Please note that the following is only a general introduction to asbestos compensation law and is not intended to be used as an exhaustive guide or specific legal advice. Asbestos compensation claims can involve an arduous battle with difficult defendants and a large body of complex legal rules. You should contact one of our experienced specialist asbestos solicitors before making any decisions regarding your asbestos compensation claim. 

Asbestos compensation claims involve a claim in negligence and/or a breach of statutory duty. In claims involving negligence there are four hurdles to overcome in order to complete a successful asbestos compensation claim. For each, the claimant must convince the court or the defendant that it is more likely than not that the requirement is satisfied by the facts of their case (this is called the balance of probabilities test). 

 The four requirements that must be demonstrated in asbestos compensation claims based on negligence are: 

 1. That the defendant owed a duty of care to the claimant 

1. Employers’ duty of care towards employees in asbestos compensation claims 

An employer has a duty of care imposed by the common law and statute to take reasonable care of the health, safety and welfare of his employees in all circumstances. This means that, as far as reasonably practicable, the employer should take steps to remove risks to the health of his employees in their working environment. This can include measures such as the installation of warning signs and safety equipment, and providing safety training. 

They must take all relevant information into account in fulfilling this duty, such as (in asbestos compensation claims) the latest guidance on the safe handling of asbestos and proper respiratory protection. The requirement of reasonable care will only place an employer under a duty to take the steps that a reasonable employer would have taken in the circumstances of the case. Obviously, 40 years ago an employer dealing with asbestos would have had less information available than 10 years ago, and as such the latter could be under a duty to take more precautions than the former. 

Depending upon the circumstances of the case, a reasonable employer might place up warning signs about asbestos fibres, issue detailed instructions on the safe handling of asbestos, paint over loose fibres to seal them in, install a ventilation system, provide asbestos vacuum cleaners, install cleaning facilities, provide disposable clothing and boot covers and give out appropriate face masks. Consult an experienced solicitor to obtain advice as to what these would be in relation to your asbestos compensation claim. 

2. Employers’ duty of care towards third parties in asbestos compensation claims 

An employer dealing with asbestos may also find themselves owing a duty of care to protect other parties to whom asbestos-related harm would have been reasonably foreseeable. 

For example, after 1965 so-called secondary exposure victims of asbestos, such as the wives and children of men working with asbestos would have been exposed to fibres trapped in their overalls. Equally, men might have gone into a pub or a shop after a day at work and those fibres would have been inhaled by those around them. Depending on the extent of asbestos awareness at the relevant time, this might require a reasonable employer to take steps such as the installation of ventilation systems, or providing disposable overalls, such that the number of asbestos fibres leaving the workplace would be greatly reduced. Following the case of Maguire v Harlaand & Woolf, as a general rule such asbestos compensation claims can be successful if the exposure occurred after 1965. 

Another possible duty of care could arise in relation to people entering the employer’s property (with or without permission). Steps might be taken to reduce the loose asbestos fibres in, for example, the rubbish tip behind a construction site, so that children playing there are not exposed. Warning signs could be installed throughout the site so that all visitors would be aware of the risks and steps that they should be taking to avoid them. 

3. Other types of duty of care relevant to asbestos compensation claims 

The neighbour principle means that in any situation where a reasonably foreseeable risk of another person being exposed to loose asbestos fibres exists, a duty of care might arise. 

So for example, schools containing asbestos might owe a duty of care to their pupils to prevent them being exposed to loose fibres. Steps that they might take include preventing the use of asbestos fixtures (such as ceiling tiles) that might be easily broken by pupils, releasing fibres into the air; avoiding building work in parts of the school containing asbestos during term time; and completing the safe removal of decaying asbestos from the building. 

To find out if a duty of care exists in relation to particular asbestos compensation claims, it is important to contact an experienced asbestos solicitor. 

2. The defendant breached that duty 

‘There would be negligence if the defendant had exposed the claimant to asbestos fibres when there were reasonably practicable alternatives which would not have involved such exposure.’ Willmore v Knowsley MBC 

If the defendant, owing a duty of care to the claimant, did not take the steps that a reasonable person would have taken to fulfil that duty, they will be in breach and vulnerable to an asbestos compensation claim if the remaining two requirements of negligence are made out. 

3. The claimant suffered damage 

“A claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy.” Rothwell v Chemical Insulating Co 

It is an essential element of any asbestos compensation claim that the claimant can show some form of damage. What is required in this sort of case is that the claimant has suffered negative changes in his body giving rise to tangible symptoms. Asbestos exposure leads to a number of significant health conditions, many of which give rise asbestos compensation claims. 

1. Mesothelioma compensation claimPerhaps the most notorious of these is mesothelioma. This is a rare type of cancer that forms in the lining of the lungs or abdomen. It is almost always caused by airborne asbestos exposure. It is an aggressive, painful fatal condition. Symptoms can include shortness of breath, chest pain, weight loss and pleural effusion. On average, it can take between 20-40 years to develop the symptoms of mesothelioma after being exposed to asbestos. There is no doubt that mesothelioma constitutes actionable damage for the purposes of an asbestos compensation claim.  

2. Asbestosis compensation claimAsbestosis is scarring of the lungs caused by significant asbestos exposure, either over a long term of in short term, high intensity bouts. Symptoms include breathlessness, coughing, chest pain and tightness, and tiredness, resulting from reduced lung function. These symptoms often do not appear for many years after exposure, sometimes up to 40 years. If you suffer from asbestosis then you may be able to begin an asbestos compensation claim. 

3. Asbestos-related lung cancer compensation claim  

Asbestos-related lung cancer is a disease of uncontrolled tumors appearing in the lung. The symptoms of this condition include shortness of breath, coughing up blood and weight loss. It is responsible for more than a million deaths worldwide per year. Although it is most commonly associated with smokers, it is also caused by breathing in asbestos fibres. Exposure to asbestos increases the likelihood of someone developing this condition five-fold, and this would be enormously increased if the person exposed was or had been a smoker. Crucially, if a smoker is exposed to asbestos fibres by the negligence of the defendant, the principle of law that one must take their victims as they find them means that they will still be able to establish liability in an asbestos compensation claim (although the court may discount the damages awarded to smokers who were exposed to airborne asbestos after about 1974).  

4. Pleural plaques compensation claim  

Pleural plaques are raised areas in the lining of the chest caused by exposure to loose asbestos fibres. They usually cause no symptoms and do not lead to other asbestos-related illnesses. For this reason it is not possible to bring asbestos compensation claims for this condition in England and Wales. In the rare case that they lead to symptoms however, the requirement of damage could be satisfied (making an asbestos compensation claim possible). The presence of pleural plaques has been known to cause anxiety or depression in the victim. It is not possible to obtain asbestos compensation for such a change in the patient’s mental condition, unless it has been caused by something (such as mesothelioma) which is in itself an actionable harm, or unless it takes the form of frank psychiatric illness.  

4. The damage was caused by the defendant’s breach of duty  

“It is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause.” Fairchild v Glenhaven Funeral Services  

The final hurdle in the asbestos compensation claim is that the defendant’s breach of duty caused or materially increased the risk of the development of the claimant’s asbestos-related condition. At this stage in the case, defendants will attempt to demonstrate through evidence that they did not cause the illness. This might be by, for example, suggesting that the illness could have been caused by something other than asbestos; suggesting that the asbestos exposure suffered by the claimant at the hands of another employer was likely to have caused the condition; or that the exposure to asbestos was in such a tiny amount that it put the defendant at no more risk than that posed by the asbestos naturally present in the outdoor environment.  

The court will apportion the blame according to the facts of each asbestos compensation claim. It will depend to an extent on the illness from which the claimant suffers. In the case of mesothelioma, it is known that a very fleeting exposure to asbestos can create a risk of contracting the disease up to 60 years later. Any subsequent exposures during the latency period will not worsen the condition. It is scientifically impossible to prove which particular exposure triggered the disease once it has developed.  

Because of this, the court can consider all previous employers of the claimant responsible for putting them at risk of asbestos-related illnesses liable for the mesothelioma at issue in an asbestos compensation claim. The burden of proof will be on the claimant to establish that their employer materially increased their risk of developing mesothelioma. It will essentially require them to demonstrate that as a result of the breach of duty, they were exposed to asbestos fibres in such a quantity that it increased the amount of asbestos fibres in their lungs above background levels to such a level that they were in danger of contracting mesothelioma.  

Asbestosis by contrast is what the courts refer to as a divisible condition. This means that each asbestos exposure will make the symptoms of the condition more pronounced. For this reason, the court will only hold the employer responsible for the damages resulting from their part in the asbestos exposure. For example, if they only caused 50% of the exposure suffered by the asbestosis victim, then they will only be liable for that proportion in the asbestos compensation claim.  

The actual amounts awarded in a successful asbestos compensation claim will vary according to the circumstances of each case. To find out how much you are likely to receive if successful, click here.  

Next steps  

It is important to stress that time limits apply. An asbestos compensation claim must usually be commenced within 3 years of the claimant being diagnosed with an asbestos-related condition. The court may extend this deadline in some circumstances, but in any event it is important to act now if you are considering a claim.  

This guide provides a very basic outline of the law involved in asbestos compensation claims. The best way to find out more about any of the issues discussed is to consult an experienced asbestos solicitor. If you are concerned about any of the symptoms discussed in the damage section, you are advised to get in touch with your GP at the soonest opportunity.  

The Asbestos Compensation Claims website contains a lot more information about the process of claiming for asbestos-related illness and disease, and how Humphreys & Co. Solicitors will support you at every stage in the process. For more information on the step-by-step process, click here. To start the asbestos compensation claims process today, click here.