Abstract
Part I. The common law
Mesothelioma is a killer, 3000 deaths a year in UK. Mesothelioma has the quality of a silent killer, as it manifests itself at a very late stage, usually when it is too late. The cause, or one of the causes, appears to be the inhalation of asbestos dust. This dust may be found in the atmosphere generally, and in the workplace, depending upon the construction of the building and the nature of the activities carried on there. The process towards malignancy, cancer of the pleura, can take many years, almost a lifetime in some cases. Medical and scientific experts believe that the dust leads to a change in the cells, and inhibits the naturally resistant cells. In the normal run of court cases, the claimant seeks to prove negligence on the part of the employer or other defendant, that he has suffered injury or damage, and that that injury or damage was caused by the negligence. The claimant must prove his case on the balance of probabilities. Mesothelioma presents a big problem. The claimant, victim, employee, patient, deceased, whoever, can prove the presence of asbestos and the negligence of the defendant. But proving cause and effect presents a real stumbling block. Over the years, often many years, the claimant has been employed by a succession of employers, some of whom exposed him to asbestos, some of whom were negligent, some of whom employed him for a long period and some for a short period. Asbestos was very widely used in a multiplicity of ways in the 1960s and 1970s, and the consequences have lingered on. Even if the presence of asbestos can be proved, it may not necessarily have been the cause of the mesothelioma.
Therefore, the judges created a special rule for such cases, namely that if the claimant could prove negligent exposure to asbestos by the employer the claimant is entitled to damages, each and every employer being liable for the entire amount of the damages. Each of these employers increased the risk of mesothelioma, so all must bear the responsibility. The three House of Lords and Supreme Court cases are Fairfield v Glenhaven Funeral Services [2002] UKHL 22, [2003] 1 AC 32; Sienkiewicz v Greif UK [2011] UKSC 10, [2011] 2 AC 229; and Durham v BAI (Run Off) [2012] UKSC 14, [2012] 1 WLR 867, paras 3–6. This leaves the employer seeking to escape liability by having to prove that there was no asbestos or that he took all reasonable steps to protect the employee. For example, he was aware of the possible problem, he took professional advice, he carefully removed all asbestos, or he sealed off any asbestos, he installed a safe system of work, everybody was trained and warned about the possible risk, protective clothing was provided, all safety measures were supervised and enforced, and so on.
The defendant may be able to set up a successful defence. The asbestos mesothelioma claim will not necessarily inevitably succeed. In 1974, the claimant, now deceased, carried out scientific experiments in an underground laboratory when a university student as part of his studies. The laboratory contained central heating pipes lagged with asbestos. Many years later, the deceased died of mesothelioma caused by asbestos dust. The university successfully argued that having regard to the state of knowledge in 1974, they did not and could not have reasonably foreseen the risk and there was no evidence to show that they had accordingly negligently increased the risk (Williams v University of Birmingham [2011] EWCA Civ 1242).
Mere risk
The claimant was negligently exposed to asbestos. As a result of the presence of asbestos fibres in his lungs, he developed pleural plaques. But there was no mesothelioma, merely a future risk. He became ill with anxiety and depression. His claim failed, he had suffered no foreseeable damage (Grieves v FT Everard and Sons [2007] UKHL 39).
Apportionment
Although the claimant may and probably will sue two or more defendants, he can recover full damages from any of them. One may have ceased trading and wound up, or gone into liquidation, whatever. The liability among the defendants is joint and several. The claimant obtains judgment for the damages in full against all of them. The defendants must either agree amongst themselves or the judge will apportion the damages (Compensation Act 2006 s 3). The criteria to be applied are likely to include the respective lengths of the employment and the relative culpabilities. For example, the greater the presence of asbestos, the greater the inhalation and the greater the risk from the exposure.
The expert
The role and usefulness of the medical or scientific expert in mesothelioma cases are necessarily limited. The expert seeks certainty, and there is none here; he should not resort to speculation, which anyway will be superfluous. The judge is concerned with making a decision, based on the balance of probabilities. The current state of medical and scientific knowledge, as presented to and seen by the judges, is set out in Sienkiewicz paras 6–20 and 72–89, and the annex to Lord Phillips, including reference to Occupational, domestic and environmental mesothelioma risks in Britain, Peto and Rake, Health and Safety Executive, 2009. Meanwhile, research and experience in medicine and science may in due course help us to understand mesothelioma, to understand the causes, to diagnose early and to devise preventive treatment.
Insurance
The employer is required by law to insure himself against liability to the employee (Employers' Liability (Compulsory Insurance) Act 1969), and many defendants are under a public liability insurance obligation. The mesothelioma syndrome has presented a big challenge for employers and insurers. The incidence and extent of potential liability are serious; the damages, for example for the death of a breadwinner, can be high; one of the employers may find himself liable for all the damages, the other employers being insolvent or non-existent. The insurers, carrying the risk for the employers, have been alarmed. Because of the uncertainty, they have raised the premiums; and they have sought to say that their policies, carefully worded as always, did not cover the mesothelioma risk (Durham). The judges have blocked this escape route for the insurers (Durham). But employers and others potentially liable must in future clearly ensure that the policies they take out do in fact cover the risk, and do not exclude mesothelioma. Advice will be needed from professional and trade bodies and from appropriately qualified and experienced solicitors.
Part II. Statute
Mesothelioma Act 2014
The mesothelioma problem has long been recognised. The victim was exposed at work to asbestos, and many years later, even 40 to 50 years later, developed asbestos poisoning, diffuse mesothelioma and died within a year of diagnosis. There is no cure. Research into the problem has not been well funded or intensive or productive. However, efforts by the National Institute for Health Research, the Department of Health and the Association of British Insurers have been improving the situation, and over £2m was raised in 2012–2013. By the time the diagnosis is made, recollection has dimmed and records have been lost, so that the victim or his dependants cannot trace or identify an employer or insurer to sue for negligence, and breach of statutory duty, and, even if they can, causation and proof present a formidable challenge. See the Employers’ Liability Tracing Office. The employers were obliged to carry employers’ liability insurance, under the Employers’ Liability (Compulsory Insurance) Act 1969. The victim and his dependants have had to rely upon social security. It is believed that some 24,000–28,000 people may be in this category, and it may be many more.
The statutory solution is to take the form of a levy upon insurers in the employers’ liability market and an appropriate distribution of lump sum payments by the insurance industry under the Diffuse Mesothelioma Payment Scheme. The Scheme came into effect upon royal assent. For the lump sums payable to the victim and the dependants under the current statutory scheme see the tables in Mesothelioma Lump Sum Payments (Conditions and Amounts) Regulations 2015, amending SI 2008 no 1963 and SI 2014 no 868.
Eligibility, s 2
The criteria for eligibility:
A relevant employer negligently or in breach of statutory duty caused or permitted exposure of V to asbestos, V was first diagnosed with the disease on or after 25 July 2012, V has not brought a civil claim against an employer or insurer, An employer or insurer cannot be found or no longer exists or for any other reason, and V has not received nor is eligible for damages.
The new scheme is very much a scheme of last resort, after all attempts to secure compensation from employers and insurers have failed.
Administration, s 7
The scheme will be administered by an outside company as administrator on behalf of the Ministry of Justice.
Payments, s 4
Payments to V or his dependants will be 75% of what would have been awarded in a civil action. The age of the victim will be relevant. Two or more dependants will apportion the award. It is estimated that some 300 victims or their dependants will succeed each year, and receive on average some £100,000 in payments. There may be conditions regarding the use of the money.
Evidence and procedure
Appropriate time limits will have to be observed (s 5) and evidence produced (s 5).
Review, s 6
A dissatisfied victim may always ask the Administrator to review any decision, and take the matter to the First Tier Tribunal. Arbitration is a possible alternative.
Dispute, s 15
If the Administrator thinks that the victim should sue an identifiable employer or insurer and that employer or insurer disputes this, then an independent Technical Committee will resolve the dispute, their decision being binding subject to judicial review.
Pay back, s 11 and schedule 1
Any state benefits received by the victim before an award under the new scheme will have to be paid back or deducted from the award, “clawback”, so as to avoid double payment.
The levy, s 13
The scheme involves a levy upon all active employers’ liability insurers, 3% of the yield of the premiums, which will produce enough to meet the claims awarded by the administrator. Some £17 m is expected to be raised in this way for the fund over four years, and at that point the scheme will be reviewed.
Part III. No win no fee
With the withdrawal of legal aid from personal injury cases some years ago, the “no win no fee” or conditional fee arrangement came into operation. If the claimant won, the lawyers got a bonus; if the claimant lost, the lawyers bore the risk. Insurance was taken out against the potential loss, known as after-the-event insurance. The winning lawyers received an additional “success fee” and the re-imbursement of the insurance premium from the losing defendant. This system led to an increase in the costs of litigation, and accordingly was abolished by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 ss 44 and 46. The no win no fee arrangement can continue, but not so as to impose any additional burden upon the defendant. The losing defendant now pays 10% more in damages, e.g. the Judicial College guide figure £77,000 for mesothelioma instead of £70,000 as before, but no success fee or after the event insurance premium. The claimant himself will pay the success fee to the lawyers from his damages, normally at 25% uplift of costs. Mesothelioma cases were temporarily exempted from the new arrangements (LASPO s 48) until July 2014 but now fall under the normal current system. See Under Secretary of State for Justice, Westminster Hall, 29 January 2014.
Under the Mesothelioma Act 2014 s 10, the administrator is empowered to assist a claimant in a mesothelioma claim by means of the specific pre-action protocol, the portal, disclosure of records and fixed costs.
Postscript
The employer negligently allowed his employee to come into contact with asbestos, and as a result, the employee contracted mesothelioma and died. His estate recovered damages. The wife, now a widow, used to wash his clothes and as a result she also came into contact with asbestos and contracted mesothelioma, and although still alive her expectation of life was much reduced. She claimed damages for the lost years of life and dependency. She succeeded, because it was reasonably foreseeable by the employer that all that had happened could or would happen, as it did. She would have enjoyed the benefits of being the wife and widow of her husband for longer but for the negligence of the employer (Haxton v Phillips Electronics UK Ltd [2014] EWCA Civ 4).