Press Release
Supreme Court ruling removes a potential hurdle for mesothelioma sufferers obtaining justice
25 March 2011
The Supreme Court ruling in the cases of Dianne Willmore and Enid Costello (Sienkiewicz) has removed a potential hurdle for those people who are negligently exposed to low levels of asbestos and subsequently develop the asbestos related cancer, mesothelioma. It protects victims from having to satisfy the unrealistic and often insurmountable legal obstacles that the defendants were seeking to impose on them in order to establish their claims. The ruling means that they are more likely to obtain the justice they rightly deserve.
On 9th March 2011 seven Justices of the Supreme Court unanimously confirmed that the proof required in a case of mesothelioma is that their exposure "materially" increased the risk, rather than the legal threshold demanded by the Defendants, that the exposure doubled the risk.
In Enid Costello's case the Defendants based their case on an engineer's report that made estimates of asbestos exposure. The calculations were then used as the basis of a risk assessment in an attempt to prove that the risk had not been doubled. In dismissing the appeal the Supreme Court found that there were problems with assessing fibre levels on the evidence available and problems with assessing risk from low level exposure using the present risk models. (See annex)
In Dianne Willmore's case the High Court, Appeal Court and Supreme Court all accepted the medical evidence that "Mesothelioma can occur after low level asbestos exposure and there is no threshold dose of asbestos below which there is no risk." The fact that there is no safe threshold was confirmed two weeks before the Supreme Court judgement was published by the Government's advisory committee on science, WATCH, who stated "The risk will be lower, the lower the exposure, but "safe" thresholds are not identifiable." The Defendants did not dispute the medical evidence, but they did attempt to place an additional legal burden of proof in the paths of those people bringing a claim for compensation.
The insurance industry and the Defence lawyers are concerned that "this decision could generate claims from claimants who have minimal exposure," and argue that "the Supreme Court, in failing to add an additional burden of proof for such claimants, has left defendants potentially vulnerable to speculative claims..." Some go further with a columnist claiming that "The Supreme court has given the asbestos scam a great big hand...could open the floodgates for an asbestos bonanza...lawyers will exploit it to create an explosion of compensation claims." Lord Young had already added to the perception that people were making unjustified claims by declaring there is a "compensation culture." His report, Common Sense Common Safety, made the unsubstantiated claim that schools are "a low risk environment" and made various recommendations including that the intention was "to free businesses from unnecessary bureaucratic burdens and the fear of having to pay out unjustified damages claims and legal fees."
The statements of the defence lawyers, the insurance industry and the Government make it appear that people are making frivolous claims, when in the case of mesothelioma the very opposite is true. That is because the qualification of bringing a claim is, effectively, having a terminal disease or being the executor of the estate of a person who has died from the cancer, their next of kin or their dependent.
It is not a bonanza, they are not speculative claims, and neither are they brought because of a compensation culture, rather they are the only recourse to justice available to people in dreadful circumstances. Making a claim for "compensation" from the people who caused their death is the only remedy available to them under the law. Even then the system of obtaining justice is weighted against the claimant.
The burden of proof is considerable as the claimant has to provide evidence of the presence of asbestos, that it was disturbed and the person exposed. In addition they have to prove that negligence caused their exposure or there was a breach of the health and safety statutes. The courts will not find in their favour unless all the criteria are met and the claimant proves that the defendant was at fault.
In "low level" exposure cases it can be extremely difficult to obtain the necessary evidence of the presence of asbestos and resultant exposure. Because it is a civil action the defendants can readily avoid providing all the evidence they should, and indeed the destruction of asbestos records that could be incriminating, is endemic. Therefore unless there is a change in the law that requires all documents to be retained that pertain to the presence of asbestos in schools and its removal, then the practice will continue unfettered, and justice will be denied to the people who were negligently exposed to asbestos and die.
As an example, my wife was a school teacher, was exposed to asbestos at school, and she died of mesothelioma. I had to carry out the investigation and was confronted with prevarication, obscuration and delays not only from local authorities, school authorities and their insurance companies, but also from the Government, the Department for Education and the Health and Safety Executive. Evidence was destroyed or withheld until inevitably, because of their actions, the statute of limitation expired. I had been warned it was a mountain I had to climb if I was to obtain justice for my wife, and indeed it has been.
Despite the obstructions placed in the way, I found that schools had failed to comply with the regulations and failed to prevent the staff and pupils being exposed to asbestos, sometimes over the course of years. I also found a negligent failure of the Government to implement workable asbestos policies for schools or to effectively regulate those schools that were putting their occupants at risk.
My wife was killed by negligence, but she has never had justice, and neither have our family. Those who caused her death have deployed every means to prevent a claim being made, and by doing so they have avoided justice being carried out, and they have avoided paying the just penalty for their negligence.
In contrast, if my wife had been knocked down and killed by the school bus the police would have carried out the investigation, and if they found negligence, even a momentary lapse in concentration, they would have prosecuted under the criminal law. But that does not happen in the case of someone killed by asbestos exposure, as in that case it is a civil action and not considered a criminal one, despite the fact that the laws might have been broken over many years and gross negligence caused the person's death.
The police do not carry out an investigation and prosecution when someone is killed by asbestos and neither do the HSE, the authority whose remit is to regulate health and safety in the UK. Soon after my wife's death I found evidence of asbestos exposure caused by the failure of a number of schools to comply with the regulations and manage their asbestos. I presented the evidence to the HSE in the expectation that they would undertake an investigation, but they refused.
I even notified the HSE of schools where staff and pupils had been exposed to asbestos and remained at risk because of a failure in asbestos management, but again no investigation or inspection was carried out, the HSE case notes stating "No such investigation was intended or made." This means that the very people who have the statutory powers to investigate, refused to do so. Consequently asbestos related deaths of school teachers are not investigated by the HSE, and neither are the school authorities' failure to comply with the regulations which caused their asbestos exposure and that of their pupils in the first place.
Britain has the highest incidence of mesothelioma in the world, and has four times more people who develop mesothelioma and are unaware of where they were exposed, than the remainder of the world. This is understandable as this case appears typical of others, as the staff and pupils who had been present when asbestos fibres were released were not informed of their own exposure, because the school's insurance company advised the school authorities not to do so. Their actions were encouraged by the HSE who stated "Certainly HSE has no duty to investigate to inform." This failure to investigate or to inform means that if any of the people who were exposed to asbestos subsequently develop mesothelioma they will have no idea where it occurred. And that is because the evidence of their exposure has intentionally been kept from them by the insurance company and by the very people who exposed them and have a vested financial interest in concealing their negligence.
The odds are therefore stacked against a person dying from mesothelioma, or their family, obtaining justice. In the case of Dianne Willmore the Council, and their insurance company, intended placing an impossible hurdle in the way so that they could avoid justice for their negligence, but the Supreme Court dismissed their appeal and their arguments and removed that hurdle. In a unanimous judgement the Supreme Court upheld the judgement that Knowsley Metropolitan Borough Council had negligently exposed her to asbestos when she was a pupil at school.
The judgement means that there is one less hurdle in obtaining justice, so that employers and councils who have been guilty of negligently breaking regulations in a way that has killed people, will have to pay. They can no longer have confidence that they will avoid justice. The pundits predict that there will be more cases in the future. If they are correct then it means that more people who have died, or are dying, as a result of negligence are able to bring those who killed them to justice. And that is the right and just thing to happen.
Michael Lees
20th March 2011
More information can be viewed below:
http://www.asbestosexposureschools.co.uk/
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