New Lords ruling could put asbestos claims at risk

Workers who develop cancer from asbestos exposure will have to fight harder to prove liability.
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The Independent Online

housands of former manual workers with asbestos-related cancer have been left in limbo by a legal ruling that could prevent them, and their families, from claiming compensation.

In 1982, Peter Morris was working as a bricklayer for Tarmac Construction at the British Leyland plant in Lancashire installing a boiler. "You were lucky to have a job in those days and you never thought too much about what you were doing - you just got on with it," recalls Morris, a 70-year-old father of three who now lives in Thetford, Norfolk.

He certainly didn't give much thought to the dust he was breathing in as he used a power-saw to cut a hole in the roof to house a new chimney-stack. There was no protective equipment, not even a face mask. "It wasn't an issue then," he says.

Tragically, the dust that he breathed in was asbestos, and last November Morris was diagnosed with mesothelioma, a terminal cancer of the lining of the lungs nearly always caused by asbestos exposure.

Every year, some 1,900 people die of a disease where the average period between first exposure and developing the full-blown cancer is 30 to 40 years. It has been estimated that as many as one in 10 thermal insulation engineers, or laggers, may have mesothelioma. The numbers have yet to peak and by 2020 there could be as many as 3,000 people every year dying from the disease.

Employers - and, above all, their insurers - face a huge bill for compensating the victims of the disease and their families. While pay-outs for a condition that brings a quick and agonising death are not large - perhaps in the region of £150,000 for the family of someone dying in their early sixties - the insurance industry has been unnerved by the ongoing threat.

Four years ago, a group of insurers launched a landmark legal challenge, where it argued that the cancer could be triggered by a single asbestos fibre and therefore, where there was more than one employer, a victim could not prove liability. They further argued that responsibility could not be shared because cancer was an "all or nothing" disease.

It had been thought that the Law Lords had comprehensively rejected such arguments in 2002. However, the argument was successfully resurrected, in part at least, in a case on which judgement was given last month.

Families blighted by the cancer, campaigners, trade unionists and politicians were appalled by a ruling of the House of Lords in the case of Barker v Corus, holding that mesothelioma victims would have to seek damages from each individual employer proportionate to the level of exposure. This effectively slashes compensation payouts where it might not be possible to sue all employers.

About half of all cases involve more than one employer. Many companies have gone out of business and lawyers report that insurers are notoriously difficult to trace in their absence. "Of every hundred mesothelioma victims, 20 cannot sue because all of the employers that exposed them have gone bust, and no one can find the insurers," says Anthony Coombs, a solicitor who specialises in asbestos-related cases. "Another 30 cannot sue all of their employers for the same reason. It is unfair to punish the victims, when the insurers who took the premiums are still there, hidden behind the employers that have gone bust."

At the end of last month, John Hutton, Secretary of State for the Department of Work and Pensions, promised to amend the Compensation Bill to make employers "jointly and severally liable" - in other words, enabling a mesothelioma sufferer to recover full compensation from any employer.

Adrian Budgen, a specialist lawyer at the Sheffield firm Irwin Mitchell, which represents several hundred victims of the disease, welcomes the response. But he adds: "It has been a difficult time and a period of great uncertainty for my clients. We still don't know whether the Compensation Bill will have a retrospective effect."

To their credit, insurers have distanced themselves from the controversial ruling despite being obvious beneficiaries. "The Association of British Insurers believes that the judgement should be overturned," says Stephen Haddrill, its director-general. "We agree that action by the Government is needed to ensure fair treatment for mesothelioma."

'Employers did know about the health risks'

Barbara Eason lost her 62-year-old husband, Michael, on 4 April last year to mesothelioma. She fears that her claim for compensation is caught up in the confusion following the latest legal ruling.

Michael spent nine months working on a power station in 1966 as an instrument maintenance technician when he was first exposed to asbestos.

"People often say that employers didn't know about the risk, but they did - we were the ones who were ignorant," she says. "The workers never had masks."

What Barbara wants now is a quick end to her fight for redress. "Compensation will never bring Mike back," she says. But mesethelioma victims and their families are angry that they have had to waste what little remains of the sufferers' lives quibbling with insurers over money.

Eason adds: "Different people die of different cancers, but mesethelioma is different. The agony that Michael had to go through was horrendous, but it could have been avoided if employers and industry shared what they knew."

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