ASBESTOS & THE ENVIRONMENT

Asbestos related diseases do not only affect those who have worked with asbestos, they also affect those who have been exposed to asbestos in the environment. This is because the dangerous dust was not simply confined to the workplace but also contaminated the environment through the actions of asbestos users and their employees.

Due to its properties, asbestos is an expensive material to dispose of. During the last century thousands of tons of asbestos were dumped at UK landfill sites. To this day asbestos is still being dumped at licensed landfill sites and worryingly it is being "fly tipped" by those trying to save money on disposal costs.

Before the processing of asbestos products was outlawed in the UK, areas surrounding asbestos factories suffered daily contamination from the production going on within the factory. Unfortunately, the legacy of that contamination still exists today.

Legislation was largely aimed at a factory owner's duty to protect its employees rather than a duty to protect those who may have been affected by their actions. As a result precautions at factories were geared toward reducing the risk to the factory workers, sometimes with fatal consequences for the surrounding communities.

Dust extraction equipment at these sites was often simple in design, sucking contaminated air out of the factory and then pumping it into the environment with little regard for the wellbeing of the local residents. Families were exposed to potentially harmful levels of asbestos dust and there are accounts of children having had 'snowball' fights with asbestos dust within sight of the factory which produced it. People have developed asbestos related diseases from this type of exposure.

Sadly, the families of those who have worked with asbestos have also suffered as a result of the harmful mineral. Many of the asbestos related industries were male dominated and workmen would make their way home in the clothing which they had worn at work. Asbestos dust contaminated the men's clothing and their wives and families would clean the clothes.

Sometimes the clothes were so dusty that they had to be shaken or brushed down and then washed by hand or in later years by washing machine. Other times they were simply left in the wash basket, silently contaminating the home and placing the whole family at risk. That risk has materialised in a number of cases and people have died as a result of asbestos related diseases caused by 'secondary exposure' of this type.

Children who sat on their father's lap on his return home from work have also suffered as a result of breathing in the deadly dust. Tragically, there are instances of adults developing and dying from mesothelioma as a result of exposure to asbestos when they were children.

It is possible to recover damages if you have contracted an asbestos related disease from exposure to asbestos in the environment or through secondary exposure. However, these cases can be more difficult to prove than those where exposure occurred through your employment. This makes seeking specialist legal advice even more important.

John Pickering and Partners have handled a number of important cases in this area and have tried to develop the law, through the courts, so that those affected by such exposure can have justice.

Detailed below are two of the cases in which we have acted which have shaped the law in this area. We have also acted for many clients whose cases have settled without them going to court.

CASE LAW:

ENVIRONMENTAL EXPOSURE

Margereson - v- J W Roberts Limited [1996] PIQR 154

The Defendant, J W Roberts Ltd, owned a factory in the Armley area of Leeds. Armley was, and still is, a densely populated area of Leeds characterised by the rows of terraced houses which are situated there.

The factory, which was in operation from the late 19th Century until 1958, regularly crushed and mixed asbestos materials so that they could be added to other products.

These processes created substantial quantities of asbestos dust which contaminated the factory itself and the surrounding area. Asbestos dust escaped from J W Roberts' factory through open doors, open windows, loading bays and yards. Dust was also blown into the atmosphere by the extraction equipment at the factory.

Asbestos materials were also left outside the Defendant's factory which left them vulnerable to the activities of playing children. Indeed the court heard that children often jumped onto bales of asbestos materials which were left in the open. The bales sometimes split open. The account of one witness even described children having "snowball fights" with compacted asbestos dust.

In this case John Pickering and Partners represented the widow of Arthur Margereson. Arthur Margereson was born in 1925 and lived approximately 200 yards away from J W Roberts' factory in Armley. He had never worked at J W Roberts' factory.

Mr Margereson lived in the same house in Armley until he joined the armed forces in 1943 and then returned to the house after his service had ended.

Sadly, Mr Margereson was diagnosed with mesothelioma in September 1990 and he died from the disease in 1991. Prior to his death, a court action was started against J W Roberts for negligently exposing Mr Margereson to dangerous quantities of asbestos dust present in the atmosphere outside their factory.

The Defendant argued that, until 1933, it did not know that asbestos was dangerous to the workers at their factory or to others exposed to asbestos levels equal to those within its factory.

They said that Mr Margereson's condition might well have been caused by inhalation of asbestos dust prior to 1933 at a time when they could not have foreseen that he would develop a pulmonary injury as a result of their actions.

The court rejected this argument. It found that the J W Roberts did know that asbestos could cause pulmonary injury prior to 1933 and, in reality, it was aware of the dangers prior to Mr Margereson's birth in 1925.

The court also found that the conditions outside the Defendant's factory were as dusty as those within the factory itself and that in those circumstances J W Roberts' duty of care extended past the factory walls to those affected in the local community.

The reality was that J W Roberts foresaw a risk to persons like Mr Margereson and were negligent when they failed to take precautions to reduce that risk. Therefore they had acted in breach of their duty of care toward Mr Margereson and others like him.

This was the first case of its kind and made a breakthrough in the field of environmental asbestos exposure claims. It illustrates that John Pickering and Partners are committed to fighting cases where Defendants will not settle.

SECONDARY EXPOSURE

Maguire v Harland & Wolff (Court of Appeal 2005)

Mrs Maguire married her husband, James, on 23 December 1961. She became ill in 2000 and a diagnosis of mesothelioma was made. Her condition steadily deteriorated, and sadly, in May 2004 she passed away. John Pickering and Partners represented Mrs Maguire and then Mr Maguire, who continued with her claim after her death.

When Mr and Mrs Maguire began married life Mr Maguire was working as a boilermaker at Harland & Wolff's shipyard in Liverpool. This employment continued until 1965.

Harland & Wolff admitted that during the course of his employment, Mr Maguire was negligently exposed to harmful levels of asbestos dust. Fortunately his employer's breach of statutory duty and negligence has not produced ill health in Mr Maguire and he has made no personal claim for compensation.

The claim on Mrs Maguire's behalf arose from her own exposure to the asbestos dust brought to the marital home at the end of each working day by her husband. Mrs Maguire washed her husband's dusty work clothes and breathed in the dangerous asbestos dust.

This secondary exposure to asbestos dust, which had its source at her husband's place of work, caused the mesothelioma which resulted in Mrs Maguires death.

However, Harland & Wolff had not employed Mrs Maguire. Therefore they owed her none of the specific duties, which are owed by an employer to an employee.

The outcome of this case hung on whether Harland & Wolff knew, at the time of the exposure, that there was a risk to others from their employees who carried asbestos dust home on their clothing.

Harland & Wolff argued that during the period in which Mr Maguire was in their employment, they did not foresee a risk to Mrs Maguire or others in her position. In law if they did not foresee a risk then they did not have a duty to reduce that risk by taking precautions.

The information and facts which were available to Harland and Wolff, at the time of Mrs Maguire's exposure, were scrutinised by the court. It was found that until 1965, despite the developing knowledge about the dangers of asbestos, nothing in the literature or available material warned of the risks to persons like Mrs Maguire.

The court came to the conclusion that an employer in Harland and Wolff's position would not have appreciated the risks to Mrs Maguire's health until 1965.

The ruling meant that the case against Harland & Wolff failed. Had Mrs Maguire's exposure to asbestos continued past 1965 then damages would have been recoverable from Harland and Wolff.

Unfortunately permission to appeal the court's decision, to the House of Lords, was refused.

Although the case failed, it was useful in that it established that a date from which employers like Harland & Wolff will be deemed to have knowledge of the risks posed by secondary exposure of this type.

The case establishes that employers owed a duty of care to those at risk of secondary exposure from 1965 onward. Therefore, employers who failed to take proper precautions to prevent post 1965 secondary exposure will now find it difficult to escape liability.

If you, or a relative has had exposure to asbestos in similar circumstances to Mrs Maguire, it is important that you obtain specialist legal advice, even if you think that the exposure was before 1965. In these cases it is important to establish dates of exposure so that appropriate action can be taken.

Notes: This case was an appeal case. Mrs Maguire's claim had been successful at the court of first instance but the Defendant decided to appeal against the decision. The Defendants appeal was successful.