A history of asbestos cases and landmark litigation
Past, but Present
The history of asbestos continues to leave a devastating legacy. Thompsons Solicitors has run, and won, more asbestos disease compensation claims than any other firm. We brought the first-ever successful asbestos disease claim in the House of Lords in 1972, with the backing of trade unions, and have been involved in many of the test cases since. As this timeline of key litigation shows, insurers have fought cases tooth and nail, leaving a significant impact on the UK’s legal system. But more importantly, asbestos has cost the lives of countless, innocent workers and their families who shouldn’t have been put at risk in the first place.
“Sickness of the lungs” in slaves who wove asbestos into cloth
Asbestos is a naturally occurring mineral, which can be found on every continent in the world. Its use dates back to ancient times, with Egyptian mummies being wrapped in asbestos cloth, and some cloths from Roman times being found to contain asbestos fibres woven into the material.
Even some Stone Age artefacts have been found to contain asbestos fibres. However, even in ancient times, there was a link noted between the use of asbestos, and respiratory disease, with the Greek geographer Strabo noting a “sickness of the lungs” in slaves who wove asbestos into cloth.
Asbestos becomes a critical part of the Industrial Revolution
Asbestos continued to be used throughout the Middle Ages, with Marco Polo recalling the wonders of a cloth that would not burn in 1280, but it did not really come to prominence as a building material until the late eighteenth century, when industrialisation on a vast scale started to exploit the unique properties of asbestos. It is a material that is resistant to heat, water, rust, and electricity. It has excellent insulating quantities, and most importantly it can be crushed to a powder to mix with water to form a paste, woven into cloth, or mixed with cement to form hardened materials. Because it could be easily mined and transported, its use grew exponentially, and it became a critical component used in the Industrial Revolution and beyond.
Increase in number of deaths among workers working closely with asbestos
With the growing use of asbestos, the associated health effects became more prominent. In the early 1900s, social historians and factory inspectors started to note the increasing number of early deaths and serious respiratory diseases in areas and among populations working closely with asbestos. These effects were reported in the annual HM Factories Inspector reports of the day.
First death related to asbestosis is officially reported
In 1924, the first death related to asbestosis was officially reported. An English doctor, with an interest in disease amongst the textile workers, performed a post mortem examination on the body of a deceased 33-year old woman, who had been working in an asbestos textile factory. The post-mortem revealed extensive fibrosis and lung damage as a result of her working conditions.
Asbestosis is described in South African mine workers
Asbestosis was described in lung tissue from South African mine workers by F.W Simpson in the British Medical Journal.
The use of asbestos continues to rise in Britain
The use of asbestos continued to rise, as Britain fought the Second World War, and in the homes and buildings in the post-war era. Asbestos was used as filters in gas masks during the war, and had many uses in Forces’ buildings and equipment. In the post-war era, asbestos was used as insulation in new schools, offices, hospitals and homes. Industry continued to use asbestos widely for insulation, friction products, soundproofing, fire-proofing and construction. The use of asbestos was widespread in factories, power stations, steelworks, railways, ship buildings, car repair garages and mills. The use of asbestos was wide and varied, ranging from being a component of black toilet cisterns, to being sprayed onto columns for fireproofing, mixed into artex plaster, or applied to railway carriages or boilers as insulation. Asbestos use was endemic across Britain.
Asbestos Industry Regulations 1931 are established
Due to an increasing number of reported deaths and serious respiratory illness connected to asbestos exposure, regulations were established in the workplace to limit workers’ exposure to asbestos, in the hope that this would reduce the level of asbestos-related disease. These regulations – the Asbestos Industry Regulations 1931 – apply only to workplaces where asbestos is knowingly being processed i.e. woven, milled, mixed or otherwise utilised to make asbestos products.
J.C Wagner’s “Diffuse pleural mesothelioma and asbestos exposure in the North West Cape province” paper is published
The South African government appoints JC Wagner of the Pneumoconiosis Research Unit to produce a report that for the first time makes it clear there is a risk of cancer for anyone who comes into contact with asbestos products before, during or after manufacturer.
The Factories Act 1961 is introduced
With the increasing use of asbestos, factory inspectors started to raise concerns about the level of dust and noxious fumes in the workplace. The Factories Act 1961 places controls on employers to reduce and control any dust emissions, including asbestos dust, which were visible in the air. At this point, employers should have started using easily available dust controls, such as extraction equipment, ventilation, respirators or masks, or simply dampening down the dust with water to prevent it from being breathed in.
Newhouse and Thompson publishes report that will make employers take action
1965 was a watershed moment in the history of asbestos, and the knowledge of its dangers. Newhouse and Thompson published a report, “Mesothelioma of the pleura and peritoneum following exposure to asbestos in the London area”. In that report, the scientists explained that they had researched the high number of deaths
still occurring amongst workers in the asbestos industry, and concluded that there was no safe level of exposure to asbestos before workers became at risk of developing mesothelioma, the deadly cancer caused by asbestos.
Prior to this report, the assumption had been made that minimal exposure to asbestos was ‘safe’. After this report, employers knew, or should have known, that in failing to prevent their employees from being exposed to asbestos, they were increasing the risk of those employees developing a terminal cancer many years later. The report received wide publicity, and was extensively covered in The Times newspaper. Even today, we use this date as the ‘cut-off date’ by which all employers should have been taking steps to minimise their employees’ exposure to asbestos.
Thompsons Solicitors brought the first-ever successful asbestos-related disease claim at the House of Lords
The House of Lords considered at what point an injured person was to be deemed to have become aware of his injury so as to start the limitation period in a case brought by Thompsons Solicitors.
A claim is made against J W Roberts Limited
Mr Margereson and Mrs Hancock made a claim against the firm J W Roberts Limited, for contaminating the area in Armley, Leeds. J W Roberts manufactured asbestos textiles, and was part of Turner & Newalls, also known as T & N Limited. The company owned and operated a number of asbestos factories in the twentieth century, which have all left their mark on their surrounding communities. However, T & N had always argued that they did not know, and could not have known, that the levels of asbestos dust that were escaping into the communities were capable of causing injury to the residents of that area, and in particular of causing mesothelioma.
Mr Margereson and Mrs Hancock fought to prove that the company did in fact know of the harm they were causing to the residents of Armley, and that the company should be held responsible for that harm. Very sadly, both Mr Margerson and Mrs Hancock died before their cases could be decided by the House of Lords. Ultimately, J W Roberts, and T & N, were found liable for the harm caused in the community after it was unequivocally established by documents from the 1920s that the company knew it was contaminating the area and that residents were falling ill as a result. The areas around T & N factories are still feeling the devastating effects of this contamination today. A fund has now been set up by T & N to compensate victims of their negligence who are still being diagnosed with asbestos-related disease as a result of the company’s actions. [Margereson v J W Roberts Limited; Hancock v J W Roberts Limited]
The use of asbestos is finally banned
Although the importation of blue and brown asbestos, crocidolite and amosite, was banned in 1985, the use of white asbestos, chrysotile, had been permitted to continue, typically in friction products such as brake pads. It had been argued by the asbestos industry lobby that white asbestos was ‘safe’. However, in the face of incontrovertible evidence that white asbestos was still dangerous and posed a risk to health, all asbestos was finally banned in the UK in 1999.
Thousands of tonnes of asbestos remain in public buildings, schools, hospitals, offices, factories and homes built before that time, and still poses a risk to employees and inhabitants of those buildings today.
Thompsons established that the Asbestos Industry Regulations 1931 apply to all general factory processes
Mr Jeromson’s case, pursued by Thompsons Solicitors, was brought under the Asbestos Industry Regulations 1931. Mr Jeromson argued that the Regulations applied not only to the asbestos industry, but to any industrial premises where raw asbestos was being processed or manufactured. This was an important point, as many industries used asbestos exposing employees to asbestos when it was being mixed into paste, or being swept up at the end of a job.
In winning the case, Thompsons established that the Regulations had a much wider application and applied to general factory processes and products using raw asbestos.
Mesothelioma claimants will receive 100% of their damages if they can show that any one of their employers exposed them negligently to asbestos
Mr Fairchild had been employed by a number of employers, and each had exposed him to asbestos. In most personal injury claims, the responsibility for paying damages is divided between the employers according to their respective share of the exposure. In mesothelioma, some people only require a small amount of asbestos exposure and go on to contract the disease, and others have huge exposures and do not suffer. The insurers of those companies sought to argue that, because Mr Fairchild couldn’t prove exactly when he inhaled the fibres that caused him to go on to develop mesothelioma, he was unable to prove which employer was responsible for his illness, and therefore shouldn’t recover damages.
This was a hugely cynical move by the insurers exploiting the fact that if the insurers had been successful in their arguments, it would have effectively barred anyone who was exposed to asbestos with more than one employer or over a period involving more than one insurer from claiming damages. The case went to the House of Lords, where it was found that provided a Claimant can show that any one employer exposed them negligently to asbestos, and therefore increased the risk of developing mesothelioma, they would recover 100% damages from that employer.
Thompsons wins landmark case for South African Miners
Using our expertise of asbestos litigation and the test cases we had run, we helped South African miners and their families to win a landmark £45 million settlement in 2003 from companies that had exploited their labour throughout the apartheid years. Despite knowing the dangers of asbestos, mining companies continued to excavate the mineral, exposing thousands of miners and their families and condemning them to asbestos-related diseases and terminal cancer.
At the end of the apartheid, the companies closed their mining operations hoping to slip away. However, Thompsons worked with South African lawyers to hold them accountable. Together, we pursued the mining companies and forced them to face their liabilities, and we helped them to set up a law firm to process asbestos claims to the trust fund that was established.
Mesothelioma claim on behalf of Mrs Maguire, who had inhaled asbestos dust from her husband’s work overalls, establishes 1965 as date of guilty knowledge for secondary asbestos exposure
One of the many worries for people who have been exposed to asbestos is the effect that this may have on their families, particularly if they have unwittingly put their loved ones at risk of developing an asbestos- related disease. This was illustrated by a claim brought on behalf of Mrs Maguire. Mrs Maguire’s husband had worked for many years in the docks for Harland and Wolff Plc, and during the course of his work was heavily exposed to asbestos. The asbestos dust contaminated his overalls that he brought home each night and that Mrs Maguire would shake off in their kitchen, before hanging them up ready for work the next day. Mrs Maguire developed mesothelioma as a result of inhaling asbestos dust from Mr Maguire’s overalls.
It was found by the Courts that, after 1965 and the publication of the Newhouse and Thompson report, employers should have been aware that even very small exposures to asbestos dust were capable of causing an asbestos-related disease, and that workers carrying asbestos dust home on their overalls would put their families at risk of developing mesothelioma. The court accepted that by 1965 employers should have taken steps to minimise the dust taken home, by offering laundry facilities, or replacement overalls, in addition to reducing the levels of asbestos dust in the workplace. [Maguire v Harland & Wolff Plc]
The Compensation Act is passed
Having lost the case of Fairchild, and now being responsible for 100% damages in mesothelioma cases, even when they were not the only exposers, the employers and insurers decided to attack asbestos sufferers from another angle. In Mr Barker’s case and the related appeals, there were multiple employers, and they took a claim to the House of Lords, arguing that each insurer should only pay Mr Barker a proportion of his damages, according to the percentage share of the exposure for which each employer was responsible. The House of Lords found in the negligent employers’ favour and hundreds of injured people whose former employers were defunct and insurance cover could not be found, overnight faced the possibility that they would no longer recover full compensation for their injuries.
However, thanks to the swift intervention of the trade unions, asbestos victim support groups, and Thompsons Solicitors, participated in coordinating the response to this attack on mesothelioma victims and their families, the Compensation Act 2006 had a clause inserted restoring the principle that all employers are jointly responsible for the exposure causing mesothelioma. Now the rights of all mesothelioma sufferers to recover 100% of their damages are enshrined in statute. [Barker v Corus UK Limited; Compensation Act 2006 s3]
Change in the law to pursing a claim for pleural plaques in Scotland
The insurance industry turned their co-ordinated attack on the rights of innocent asbestos victims on to sufferers of pleural plaques. Pleural plaques are areas of scarring on the lungs, which whilst not causing any disability themselves, and particularly not causing breathlessness, pain or a cough are markers of heavy exposure to asbestos. Many people, when told they suffer with pleural plaques become increasingly worried about their health, particularly if they develop a cough or chest pain. Pleural plaques sufferers are also known to be at an increased risk of developing mesothelioma, asbestosis, diffuse pleural thickening or asbestos-related lung cancer, because of their previous heavy exposure to asbestos. Typically, a pleural plaques sufferer would obtain immediate damages of around £5,000 to £7,000 by the time of judgement but more importantly, would obtain an Order from the Court holding their employers responsible for negligently exposing them to asbestos dust, and allowing them to return for further damages if they went on to develop another asbestos-related disease.
In 2007, a long-running claim involving both Thompsons Solicitors and trade unions, reached the House of Lords. After several days of legal argument, the House of Lords decided that pleural plaques could not properly be classed as an “injury” as they did not cause any symptoms, and even when put together with the worry they caused and their potential consequences, it was not sufficient to establish a compensation condition. Thousands of people are diagnosed with pleural plaques every year, and their right to bring a claim for that condition was wiped out by this decision, which was a windfall to the insurance industry calculated to be in the hundreds of thousands of pounds.
Since that decision, the Scottish Parliament has legislated to restore the right to claim for pleural plaques in Scotland, meaning that a person exposed to asbestos in Scotland now has the right to claim compensation, but a person exposed to the same substance developing the same condition in England does not. [Grieves v F T Everard & Sons; Johnston v NEI International Combustion Limited; Rothwell v Chemical and Insulation Company Limited; Topping v Bench Limited]
Insurers use HSE Technical Data Note 13 to undermine mesothelioma claims
The date at which Courts deemed that employers knew there was no safe level of exposure to asbestos has been set at 1965, following the publication and wide coverage of the Newhouse and Thompson report. Since that date, HM Factories Inspector circulars, reports, newsletters and other official Government-produced Health and Safety material has warned repeatedly of the dangers of asbestos, and advised employers to put suitable controls in place to eradicate exposure. However, in 1970, perhaps influenced by pressure from the Asbestos Industry Council, the Factories Inspectorate produced Technical Data Note 13, in which it stated that exposure to brown (amosite) and white (chrysotile) asbestos below 2 fibres per cubic millilitre of area over an 8-hour period would not be sufficient grounds for a prosecution. In contrast, the levels for blue (crocidolite) exposure were set at 0.2 fibres per cubic millilitre over the same period. Insurers - ever keen to evade liability - started to argue that exposure below these levels could not be negligent, because employers were entitled to rely on these guidance levels as ‘safe’ despite the evidence that there was no ‘safe’ level of exposure before a risk of developing mesothelioma arises, and despite the fact that no employer actually measured the levels of asbestos to which it was exposing its employees. Mr Williams faced this defence when he brought a claim against the University of Birmingham for mesothelioma as a result of asbestos exposure whilst a student, during experiments on the speed of light in service tunnels which ran underneath the University.
The tunnels had asbestos lagged pipes, and Mr Williams’ evidence was that the lagging was in a poor state of repair, with some bits hanging off, and other bits on the floor. The Court of Appeal agreed that Defendants were allowed to rely on Technical Data Note 13 to avoid responsibility even though they could show no evidence of having actually taken any steps to assess the levels of exposure or having given the risk to students from the lagging any thought at all, and against all the evidence in existence at the time regarding the knowledge of that risk. The decision of the Court of Appeal in this case has been widely criticised, including by Thompsons Solicitors, but it has led to several cases failing which would previously have succeeded in obtaining damages for the injured people and their families.
Thompsons wins case against insurers who challenged the meaning of the employers’ liability policy
The insurance industry continued to pile pressure on those made ill by exposure to asbestos by next attacking the validity of the historical insurance policies, taken out to cover employer’s liability. Traditionally, where a person develops a disease several years or even decades after the exposure that caused the injury, the claim is against the employer’s liability policy in force at the time the exposure occurred. However, the insurers decided to challenge that again by taking it all the way to the House of Lords, which was now known as the Supreme Court. The insurers argued that, instead of the “trigger” for the policy cover being the inhalation of asbestos fibres, the “trigger” should be the development of the mesothelioma which medical evidence suggested meant when the first changes in the lungs occurred approximately ten years before the mesothelioma was diagnosed.
The effect would be that the insurance policy responding to the claim would be the policy in place ten years before the date of diagnosis, which for the injured victims and their families would have been devastating if the company responsible for the exposure had ceased trading, or become part of a different company and there was no insurance policy in place ten years before the date of diagnosis. Thompsons Solicitors fought the case all the way to the Supreme Court. After three weeks of intense legal argument, the Supreme Court concluded that the “trigger” for claims is the date of exposure, meaning the right insurance policy was that in force at the time of employment.
The Diffuse Mesothelioma Payment Scheme is established
Finally, in 2014, one of the great injustices in mesothelioma claims was addressed. Where a person develops mesothelioma, but their employers are no longer trading, and no insurance policy can be found for the dates of their exposure, they have not been able to pursue a claim for damages. However, in 2014, the Government established the Diffuse Mesothelioma Payment Scheme, to ensure that all mesothelioma victims diagnosed with mesothelioma after 25th July 2012, can be compensated by a claim to the Scheme.
The Scheme is funded by a levy on the insurance industry, since it is their lack of proper records of historical insurance policies that means they cannot be traced. Thompsons’ solicitors were involved in the consultation leading to the establishment of the Scheme, together with trade unions and asbestos victim support groups.
Thompsons successfully obtains compensation from insurance companies to fund new treatments for mesothelioma patients
Following many years of very limited treatment options being available to mesothelioma sufferers, there is finally a more positive development. Previously, the typical treatment of a mesothelioma sufferer who is still relatively well at the time of diagnosis was to offer chemotherapy, with the possibility of more aggressive chemotherapy in the future if the sufferer was still fit enough to withstand the side effects. However, recent trials and studies into the use of new immunotherapy treatments, which work with the body’s own immune system to combat the spread of the disease have been positive.
Although this is not a curative treatment, studies have shown improved length of survival rates when immunotherapy is used after traditional chemotherapy treatments. However, whilst this treatment is not available on the NHS, Thompsons Solicitors has been successful in obtaining agreements from insurance companies to fund new treatments on a private basis, both during the lifetime of the claim and continuing after settlement of the claim, for as long as such treatment is recommended by the treating consultant.
Two milestones in the history of asbestos
There were two important cases decided in 2018. Firstly, it was found by the Supreme Court that the duties imposed on factory owners by the regulations in place in the 1960s extend not only to their own employees, but also to employees of another firm who had been contracted to work on their site. Secondly, the issues considered in the case of Bussey, and the application of Technical Data Note 13, were reconsidered, and the Court of Appeal decided that Technical Data Note 13 should not be used as a general guide to what employers knew about the risks from exposure to asbestos at that time. Instead, they recommended that each case needs to be assessed on its facts, so that what employers should have known at the time of exposure can be properly considered. This brings us full circle back to the Newhouse and Thompson report published in 1965, when all employers should have known that asbestos was dangerous even at low levels, and should have taken steps to eradicate or minimise their employees’ exposure to it. It is a public tragedy that more was not done at the time to prevent exposure to deadly asbestos dust, as that would have avoided or reduced health disaster of the twentieth century.
20th anniversary of the ban on the use and import of asbestos into the UK
On 24 November 1999, the use of asbestos was banned in the UK. While the ban was the first step to safeguarding communities from the effects of asbestos and getting justice for asbestos victims, unfortunately, the battle is still ongoing. The anniversary of the ban on the use of asbestos is a poignant reminder that asbestos isn't a problem of the past - its effects are long-lasting. Annual deaths are now expected to continue to increase steeply at the current levels for the rest of the decade before declining.