There was a time when lawyers and insurers were led to believe that asbestos claims would peak in 2010. Five years later it seems that we continue to be in the midst of a Mesothelioma epidemic. Asbestos has been illegal for decades, its total use finally banned in 1999. Why then, are we still feeling its deadly effects even now?
The answer is simple: it usually takes years for asbestos illness to develop. Mesothelioma is the most serious condition associated with asbestos and its prognosis is fatal. It has been an easy disease to ignore over the years because asbestos exposure has historically been associated with industrial England. It was regarded as a product of the past. Workers who were employed in shipyards, power stations and construction were those most affected. Even now, there are diagnoses still coming out of those industries.
What is now surprising, however, is that Mesothelioma is not only confined to those jobs of the industrial age. Claimants are coming forward having worked in schools, hospitals and other public places. Wives who washed their husband’s dusty overalls are contracting the disease. School teachers who pinned up their children’s class work with pride onto asbestos insulated wall boards are dying. Doctors and Nurses who lived in hospital accommodation built with asbestos boarding are falling ill.
Every year around 2,500 people die from Mesothelioma and asbestos-related lung cancer across the UK, which is more than twice the number of people who die in road traffic accidents. We cannot be complacent any longer – asbestos is still the killer that surrounds us in our everyday lives.
It is anticipated that between 1970 and 2050, when the epidemic should be under control, more than 90,000 people will have died.
What, then, should employers do now? Is it too late to act?
For current employers, the duty to manage asbestos is contained in the Control of Asbestos Regulations Act 2012. The duty holder (the designated responsible person in any organisation with a remit for asbestos) must take reasonable steps to find out if there are materials containing asbestos in non-domestic premises and if so, its amount, where it is and what condition it is in. He/she must presume that materials contain asbestos unless there is strong evidence that they do not. Records of its location and condition must be kept and regularly reviewed. He/she must prepare a plan that sets out in detail how the risks from these materials will be managed, and take the necessary steps to put the plan into action, monitoring it regularly. Additionally, the duty extends to providing information about the location and condition of the asbestos containing materials to anyone who is liable to work on or disturb them. The duty to manage is all about putting in place the practical steps necessary to protect maintenance workers and others from the risk of exposure to asbestos fibres - it is not about removing all asbestos. Knowledge is key. Control is paramount.
Where asbestos containing materials need to be sealed or removed, employers will need to use the services of a licensed contractor. . Employers who are concerned about managing asbestos can check with the Health & Safety Executive which has produced a step by step guide to assist.
If employees in the workplace are concerned about asbestos and risk, a Trades Union representative or a company Health & Safety Officer should be consulted for reassurance and information. Additionally, and again, the Health & Safety Executive is well placed to advise and alleviate concern. It should be remembered that asbestos is only a danger when fibres are disturbed, made airborne and breathed in. As longs as the asbestos is in good condition and it is located somewhere where it will not easily be damaged then it ought not to be a risk to health.
What if it is too late?
If a diagnosis of asbestos illness has already been made it is important to seek legal advice about the possibility of a claim against the company where the exposure took place. Mesothelioma is a rapidly progressing illness, and early contact with a legal representative will ensure that all information about exposure is captured so that a claim can be started as soon as possible. A specialist legal representative will ensure that all necessary steps are commenced as quickly as required and that the claims process is discussed and time scales matched to individual expectations, including that of life.
It is also possible to bring a claim after death, for the benefit of a widow or next of kin. The relevant time limits for commencing a claim are 3 years from the date of knowledge that a diagnosed illness was caused by negligent exposure, or 3 years from the date of death of the person exposed. Court proceedings must be issued before that 3 year deadline to ensure that the claim can continue thereafter.
It is often the case that companies who exposed workers to unprotected asbestos exposure years ago are now no longer in existence. As long as insurers can be traced, the claim can proceed. It is also possible to restore dissolved companies to the Companies House register for court proceedings to progress. A specialist lawyer will take care of all of this and will also advise on welfare benefits and other payments that can be made. A specialist lawyer will also advise on the extent of compensation that may be awarded and how best to protect means tested welfare benefit entitlement in the future once compensation has been paid. Whilst compensation will not bring back good health, it can at least assist provide financial remedy in the short term and for any surviving spouse in the longer term.
Your Legal Friend supports Action Mesothelioma Day - 3rd July 2015