Skanska Construction UK Limited agreed to settle a claim for damages following the death of an ex-employee from
asbestos related cancer. However they then attempted to postpone payment of the £82,000 compensation because a legal technicality, which may be due to change in the coming months, could reduce the amount they have to pay. However the Court decided that as the law stands, they must make the payment.
Daniel Easton, specialist asbestos solicitor in the Industrial disease department at Leigh Day & Co. represented Mrs Isolene Clarke, sister to the late Mr Kenneth Simpson. Mr Simpson worked as a “burner” dismantling old boilers and pipe work that was lagged with
asbestos. Mr Simpson experienced heavy exposure to
asbestos dust in his work with various employers, and as a result developed
mesothelioma, a fatal asbestos related cancer. He died in July 2002. Mrs Clarke nursed him through his illness.
At the moment,
mesothelioma is regarded as an 'indivisible disease', meaning that it can be caused by just one or a few asbestos fibres. So if somebody is exposed on more than one occasion, it is not possible to determine which exposure caused the disease (it cannot be 'divided up').
The House of Lords ruled that where it could be demonstrated that an employer had significantly contributed to someone's
asbestos exposure, this was sufficient to establish a causal link between the exposure and the onset of the illness.
Mesothelioma victims can get their compensation from one company, even if they exposed by many employers
This means that, as the law stands,
mesothelioma victims who were exposed to asbestos by more than one source can get the full amount of their compensation from one company. This reasoning was used in the decision made in the House of Lords on the
Fairchild v Glenhaven Funeral Services [2003] case.
However, this same issue is set to go before the House of Lords again in March 2006 in the case of
Barker v St Gobain Pipelines plc. In that case, St. Gobain Pipelines will argue that damages in
mesothelioma claims should be shared between various employers where more than one employer has exposed the victim to asbestos. So if there are 2 employers, each company would pay 50% of the compensation. However, often in these cases, employers have gone out of business and no insurer can be found. This means that, if successful,
mesothelioma sufferers might only receive a fraction of their full damages award.
In Mrs Clarke’s case the court agreed that Skanska Construction UK Limited did have to pay the £82,000, even though Mr Simpson was also exposed to asbestos with other employers.
However, Skanska Construction UK Limited are allowed to appeal against the decision pending the House of Lords decision in the Barker case next March.
So although Mrs Clarke will receive the full £82,000, there is a chance that she will have to pay some of it back if the House of Lords changes its stance on
asbestos compensation payments.
Mrs Clarke’s solicitor,
Daniel Easton, comments on the decision:
"The principle that full damages are recoverable from one defendant for an indivisible disease where there are potential multiple defendants has been established for decades. The House of Lords decision in Fairchild simply affirmed that principle and has provided certainty in the law for mesothelioma sufferers.
"Where there is more than one defendant in a claim, if at all possible, we will proceed against all of the viable defendants to strengthen the claimant’s claim. However in this particular case, some of the other employers had gone out of business and we were unable to trace them or their insurers. The safest course of action in this claim, without increasing the legal costs of the action unnecessarily was to proceed against just one employer.
"Mesothelioma is a devastating disease and all those who are connected with it would undoubtedly side with the law as it stands at the moment – that full damages are recoverable when it can be established that a defendant has significantly increased the risk that somebody would develop mesothelioma. The insurance industry have been attacking the Fairchild judgment ever since it was handed down in 2003. We hope that the House of Lords will see fit to maintain the certainty of the law relating to indivisible diseases as it has stood for many years."
For more information or to discuss a possible claim please contact Daniel Easton on 020 7650 1200.
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