Posted on 5th May 2016
The recent case of the mother of a former steelworker from Scunthorpe, who succumbed to mesothelioma after being exposed to asbestos from washing her son’s dirty work clothes, highlights the dangers of indirect, ‘secondary’ exposure to the toxic dust.
In a statement she made before her death, the victim, Ms Doreen Wilson, described how her son came home from the steelworks, where he worked as an apprentice electrician in the 1980s, covered in dust which would be stuck to his hair and get into the pockets of his clothes, and transfer onto the furniture in their family home. A typical example of how a family member of a person who worked with asbestos could be exposed to the substance.
A 1989 study (Huncharek et al “Domestic asbestos exposure, lung fibre burden, and pleural mesothelioma in a housewife”) suggested that “household contamination could result in “bystander” exposure levels similar to those found in the industrial setting.” In other words, living in a contaminated household can be as dangerous as actually working with asbestos.
Though women are perhaps less likely to have worked in the traditionally male-dominated heavy industries where direct exposure to asbestos was commonplace, they are at high risk from secondary exposure. One US study from 1997 found that nearly half of the women who had contracted mesothelioma had suffered exposure due to household contact with individuals who worked with asbestos. Typically, these women did the family laundry and shook out the contaminated clothes before washing them, breathing in large quantities of asbestos fibres in the process.
Cases have been reported of wives contracting the disease from hugging their husbands as they came home from work, or of children who have been exposed from sitting on their father’s lap after he returned from work.
The indirect nature of the exposure also means that women are at a legal disadvantage compared to men when it comes to proving a company or companies are responsible for their asbestos exposure.
Whether employers should be held responsible for harm to the families of employees in these circumstances is an issue that has been furiously litigated by employers’ liability insurers. The insurers have argued that employers could not have possibly foreseen the risk to the health of family members of workers negligently exposed to asbestos, especially in the 1960’s and 1970’s, when most of this exposure would have taken place and when they contend the risks of asbestos were ‘not widely known’.
The leading case on this issue is the case of Maguire -v- Harland & Wolff, where the claimant Mrs Maguire, who contracted mesothelioma, alleged that her exposure was caused from washing her husband’s clothes. Her husband had worked for the Defendant from 1960 to 1965 and it had been accepted by the Defendant that he had been negligently exposed to asbestos.
The Court considered this issue of foreseeability of injury to the Claimant by reference to the expert literature that would have been available to the Defendant up to 1965. While they ultimately did find for the Defendant, they did so in the basis that it was only after the publication of a report on the risks of secondary exposure by Newhouse & Thompson in late 1965 that knowledge could be imputed to the defendant. This study recognised that mesothelioma developed not only among those who worked with asbestos, but also identified non-industrial exposure to asbestos dust as a potential trigger for the disease.
The impact of this study spread beyond the industry into the public consciousness as a result of an article published on the front page of the Sunday Times on 31st October 1965 which publicised this research under the dramatic headline, “Scientists track down a killer dust disease”, stating, “A disquieting “new” occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work is the subject of intensive behind-the-scenes activity by a British scientist”
Maguire therefore sets the benchmark for knowledge in secondary exposure cases – after 1965, a reasonable employer should not have only be able to foresee risks to employees from negligently exposing them to asbestos but also health risks to their families from coming into contact with their employees. They should certainly have foreseen the risks to Mrs Wilson, whose son was allowed to be exposed to the dust in the 1980s, well after the ‘watershed’ year of 1965.
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