We are seeing an increasing number of women who contract mesothelioma from asbestos and often without any occupational history of exposure themselves.
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 1997 US study 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, the women did the family laundry and shook out the contaminated clothes before washing them, breathing in large quantities of asbestos fibres in the process.
There have also been 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 means that women are at a legal disadvantage when it comes to obtaining compensation for their injury
Should Employers be held responsible for harm to the families of employees?
The defendants argued that employers could not have possibly foreseen the risk to the health of family members of workers negligently exposed to asbestos,
Maguire -v- Harland & Wolff is the leading case on this issue. 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 the issue of foreseeability of injury to Mrs Maguire by reference to the expert literature that would have been available to the Defendant up to 1965. Although they did ultimately find for the Defendant, they did so on 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 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 set the benchmark for knowledge in secondary exposure cases – after 1965, a reasonable employer should not only be able to foresee risks to employees from negligently exposing them to asbestos but also the health risks to their families from coming into contact with their clothing.
Legal Problems for Individuals
However further problems arose for the Individuals after an issue relating to insurance cover in a series of cases called Durham v BAI & Ors, known as the “Trigger” Litigation. This followed a case called Bolton v MMI which dealt with issues over public liability insurance wording. The problem arises because clothes washing cases are not covered by Employers Liability insurance, these people are not employees, but by the Defendant’s Public Liability insurance.
Although the cases involved complicated arguments of the meaning and construction of insurance policy wording the effect and implication are clear. In PL cases the insurance policy that responds to a claim is the policy in place at the time the tumour starts to develop, not the period of exposure. This is generally considered to be 10 years from symptoms. In EL cases it is the insurer on risk at time of exposure who will pay the claim.
The problem this causes is that many companies are no longer in business and if they stopped trading 10 years or more ago then there will have been no public liability insurance in place at the point of development of the disease.
The government and ABI set up the Diffuse Mesothelioma Payment Scheme as a safety net for those cases where a negligent employer was no longer in existence and their Employers Liability insurance cannot be traced however no such scheme exists for Public Liability claims.
These cases do not just involve clothes washing cases but also involve non-employees on premises where they are exposed to asbestos.
People are generally living longer and there does not seem appear to be a limit to the period of latency for mesothelioma. In one case there was a gap of over 70 years from the date of exposure before the development of mesothelioma killed my client. We are likely to see more “uninsured” cases in the future.
The obvious lack of fairness of the current position needs to be addressed by an extension to the DMPS scheme to include Public Liability insurance cases.