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Victory for asbestos victims in Supreme Court

Experts claim judgment secures access to justice for future sufferers of mesothelioma

23 October 2014

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Lawyers representing the family of an asbestos-related cancer victim say that a landmark judgment from the Supreme Court will protect the rights of future sufferers to receive a fair settlement.

In McDonald (Deceased) (Represented by Mrs Edna McDonald) (Respondent) v The National Grid Electricity Transmission Plc (Appellant) [2014] UKSC 53, five Supreme Court justices examined the case of Percy McDonald, who contracted mesothelioma after being exposed to asbestos dust during visits to Battersea Power Station.

It had previously been argued by the defendant that Percy and his family could not receive compensation because he was not employed by the occupier of the site and because their primary work was not directly involved in the asbestos industry.

The Supreme Court dismissed National Grid's appeal with the majority judgment providing guidance on several key points of law.

The ruling establishes that under the Factories Act 1961 it is the occupier of the premises which is responsible for the welfare of the people on site, not just those that it directly employs, and, furthermore, the Asbestos Industry Regulations apply to all factories using asbestos - not just those involved in the asbestos industry.

Protecting workers

Alida Coates, a partner in the asbestos-related disease team at Irwin Mitchell, which represented the McDonald family, said: "This judgment will not only provide reassurance for those who are currently in a similar situation and are also suffering from mesothelioma or other industrial diseases, but also the many people who will receive the devastating news in future that they have contracted the terminal cancer as a result of exposure decades ago."

She continued: "This case is the latest in a long line of challenges over the past few years as insurers have sought to limit access to justice for victims of asbestos diseases. This judgment will give all people who work on factory sites additional protection in their working environment. At a time when the current government seem set on eroding the protection offered to people at work, it is refreshing to note that the judges in the Supreme Court take the protection of workers seriously."

Success fees

Damon Burt, a partner at Plexus law who represented National Grid, said: "Naturally we will respect the decision of the Court. For our part, it is disappointing that the well-argued findings of Lord Reed and Lord Neuberger, the president of the Supreme Court, did not persuade the majority."

Commenting on the judgment, David Pugh, a member of the Forum of Insurance Lawyers (FOIL) disease sector focus team, said: "This is clearly a very complex decision turning on highly technical interpretations of regulations written a long time ago. The judgment is very finely balanced, with a bare majority finding in the claimant's favour. The effect of the decision is to make employers (and their insurers) liable to pay damages even when they could not have foreseen that the claimants were being put at risk.

"The decision will make it harder for insurers to defend claims, especially those which come from asbestos exposure in the years before the dangers were fully appreciated. It is difficult to say just how many more claims insurers will face since some of the cases affected might not previously been brought."

Pugh added: "Claimant solicitors may find that this decision encourages added focus on their success fees in mesothelioma cases - something they have fought apparently successfully to preserve in the recent LASPO JR. McDonald makes cases even more difficult to defend. The Mesothelioma Support Scheme exists to pay where defendants and insurers cannot be traced. Causation was wrapped up in the claimants' favour a long time ago. What risk of losing remains for a claimant solicitor in a mesothelioma claim?"

John van der Luit-Drummond is legal reporter for Solicitors Journal

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Health & Safety Courts & Judiciary