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Asbestos: Are You Fire Proof?

Companies have been receiving historic claims for damages from former employees arising from alleged exposure to asbestos.  Any such claim received should be referred to the company’s relevant employer’s liability insurer but in many cases the claim relates to a time so long ago that an insurer cannot be located, because of a lack of records for the relevant period of claim.  There is a database of employer’s liability insurance, the Employer’s Liability Tracing Office (www.elto.org.uk) but like any database, the quality of information on it depends upon the quality of information supplied. 

Even if an insurer cannot be located, all is not lost.  Our litigation team have assisted a number of employers faced with this situation. 

One recent case is a good example of such a claim.  The client, a woodworking and joinery business, received a claim alleging asbestos exposure in the period 1962 to 1968.  The national firm of solicitors acting for the former employee alleged breaches of the Asbestos Regulations 1931 and 1969 and in addition various other alleged breaches of the Factories’ Acts 1937 and 1961 along with Regulation 82 of the Building (Safety Health & Welfare) Regulations 1948 and Regulations 20 and 21 of the Construction (General Provisions) Regulations 1961.  The Company was still in contact with a former employee who had worked for it in the relevant period and he was able to give evidence about the working practices and conditions in the 1960s and steps taken by the company to protect employees.  Importantly, he denied that any work would have involved exposure to asbestos.  We were also able to bring to bear a number of other arguments against the claim.

In the letter of claim the former employee’s solicitors had made numerous references to the “Asbestos Regulations 1931”.  As those solicitors should have known, the 1931 Regulations were properly entitled, “The Asbestos Industry Regulations 1931” and their application was to companies involved in dealing with raw asbestos in the course of producing asbestos products.  That had been made clear in a case in Scotland in 1998 in which a Judge had said that in the 1931 Regulations asbestos, “was defined as referring to that material in its raw mineral state.”  The former employee’s solicitors also relied on the Asbestos Regulations 1969.  However, the former employee had worked for the company between 1962 and 1968 and the 1969 Regulations did not come into force until 15 May 1970 i.e. some two years after his employment had ended. 

In dealing with the various Regulations upon which the former employee sought to rely we were able to refer to two cases from 2009 which had dealt with allegations of asbestos exposure in the late 1950s and early 1960s.  In those cases the Judges held that the Defendants were not negligent in that none of the literature available to them at that time indicated that minimal exposure to asbestos presented a risk of injury and the Defendants had no special knowledge to the contrary.  The Regulations did not impose absolute liability but were couched in terms of reasonable practicability.  The Court in the 2009 cases applied a subjective test finding that the Defendants did not know, and could not reasonably have been expected to have known, the risk of injury arising from exposure to the dust during the period of employment under consideration.

On the issue of knowledge, it should be borne in mind that it was not until 1967 that the first successful case for damages was started.  In the circumstances, the claim was denied and no more was heard from the Claimant’s lawyers about it. 

If you have a problem with claims for asbestos related injuries and cannot locate an insurer to deal with the claim for you and need assistance, speak to our litigation team.

About the Author

James Staton

Partner

James is a Partner and Head of the Dispute Resolution team and primarily handles commercial…

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