June 6, 2013
Despite a ruling in 2011 making it more difficult to claim for asbestos exposure, sufferers of mesothelioma and their families can still get justice.
In April, we joined an international asbestos awareness campaign by creating an infographic, exposing just how real, prevalent and threatening the fibres are in British schools.
Meanwhile Professor Michael Lees, who has been campaigning for over a decade, compiled a detailed report investigating the progress (or lack thereof) made in legislation and guidance on asbestos in schools.
The report raises a number of questions about the issue, one of which stems from a specific case in Birmingham from 2011. Below I'll go into the key points of that case and how they affect many cases today.
Williams v Birmingham University (2011)
It's worth noting that from 1964 until 2011, it was considered the responsibility of the defendant to understand and foresee that a person's exposure to even small amounts of asbestos could lead to them developing mesothelioma (a form of lung cancer) in later life.
This was based on an in-depth report by Muriel L. Newhouse and Hilda Thomson from the London School of Hygiene & Tropical Medicine.
This all changed in 2011 because of the Williams v Birmingham University case:
• In 1974, Michael Williams, an undergraduate at Birmingham Uni, was required to carry out experiments in a tunnel beneath the building
• Inside this tunnel were several pipes insulated with asbestos, plus a lot of asbestos fibres on the floor
• Mr Williams inevitably disturbed this material
• In 2006, he died of mesothelioma - aged just 54
• His widow blamed the university for his death, on the grounds they ought to have known about the asbestos being down there and the dangers of low level exposure
• Leeds County Court sided with her and Birmingham University was charged
• The university later appealed and the Court of Appeal actually contradicted the original ruling
• It was explained that the university did not breach its duty, as an academic establishment like it could not have rationally foreseen the threat of asbestos exposure in that tunnel
• Lord Justice Aiken judged that the best guide on asbestos exposure in 1974 available to Birmingham Uni, was that of the workplace guidelines published in 1970
The 'safe exposure levels' in these guidelines were applicable to those working on asbestos installation/removal - Michael Lees rightly argues that these should never have been considered as a 'safety bracket' for a university to adhere to.
Making an Asbestos related claim today
In spite of what was a worrying judgment, we're still able to help mesothelioma sufferers get justice for avoidable exposure to asbestos.
Asbestos related compensation claims are complex; however in my opinion there are there are still three key factors that are in a claimant's favour:
The Government has made exceptions in legislation for mesothelioma cases
After significant pressure from campaigners, the government agreed to delay the implementation of 'no win no fee' reforms in cases that relate to mesothelioma. It was rightly felt that with the tragic shortened life expectancy of most mesothelioma victims, they shouldn't be expected to devote their time comparing different lawyer’s funding arrangements etc.
Time limits on bring a claim
Unlike most personal injury cases where you have three years from the date of the accident, it's possible to claim for asbestos related conditions even if exposure occurred many years ago. In mesothelioma claims the time limits are generally either:
• Three years from the condition being diagnosed by a medical professional; or
• Three years from the death of the sufferer in the case of a family making a claim
After so many years who to claim against?
This is a very common question. As exposure occurred decades ago it's more than likely the company or party responsible is no longer around. But it's still possible to bring a claim against a party at fault or their insurance company even where they are longer trading. With some investigation, we're often able to trace the relevant company’s liability insurer and pursue them directly.
As a last resort claims may also be made via the government using the Pneumoconiosis etc. (Workers Compensation) Act 1979.
While it may now be more of a challenge to claim for asbestos exposure post-Williams v Birmingham University, it is certainly not impossible. Nor should it prevent sufferers striving to get the justice they deserve.