Asbestos Claims Update – Court of Appeal Sees Sense

A summary of the facts

A man who was made to work with asbestos during the 1950s has succeeded in his appeal against a ruling in the lower courts.

The now-repealed Asbestos Industry Regulations 1931, which created a statutory duty for an employer to protect workers from asbestos dust, came into play in this case. Arguments were raised over whether an exception to the rules could allow the employers to avoid liability.

The regulation in question would not apply if 'the mixing process was carried on only occasionally, and the person was not employed in that part of the factory for more than eight hours per week' (Thompson Reuters).

The judge at first instance had held that it was for the employee to prove this exception did not apply to him - he would have to produce evidence to show the hours and frequency of his work during that period, not an easy task given the time that had elapsed since that job. His claim failed, and he took his case to the Court of Appeal.

On appeal, it was held that reversing the burden of proof in this way had been incorrect, and that it was for the employers to show that the exception did apply. This, the court said, they had failed to do.

Going further, the Court of Appeal held that even if the full extent of the dangers of asbestos were not known at the time of the exposure, the risk was known, and the employer should have been protected from it. The claimant's appeal was allowed; damages are likely to be assessed shortly.

The solicitor's perspective

Michelmores' Kevin Finneran, a clinical negligence specialist with an interest in industrial injury, sees this as a positive step for asbestos victims seeking justice.

'We're glad that the courts have seen sense on this issue,' he said. 'Victims of asbestos disease face enough challenges already, without being burdened with what should be the responsibility of the employers.

'Bear in mind how short a person's life expectancy can be after being diagnosed with mesothelioma: claimants need quick, appropriate redress, without time-consuming litigation in the higher courts.'

Michelmores Solicitors are clinical negligence specialists, with an expert team of lawyers for asbestos disease cases. To see more about how we can help, click here for our asbestos claims service.

The case citation for this appeal is below:

PERCY LEONARD McDONALD v (1) DEPARTMENT FOR COMMUNITIES & LOCAL GOVERNMENT (2) NATIONAL GRID ELECTRICITY TRANSMISSION PLC (2013) [2013] EWCA