How to claim compensation for Asbestosis
Asbestosis is a form of pneumoconiosis directly caused by asbestos exposure. From first exposure to development of symptoms is around 12- 18 years following relatively high levels of exposure to the asbestos dust over a long period of time.
Generally speaking asbestosis is usually symptom-free in the early stages, before gradual deterioration in health leading to breathlessness and coughing. There is little treatment available but certain steroids may reduce some of the symptoms. Asbestosis can result in death, but it is more often a pointer to the more serious conditions of lung cancer and mesothelioma.
As the disease progresses, the asbestosis victim would generally find that there is more breathlessness and coughing which they may have initially attributed to smoking if this has been one of their past times. Investigations as to whether asbestosis is the illness can be by way of chest X-ray, lung function test or CT or MRI Scan.
The dangers of Asbestos
When asbestos is disturbed or damaged, fibres are released into the air. These asbestos fibres are inhaled they can cause serious lung diseases. The asbestos dust finds its way into the lungs which over many years may bring on the asbestosis condition causing injury to the claimant. There is no cure but the claimant may seek medical treatment to ease the severity of the condition.
Who can make a claim for asbestosis?
As most cases of asbestosis occur over many years of exposure to asbestos at work, most claims are pursued against the claimant’s employers going back since the 1950’s and 60’s. Compensation for asbestosis can sometimes also be made if the claimant’s partner at home was exposed to asbestos (because another member of the family brought home asbestos dust on his/her working clothes) or through living near an asbestos factory.
What industries are at risk?
Asbestos was used over many years in all sorts of industries, trades and buildings. They even used the stuff in schools and universities. A list of occupations are provided below but it is not exhaustive:
- pipe fitters
- steel workers
- auto mechanics
- Passive exposure
- Thermal insulation engineers
- Asbestos manufacturing workers
- Women who assembled gas masks during the war
- Building workers
- Gas fitters
- Painters and decorators
- People working in places where other workers are handling asbestos
- People who have washed workers overalls
- People who have lived and played near asbestos factories when they were children
How to Claim Compensation for Asbestosis
If claimant have developed asbestosis, which is a cumulative disease, the asbestosis solicitors who makes a claim on the claimant’s behalf, will need to take a full working history. Each employer will have to be carefully analysed to see if that employer had exposed the claimant to asbestos dust and failed to protect the claimant from the dangers of exposure such as the provision of dust masks etc.
Once each employer has been considered and culpable, the solicitor would then need to trace each employer and thereafter their employer’s liability insurance company. It does not matter if the employer has since ceased trading so long as the employer’s insurer can be located. However even if that employer’s insurers cannot be traced, that may not be the end of the claim as the solicitor may be able to trace other employer’s insurance companies that would either pay a contribution to the compensation for asbestosis or to pay the full compensation award.
In general terms, once a work history of exposure has been traced then judging on the severity of the exposure to asbestos each employer would be help liable for their proportion of blame.
Therefore unless there is expert evidence to confirm to the contrary, the solicitor claiming for asbestosis will divide the compensation due to the time the claimant was employed by the employers, if more than one.
For example, the claimant worked for the following employers:
Employer 1 1965 – 1970
Employer 2 1970 – 1975
Employer 3 1975 - 1980
Each employer employed the claimant for 5 years out of 15 years in total. As a result, it will be deemed (unless there is evidence to the contrary) that each employer will be liable on a ‘time exposure’ basis. If the claimant was awarded £90,000, it would mean that each employer would pay out to the claimant £30,000 each.
If, on the other hand, there was evidence to suggest that one employer exposed the claimant to significant amounts of asbestos compared to the other two employers, then that employer would pay more compensation for the asbestosis condition than the others depending on the level of blame attributable to that employer.
Types of Asbestos Dust & Exposure
Control limits describe the upper level of dust allowed in the atmosphere, measured by an approved method described in HSE Guidance Note
The control limits depend on the type of asbestos, and set two levels depending on the time of exposure. They are not safe limits and the HSC does not say that they are. Exposure to all forms of asbestos should be reduced to the minimum reasonably practicable, that is, well below the control limits. They apply only to people working with asbestos, not to other employees or to members of the public. For these categories, exposure should be kept below the clearance limit of 0.01 respirable fibres/ml of air.
At this accepted clearance level for removal work, there are still 10,000 fibres per cubic metre in the air. A human requires one cubic metre of air to breathe per hour so there is still considerable risk. American research suggests that a person breathing this level of asbestos for ten years would stand a three in 1000 chance of developing an asbestos cancer.
For blue and brown asbestos
- i) 0.2 fibres/ml of air averaged over any continuous period of 4 hours
- ii) 0.6 fibres/ml of air averaged over any continuous period of 10 minutes
For white asbestos
- i) 0.5 fibres/ml of air averaged over any continuous period of 4 hours
- ii) 1.5 fibres/ml of air averaged over any continuous period of 10 minutes
However many of this is arbitrary as most claiming for asbestosis compensation would have occurred 30 plus years ago where there was little or no measurement of the dust or protective PPE compared with today’s requirements.
Legal allegations on asbestosis
When solicitors make a formal claim against the employers that expose the claimant to asbestos dust, they will draft a document called a Particulars of Claim, that sets out their allegations of negligence and breach of statutory duty. The solicitors will provide a background of the history of reported literature to impute knowledge on the employers who ought to have been aware of the dangers of asbestos and had a legal duty to protect and warn their employees. Such literature is provided below:
- Annual Reports of the Chief Inspecting Officer of Factories from 1899.
- The 1930, the Merewether and Price Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry demonstrated the link between chronic exposure to asbestos dust and the development of asbestosis.
- Annual Report of the Chief Inspecting Officer of Factories in 1929 concluded that asbestosis can lead to complete disablement and death;
- The Workman’s Compensation (Silicosis and Asbestosis) Act 1930 added asbestosis to the list of compensable occupational diseases;
- Annual Report of the Chief Inspecting Officer of Factories in 1930 warned the that exposure to heavy concentrations of asbestos dust for comparatively short periods resulted
- the Asbestos Industry Regulations 1931 were passed and came into force on 1 March 1932;
- Annual Report of the Chief Inspecting Officer of Factoriesfor 1938
- Annual Report of the Chief Inspecting Officer of Factoriesfor 1945
- Annual Report of the Chief Inspecting Officer of Factoriesfor 1952
- Annual Report of the Chief Inspecting Officer of Factoriesfor 1956
- Papers by Wagner in 1960 and Newhouse and Thompson in 1965
- Annual Report of the Chief Inspecting Officer of Factoriesfor 1966
- Annual Report of the Chief Inspecting Officer of Factories for 1967
- Asbestos Regulations 1969 came into force on 14 May 1970.
The list goes on but the idea is that a history of the risks and dangers of the use of asbestos has been known or should have been known by employers who use employees to work with or come into contact with asbestos.
Case Law on Asbestosis
The following case law provides a summary of the court awards for claimants (and families) claiming for asbestosis. The awards provided and the compensation amounts are as at the year of the award which may be more due to inflation and other factors.
Asbestosis Compensation £200,347
The claimant suffered from full blown asbestosis and was in constant pain and breathlessness. His condition was incurable and he became clinically depressed.
He was formally categorised as 20% disabled but the gravest toll on him had come from the psychological blow of the diagnosis and concerns for his future health. The plaintiff had at one point been diagnosed as being clinically depressed and had not worked since learning of his condition. The claimant had been about to begin a university career in the environmental field when told the news of his condition, he was only 48 years at the time of diagnosis and 52 years at the court hearing case.
Case of David Chandler 2012 £120,000
At the age of 71 years he worked for a Defendant between 1959 – 1962, was awarded £120,000 compensation for the asbestosis condition despite the fact he was last exposed to asbestos 50 years prior to his claim.
£70,000 Claiming Asbestosis Payout Award 1995
The claimant was required to handle asbestos during his employment with his employers. Later after leaving his employers he became ill with other non-related asbestos matters and was treated for angina, he suffered from a stoke which was brought on by his heavy smoking. However he was then later diagnosed with an asbestosis related condition, 11 years after leaving his employers. When the Claimant attended court he had a life expectancy of only 5 years (he was 63 years at the date of the court hearing). An award of £70,000 compensation was awarded for his asbestosis condition.
Nicholas v Ministry of Defence 2013 £47,657
The claimant was the daughter and executrix of the estate of the deceased, D, who died in November 2008 aged 86. During the war years between 1941 and 1943, D had worked for a company assembling gas masks and fitting filters into the masks, as a result of which she had been exposed to asbestos. In June 2004, D had been admitted to hospital, where an X-ray had revealed multiple calcified pleural plaques due to asbestos exposure. D's symptoms remained relatively stable for a while, but, by 2006, her breathlessness was deteriorating and eventually, at times, she had to use an oxygen cylinder. During the last few years of D's life, the claimant shopped, cooked and cleaned for her. In November 2008, D died from oesophageal cancer, which was unrelated to the asbestosis. It was agreed that, in August 2004, D had been advised by a doctor that she could make a claim in relation to the asbestosis.
In all the circumstances, an appropriate award for pain, suffering and loss of amenity was £40,000. In relation to care and assistance, a total of £7,657 would be awarded.
Horsley v Cascade Insulation Services & Others  £45,000
Compensation for an asbestosis claim was reduced by 20% due to the claimant’s smoking. The claimant worked as a lagger and between 1976 and 1982 where he contracted asbestosis with three different defendants. Blame was divided between each of the three employers due to the amount to of exposure during each employment. The claimant suffered from asbestosis of which 15% was attributable to his asbestosis condition and the remaining 5% to obesity. The medical evidence assessed a number of uncertainties and risks the claimant faced as a result of his asbestosis which included a risk of the development of lung cancer which was complicated by the fact the claimant smoked. The medical evidence estimated a 36% risk of the claimant developing lung cancer with 12% attributable to smoking and 24% to the asbestos exposure. The end result was that claimant for asbestosis compensation, the various risks of blame against him for smoking was assessed at 20%. His injuries were assessed at £45,000 but reduced by 20%.
A claim for asbestosis compensation £21,255
The claimant was exposed to asbestos during his employment as a pipe fitter with the defendant employer for a some 33 years. In 2000 he underwent x-rays to investigate the cause of chest pain. The x-rays revealed calcified bilateral pleural plaques, a diagnosis that caused the claimant several weeks of serious anxiety for which he required tranquillisers. The plaques were asymptomatic and, save for being a cause of worry, had no adverse effect on the claimant's health. However, he remained at risk of developing future asbestos related condition. There was a 10% risk of developing mesothelioma however and lung cancer a risk factor that was heightened due to his previous smoking history.
Claiming for Asbestosis Compensation Range of Award
The Judicial College Guidelines, which is an assessment of average asbestosis payouts for compensation provide an analysis of the amount of compensation payments for asbestosis.
The Guide to compensation are set out below:
£36.000 to £100,000
Asbestosis and pleural thickening—where the level of disability attributable to asbestos will be in excess of 10% causing progressive symptoms of breathlessness by reducing lung function. Awards at the lower end of the bracket will be applicable where the condition is relatively static. Higher awards will be applicable where the condition has progressed or is likely to progress to cause more severe breathlessness. Awards at the top end of the bracket will be applicable where mobility and quality of life has or is likely to become significantly impaired and/or life expectancy significantly reduced. This is a wide bracket and the extent of respiratory disability will be highly significant with disabilities of 10–30% being at the lower end, 30–50% in the middle, and in excess of 50% at the higher end
£14,000 to £36,000
Asbestosis and pleural thickening—where the level of respiratory disability/ lung function impairment attributable to asbestos is 1–10%, The level of award will be influenced by whether it is to be final or on a provisional basis and also the extent of anxiety.
The range of awards provide a short descriptive narrative of the suffering that provide individual asbestosis solicitors a guide to look at specific cases that are as close to a match at their client’s suffering and particular circumstances to enable a valuation for claimant asbestosis compensation.
Contact the Asbestosis Compensaiton Solicitors Hotline
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Further Reading on Asbestos & Mesothelioma Compensation Claims
Mesothelioma on Wikipedia