Secondary exposure to asbestos occurs not as a result of a direct encounter with asbestos materials but through a second-hand transfer and it carries a significant risk of asbestos related disease, which includes the fatal cancer – Mesothelioma.
Throughout the 1900s, asbestos fibres were inadvertently brought home by men, working in heavy industrial roles, often as a result of not having any changing or shower facilities following a long days work. This meant that men were returning to their homes covered head to toe in dust. Upon arrival, women (usually wives or daughters) would meet the men at the front door, taking their overalls to clean. Before doing so, they would shake their overalls to get rid of any excess dust before putting them in the laundry. This is the most common form of second-hand exposure when the fibres become airborne within the household as a result of shaking. Fibres can also transfer, however, to uncontaminated clothing when washed in the same load as asbestos covered overalls.
It is only decades later that the ramifications of such secondary exposure become clear when members of the household begin to experience respiratory issues which are later diagnosed as an asbestos related disease.
But unlike their husbands/fathers, there has been no direct exposure to asbestos fibres through an employer so where does the negligence lie?
The law in relation to secondary exposure has developed over the decades and it is increasingly recognising the validity of secondary asbestos exposure. This means that victims of such second-hand transfers are more and more able to recover damages for the pain and suffering that they have and are enduring.
The leading case on secondary exposure is Maguire v Harland & Wolff:
This case concerned a female victim who inhaled asbestos fibres brought home on her husband’s work clothes in the early 1960s and prior to 1965. The exposure occurred as a result of shaking and washing dirty overalls. The action was against the husband’s employer (Harland & Wolff) and focused on the liability of the employer where the victim was not their employee but suffered, secondary, as a consequence of their direct negligence against the victim’s husband.
The case was brought in the High Court in England and it was decided that compensation would be awarded because the Court deemed that the employer should have foreseen that the victim and other families of other workers were at risk from asbestos dust, given the quantity levels within the workplace, and they should have ensured that workers did not leave the workplace & go home covered in asbestos. This risk was evident from actual or imputed knowledge at the time, according to the High Court.
The employer appealed against the decision on the basis that the risk of serious injury to the victim was not obvious at the relevant time. The victim was exposed to asbestos dust on her husband's work clothes during the time he was employed by between 1961 and 1965 as a boilermaker at their shipyard. As a result she had contracted Mesothelioma. The employer admitted that exposing the victim’s husband to asbestos dust was a breach of its common law duty to the husband. However, the employer stressed that they did not breach any duty to the victim because it was not reasonably foreseeable that their failure to take proper precautions would injure anyone except the victim’s husband.
The employer recognised that it should have appreciated the risk of harm to the victim’s husband, as their employee, and taken precautions for his safety, but this did not mean that they should have recognised a secondary exposure risk to his wife, the victim.
The Appeal Court, by a slim majority of 2 to 1, reversed the High Court decision. It held that it was not reasonably foreseeable between 1960-1965 that a wife washing the clothes of a husband who was exposed to asbestos, which in itself was accepted as negligent, would herself be likely to suffer risk of personal injury. They considered that before 1965, neither the industry nor the medical profession suggested that it was necessary for risks arising from familial exposure to be addressed. The Victim’s submission that before 1965, and before contemporary understanding, the employer should have appreciated that the victim was at risk of any asbestos related disease was rejected. The employer’s failure to appreciate such risk and to take appropriate precautions for the victim’s safety was not negligent.
It is important to note that in the Maguire case, there was divided opinion on the impact that occupational health papers/knowledge should have in determining when a secondary exposure risk should have been foreseen. The majority of the Appeal Court clearly considered that for the employer to be liable, the risk had to be directly identified.
They considered that that risk was not identified until 1965 in a paper by Newhouse and Thompson which drew the conclusions that: “There seems little doubt of the risk of both occupational and domestic exposure to asbestos.” The conclusions from this paper were also published in October 1965 in The Sunday Times.
The Appeal Court considered that the date of those findings was significantly important in determining the date of knowledge when demonstrating whether the employer could have foreseen the risk of secondary exposure.
For those reasons, the Appeal Court held that until 1965, the risk of exposing family members to asbestos fibres, in the home, was not known.
So what does this mean for secondary victims suffering from asbestos related diseases?
Permission to appeal, on behalf of the victim, to the House of Lords was refused which means that the current position in relation to 1965 still stands. This means that, in practice, many women and other family members, who suffer from asbestos related diseases have been denied compensation for their pain and suffering. It is estimated that 300 of the 1,900 annual mesothelioma cases are women who have been exposed, secondary, to asbestos fibres in their homes.
If exposure has occurred post-1965, there may be a legal solution to recover compensation from the primary source’s employer. The victim must be able to establish when and in what manner their own exposure took place as well as determining how the primary asbestos exposure occurred in the primary source’s workplace and what duties were breached including the allowance of asbestos fibres to enter the household.
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