to establish that the defendant’s exposure of the claimant to asbestos fibres materially increased the risk of the victim developing mesothelioma. Judges don’t have to carry out a comparative exercise.

Claiming Mesothelioma Compensation in Devon and Somerset

So, in summary, a material increase in the risk of someone developing mesothelioma requires a review of what is to be
regarded as ‘insignificant’ exposure to asbestos. This threshold may be lower than some medical experts suggest. As things stand it is not necessary to compare exposures to ascertain whether any exposure should be disregarded.

If you wish to claim compensation for mesothelioma or an asbestos related disease then call our FREE injury helpline on 0808 139 1606 and speak to a member of our team in either Devon or Somerset.