Working in an industrial environment often means being exposed to harmful substances like asbestos, or other potentially harmful settings like loud noises. Due to this, serious medical conditions such as deafness, mesothelioma, asbestos-related lung cancer, asbestosis, pleural thickening or pleural plaques can be caused or aggravated. In the UK, 12,000 lung disease deaths each year are estimated to be linked to past exposures at work. This exceeds the annual number of people killed in road traffic. It has also been reported by the Labour Force Survey that on average an estimated 18,000 cases of breathing problems or lung problems were caused or aggravated by working conditions each year over the past three years. Mesothelioma and asbestos-related lung cancer together make up 40% of the estimated current annual deaths from occupational lung diseases in the UK.
While asbestos is not used anymore today, it is still contained in houses, offices, schools, hospitals, and other buildings which were built before the year 2000. If you have been exposed to harmful agents due to your working conditions in the specific setting and this was negligently or recklessly caused by your employer, you might be able to claim compensation. In the 2018-2019 period, over 600 cases relating to asbestos have been initiated in the Scottish Civil courts. Around 80% of these cases were brought in the specialised Personal Injury Courts. This shows that asbestos-related claims are very relevant today. How you can still make an industrial disease claim, even if it was contracted many years ago will be outlined in this blog. A step-by-step guide will explain why claims for asbestos-related conditions or deafness are often brought years later and what the time limitations are for these claims.
Step 1: check time limits
One aspect that makes claims for harm and suffering caused by industrial diseases so complex is the time limit for bringing such personal injury claims. In Scotland, the law provides that a claim for a personal injury can only be brought within three years of when the injury was discovered. One of the reasons for this is to limit liability for those responsible for causing the harm so they do not incur infinite liability. Another reason is that the further an incident is in the past, the harder it is to establish what has happened exactly. While this seems reasonably straightforward, it can actually be quite difficult to determine exactly when an industrial disease has been first discovered. It could be when it is first diagnosed by a doctor – but depending on the symptoms and individual, it can also be long before the formal diagnoses. This shows that is it vital to contact a solicitor as soon as possible when any signs of an industrial disease appear and a claim for compensation seems like an option to you. Even if one of your relatives is affected and passes away due to an illness contracted at work, it is possible for the family of the deceased to bring a claim. However, this must also be within the three-year time limit. Generally, it is therefore very important to gather all evidence that is available, such as medical records, witness statements or official workplace health and safety documentation. Given the complexity of industrial disease cases, having an experienced solicitor who you trust is highly recommended, especially as these claims will be against your former or even current employer.
Step 2: employers’ duties
The next step in a personal injury claim is to show that the person who caused the injury (in this case the employer) owed a duty of care to the claimant (here the employee). The employer’s duties arise from different sources. Mostly, they can be found in the written law – the laws and regulations governing health and safety at work. The most important framework for this is the Health and Safety at Work etc Act 1974 which is applicable UK-wide. There are however also more specific regulations for different industries. Additionally, employers have a general duty to take reasonable care to avoid foreseeable injuries to their employees. This comes from the unwritten, common law which is developed by the courts and in this case referred to as the law of negligence. This remains applicable in cases that do not fall under any of the specific regulations.
In summary, an employer therefore has to take reasonable care for the safety of their employees. This can include:
- a safe system of work
- a safe place of work
- providing safe working equipment
- providing training and instruction
- occupiers’ liability arising from having control over dangerous premises
Particularly relevant for asbestos-related disease claims is therefore whether the employer has made sure anyone who might encounter asbestos while working has the required level of knowledge, training (often called asbestos awareness) and equipment to do their work safely and without risk. An experienced solicitor will know exactly what duties employers will need to fulfil and what these duties entail.
Once this duty of the employer is established, the next step for your solicitor is to show that in fact, the employer has fallen below the standard of care that is reasonably expected of them. This is called a breach of a duty of care. This can be a difficult part of the claim and requires expert knowledge of what processes the employer has put in place and what else they could have done to adhere to the standard required. The likelihood and seriousness of harm that could occur will be taken into account as well as the cost of preventing an injury and the utility of the employer’s conduct. For further details see also our blog on accidents as work.
Step 3: Causation
If it has been established that the employer owed a duty of care and has breached this duty, your solicitor must also show that on the balance of probabilities, it was the employer’s conduct which caused the harm you suffered. For industrial disease cases this can often be extremely difficult. What is normally required, is that the harm would not have occurred but for the actions or inactions of the employer, the so-called ‘but-for test’. Especially with asbestos-related diseased or deafness however, this will often be difficult to determine. Frequently, multiple employers will be involved. An additional problem is that often multiple sources of a harmful agent will be involved: it is possible that an employer had the duty to protect the employee from some of the exposure but not all of it. This is often described as cases involving a negligent cause (the exposure the employee should have been protected from) and an innocent cause, which the employer could not have reasonably been expected to protect the employee from. However, the courts recognised these complexities and therefore introduced a different test for these kinds of cases: they ask whether the employer’s conduct has materially contributed to the risk of suffering the harm or materially increased it. This is therefore a different question and can mean that if there is more than one employer, then multiple employers can all be seen to have materially contributed to the risk. The same goes for the situation of having both innocent and negligent exposure – the employer might still have increased the risk for the employee so that causation can be established. Therefore, assessing causation and presenting the right evidence is a very complex aspect of the claim and should be prepared by an experienced solicitor.
Step 4: Compensation
Lastly, a personal injury claim will always be focused on getting compensation. Generally, the amount of compensation that can be awarded will depend on two aspects: one part will be made up of the compensation for the pain and suffering that the claimant had to endure. This is called solatium and will be determined by the court looking at how severely the illness has impacted you as the claimant. The second part is compensation for financial losses such as loss of wages, medical expenses and other sums paid due to the illness. This means, knowing in advance how much you might be able to claim is very difficult. An experienced solicitor will be able to give an indication of the value of your claim, but many factors will have to be taken into consideration, such as how long it will take to close the case and what expenses might incur in the meantime. Before 2009, it was not possible to claim compensation for all cases of asbestos-related conditions, but this was changed by the Damages (asbestos-related Conditions) (Scotland) Act 2009 which made these illnesses actionable injuries. Since then, the courts have developed new approaches on how to calculate the amount of damages that can be awarded specifically in pleural plaques cases. Currently, there is also new legislation being developed making this a very complex field which only an experienced solicitor will be able to comfortably navigate for you.
Very often, it will not actually be the employer who pays the compensation but their insurance. Employers are required to have liability insurance so even if your employer might go out of business, the claim against the insurance can still go ahead. Therefore, it will often be an insurance company on the other side of an industrial disease claim. An alternative to going to court, which is often quicker and easier, is to come to an agreement with one another. However, any offers from employers or insurance companies should be treated with caution and checked by a solicitor to make sure you are not losing out on what you might be able to claim.
Industrial diseases like mesothelioma, asbestos-related lung cancer or deafness can have a very severe impact on those affected. Unfortunately, even though health and safety at work has improved and asbestos is not used anymore, they are still not a thing of the past. A personal injury claim can therefore still be a relevant option to receive compensation for the pain and suffering caused by industrial disease and the expenses incurred if they were caused negligently by a current or former employer. However, as strict time limits apply and these cases are highly complex, the help of an experienced solicitor is highly recommended.