What if I do not know which of my employers exposed me to asbestos?
Asbestos, the notorious material that has caused so much devastation in the lives of working people, was used widely in building and manufacturing processes. Generations of workers were exposed to the substance, often given little or no protection and developing serious and all too often fatal injuries later in life.
Many people exposed to asbestos may have come into contact with the material in a number of places – carpenters, for example, may have worked for several employers on different sites. In some cases, exposure to asbestos may have been indirect, as in the case of office staff working in factories where asbestos was being used.
At first, it can seem like a huge task to piece together all the places you were exposed but, with time and assistance, a definitive list can be drawn up.
Claiming compensation against several employers
The law recognises how difficult it can be to prove exactly how serious the level of asbestos exposure under each employer was and whether one particular period of exposure caused the condition. The usual position is that where several employers contributed to a worker's illness or injury, a claim can be brought against any one of them for the full amount. This can be very helpful where an asbestos injury victim is having trouble obtaining records of his employment at several jobs.
A change in the law – James Henaghan
A recent case in the High Court has made the position less certain. James Henaghan worked for six employers one after another, all of whom exposed him to asbestos. He had been employed in a variety of locations, including Trafford Park in Manchester and a Yorkshire hospital. He died after developing asbestos-induced lung cancer, and his son took on and fought his case.
The records of Mr Henaghan's employment were often unclear, making it difficult to pinpoint precisely how much each of his employers had exposed him to asbestos. He had also worked on other jobs involving asbestos but these records were even more difficult to find, and the so the claim was simply against the six that could be properly evidenced.
The Court ruled that the six employers would have to pay Mr Henaghan's family a percentage of the total compensation he would have been awarded if he had made a claim against all the employers who had ever exposed him to asbestos, not just the six.
Put simply, Mr Henaghan would not get the full amount from any one of the employers, as was the previous law – each employer would only pay a limited amount. This Court of Appeal Decision is likely to be appealed.
Why is asbestos-induced lung cancer being under-reported?
The decision will led to quite different treatment of asbestos victims who have contracted lung cancer as opposed to mesothelioma. The current law, in the Compensation Act 2006, allows a claimant to recover 100% of his damages where he or she has contracted mesothelioma. This, now, is not the case with asbestos-related lung cancer following Mr Henaghan's case.
Michelmores has been concerned for some time about asbestos-induced lung cancer being under-reported, meaning that negligence employers are escaping responsibility for exposing their workers to the deadly material. You can read our research on the effects of this problem:
Justice for asbestos victims
These changes represent a blow to asbestos victims, as it is now more difficult for an injured worker to recover the full amount of compensation to which they are entitled.
Kevin Finneran is a senior solicitor representing a number of people injured through asbestos exposure. He says:
'The tragedy of asbestos injury disease is only made worse by the fact that some of these employers, who allowed their workers to dice with death handling this material, are escaping responsibility for their actions. This is only a victory for insurers.
'Those seeking compensation face enough difficulties as it is – defunct employers, problems with obtaining evidence. We have always worked hard to get around these issues, and this judgement does nothing to help the victims get access to justice.
'One of the key principles of asbestos compensation has to be swift claims. A person diagnosed with asbestos-induced lung cancer or mesothelioma may have only months to live and should be able to recover all the compensation he or she is entitled to. This latest judgement just places another hurdle in the way.'
Permission to appeal the decision has been granted, meaning that the decision may yet be overturned.