Hodge Jones & Allen Backs Petition to Surmount ‘Legal Hurdles’ Faced by Victims of Secondary Asbestos Exposure

To help a ‘small percentage’ of the 2,500 people who die from mesothelioma in Great Britain every year, Hodge Jones & Allen Solicitors has started a petition on Change.org, calling for the Government to create a compensation scheme for victims of secondary asbestos exposure ‘if they fall within the circumstances where the law does not assist them and does not provide them with any compensation’.[i]

The petition is inspired by Mrs. Iris Craddock, who was admitted to hospital and diagnosed with mesothelioma in September 2019 (she complained of shortness of breath in August of the same year), and subsequently died, aged 82, on 15 May 2020.

Ms. Rae Wall, who is campaigning on behalf of her late mother, asserts that she was secondarily exposed to asbestos fibres between 1955 and the early 1990s, when she shook out and washed her husband’s work clothes in the family bath; he was a lagger, who was employed by several lagging companies in east London.

Unlike his late wife, Mr. Craddock has not developed mesothelioma, but does have benign pleural plaques. This was deemed a non-actionable injury in the jurisdiction of England and Wales over a decade ago, when the House of Lords handed down judgment in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39.

Back in March of this year, Ms. Wall appeared on ITV News with her solicitor, Ms. Lorna Webster, to discuss how mesothelioma sufferers are being ‘failed’ by the law as it stands – watch the full video coverage here.

During the course of her interview, she explains that Ms. Craddock explored the possibility of bringing a claim against her husband’s former employers before she died, but was ‘shocked’ and ‘dismayed’ when she was informed that access to compensation would be limited by ‘legal hurdles’:

  1. The so-called ‘1965 Rule’, which stems from an article published in The Times (dated 31 October 1965), putting employers on notice of a ‘disquieting “new” occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work’ – cited in Maguire v Harland & Wolff Plc & Anor [2005] EWCA Civ 1.
    • Employers can therefore rely on a ‘special date of knowledge’-based breach of duty defence if the alleged exposure occurred pre-1965 (see Maguire), but may still be liable for compensation if exposure took place post-1965 – see the cases of Gibson v Babcock International Ltd [2018] CSOH 78 (reported in BC Disease News, here) and Carey v Vauxhall Motors Ltd [2019] EWHC 238 (QB).
      • B. HHJ Walden-Smith, in Carey, clarified that ‘…all employers [from October 1965 onwards]are subject to the duty to take reasonable care to prevent exposure of its employees, and members of their families, from inhaling the asbestos that might cause mesothelioma. The court has to consider whether [the defendant]fulfilled its duty to take reasonable care by taking all practicable measures to prevent [persons at risk of second-hand exposure] from inhaling asbestos dust, through contact with their employee … in light of the known risk that asbestos dust, if inhaled, might cause mesothelioma’ – an extension of the Bussey v 00654701 Ltd [2018] EWCA Civ 243 (read our Impact Note, here) line of authority. The judge also confirmed that exposure must be more than de minimis (above mere background levels of asbestos), thus rejecting Williams v University of Birmingham [2011] EWCA Civ 1242 and the premise that, until some undefined moment in the 1970’s/1980’s, there was such a thing as a ‘safe level of exposure’.[ii]
  2. Relevant public liability insurance (post-1965) must be located, but its existence can be ‘very difficult’ to trace if an employer shut down its business decades ago.

Denouncing the incomplete scope of legal protection for victims as ‘unfair’ and ‘unacceptable’, Ms. Wall is hopeful that her petition will drive awareness and ultimately compel the Government to promptly recognise and rectify the issue by bringing justice to many individuals (mostly elderly women), who have ‘fallen within the cracks of the system’.

Ms. Webster added that the ‘broken and backward system’ in place has created an ‘insidious and pervasive problem’, which has not received sufficient attention to-date, namely that those who are barred from bringing a successful secondary exposure claim are being discriminated against on grounds that are ‘unacceptable’.

With regards to the ‘legal hurdles’ listed above, the Hodge Jones & Allen Partner commented that:

‘Whilst the Diffuse Mesothelioma Payment Scheme makes payment to mesothelioma victims if the victim’s former own employer is no longer trading and the relevant insurance cannot be identified, it does not extend to cover women who have developed mesothelioma through washing their husband’s asbestos contaminated work clothes. And there is the problem of the “1965 rule”. How is it morally right that one wife who washed her husband’s contaminated work clothing prior to 1965 cannot bring a compensation claim, but another wife who washed similar clothing after 1965 can?’

 

[i] ‘Family calls for legal reform for female asbestos disease sufferers’ (11 February 2021 Hodge Jones & Allen) <https://www.hja.net/news-and-insights/press-releases/asbestos-and-mesothelioma/family-calls-for-legal-reform-for-female-asbestos-disease-sufferers/> accessed 12 May 2021.

‘LORNA WEBSTER SPEAKS TO ITV ABOUT CAMPAIGN TO CHANGE ASBESTOS LAWS’ (6 April 2021 Hodge Jones & Allen) <https://www.hja.net/news-and-insights/hja-in-the-news/asbestos-and-mesothelioma/lorna-webster-speaks-to-itv-about-campaign-to-change-asbestos-laws/> accessed 12 May 2021.

Cash Boyle, ‘Woman fighting to reform asbestos laws after losing mum to mesothelioma’ (11 February 2021 Newham Recorder) <https://www.newhamrecorder.co.uk/news/campaigner-from-rainham-fighting-to-change-asbestos-law-7319188> accessed 12 May 2021.

[ii] John-Paul Swoboda, ‘Carey v Vauxhall Motors Ltd: First reported “overalls case” where the Claimant has been successful’ (13 February 2019 12 King’s Bench Walk Chambers) <https://www.12kbw.co.uk/carey-v-vauxhall-motors-ltd-first-reported-overalls-case-where-the-claimant-has-been-successful/> accessed 11 May 2021.