When, despite the advance of time and less than accurate methods of measurement, exposure was clearly excessive
What happened?
A man had worked British Rail for seven years from 1956 to 1963 repairing train carriages. He said that during his employment he was regularly exposed to asbestos dust, which had resulted in asbestosis.
The secretary of state, who had taken over British Rail’s liabilities, stated that British Rail could not be responsible for the condition, so at the age of 77 he made a claim.
It was common knowledge that some of the carriages the claimant worked on were likely to have contained ‘blue asbestos’, or crocidolite, a particularly concentrated form of asbestos. The removal of ceiling panels in the carriages for repair would have released asbestos dust, and a key contention between the two parties was to what extent the ceiling panels had been removed, and what likely quantities of asbestos released. Experts agreed that the claimant could be considered to have asbestosis if his cumulative exposure to asbestos amounted to 25 fibres per millilitre per year, or ‘25 fibre years’ of exposure.
Today, any work with blue asbestos is managed through the Control of Asbestos Regulations 2012, which establishes control limits for asbestos. Currently, such limits are set at 0.1 fibres/ml over a four-hour average.
The secretary of state accepted that if the claimant could prove that he had been exposed to substantial quantities of asbestos dust, British Rail had failed to take all practical measures to protect him.
The experts were split in their estimations of the claimant’s exposure to asbestos dust, but the claimant was able to give unchallenged evidence of chunks of blue dust falling on to him and the floor during his work, and staying there until the end of the job, which supported his case.
Legal Outcome
The judge concluded: ‘I am satisfied that the man would have been exposed to concentrations of asbestos dust in the range of 20 to 100 fibres/ml on a regular basis. I am therefore satisfied on the balance of probabilities that his total exposure would have exceeded the Helsinki threshold of 25 fibre years.’ As a result, the claim succeeded.
What can we learn from what happened?
This library includes another claim for compensation in relation to exposure, but this claim was unsuccessful. Not because it wasn’t recognised that asbestos wasn’t harmful (although the full extent of its carcinogenic properties hadn’t been realised), but because the level of exposure wasn’t sufficient for the liability to clearly sit with the organisation (in this case a building company).
The British Rail example above was successful, because the exposure threshold was met. That said, with cases relating to exposure so long ago, the absence of any sophisticated method of exposure measurement, and the lack of scientific or medical knowledge about asbestos as a deadly substance, you can see how difficult it is for a claim to be determined either way.
Source of Information
IOSH Magazine