Originally published in BLG's Environment and Health & Safety Digest, Autumn 2007
The legal battle that has raged in recent months in relation to the actionability of pleural plaques is almost at an end. The House of Lords heard the appeals in Rothwell v Chemical & Insulating Co Ltd and a number of other cases in June 2007.
Its judgment is expected imminently. It will decide whether the condition, which on its own causes no suffering and may never develop into a more serious asbestos-related condition, can be the basis for an award of damages.
Earlier in the year, on 14 February 2007 in Brett v Reading University, the Court of Appeal reminded claimants in mesothelioma cases of the evidential hurdles that must be overcome before a successful claim can be made.
Mr Brett had been exposed to asbestos in the course of employment by a number of different employers. He made a claim under Section 3 of the Compensation Act 2006 against only one of those employers, Reading University, for full damages. His case was unsuccessful, however.
If it could have been shown that Reading University had breached its duties to Mr Brett in exposing him to asbestos, it would have been liable to compensate him in full under the principles established in Fairchild v Glenhaven Funeral Services and the Compensation Act 2006. However, the evidence in the case was patchy. Whilst the Court felt it was sufficient to enable it to infer that Mr Brett came into contact with asbestos in the course of his work at Reading University, it was not sufficient to show that the University had breached its duties by failing to take the necessary steps to stop him from inhaling it.
Thus, although the decision in Fairchild v Glenhaven Funeral Services and the Compensation Act 2006 make mesothelioma claims considerably easier to bring, claimants still need to demonstrate that the former employer from whom they are recovering damages not only exposed them to asbestos in the course of their work but did so in breach of the relevant duties.
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