Asbestos in its natural state consists of long thin fibrous crystals generally a white, brown, or blue fibrous mineral that in the past had many practical applications particularly in the building industry, but is also a potent and deadly carcinogen. There are six different varieties of asbestos, but the three most common are-
- Chrysotile (White Asbestos)
- Amosite (Brown Asbestos)
- Crocidolite (Blue Asbestos)
Asbestos originally became popular among builders and manufacturers in the late 19th century. Its main characteristics are superior heat and flame retardant properties, high sound absorption and its tensile strength and durability. Asbestos is found in many different products and in many different places. Here is a list of products that are presumed to contain asbestos –
- Sprayed on fire proofing and insulation in buildings
- Insulation for pipes and boilers
- Wall and ceiling insulation
- Ceiling and floor tiles
- Cement wall joint compounds and ceiling textures in older buildings
- Brake linings and clutch pads
Under Irish law if an employer suspects that his employees are exposed to asbestos he must carry out a risk assessment. The assessment is carried out by a licensed company and will establish if there is a risk to employees. If the asbestos is in a safe condition it can be left where it is however if there is any risk, the asbestos must be removed by a licensed company.
Asbestos related litigation is one of the more complex types of litigation. It is particularly difficult for people who are the main breadwinner in the family and have been exposed to asbestos in the past, and now have a potentially fatal asbestos related illness. People who are advancing a claim usually have significant health issues at the time of commencement of litigation. Consequently, it is generally the case that people advancing this type of litigation, are facing limited life expectancy in circumstances of significant worry and concern for their family. That concern very often relates to the ability to ensure that their family is looked after when they pass away.
When is Asbestos hazardous?
When left undisturbed asbestos containing materials do not present a risk to people working or living in buildings with asbestos. It is harmful if it is releasing dust or fibres into the air where they can be inhaled or ingested. Asbestos is extremely dangerous when it is friable. “Friable” means that the asbestos is easily crumbled by hand which then releases fibres into the air. Sprayed on asbestos insulation is extremely friable whereas asbestos floor tiles are not.
What are the Consequences of being exposed to Asbestos?
The four diseases associated with asbestos exposure are; pleural plaques, asbestosis, mesothelioma and lung cancer. Those infected are mainly builders, plumbers and shipyard workers, but teachers, children and nurses are believed to have been put at risk since asbestos was used in the construction of schools and hospitals. Families of those who work with asbestos can also be infected if asbestos particles are brought into the home on clothes. It can take up to 40 years for symptoms to manifest themselves.
Past asbestos exposure has been linked to the recent deaths of two elderly women in Kildare. The local Coroner has suggested that we are starting to see a cluster of these types of fatalities. The Coroner made the point, that the deceased had no current health problems and that it was exposure to asbestos that occurred over 40 years ago that led to their death. The Coroner believed that the women were exposed to asbestos from washing work clothes belonging to workers from Athy’s former asbestos factory which is now the Tegral plant.
Diseases Associated with Asbestos Exposure
- Pleural Plaques are white, smooth, raised areas of tissue found on the inner surface of the ribcage, diaphragm and pleura. They are usually classified and can range in size from small to large. Of all the health problems related to asbestos exposure, pleural plaques are the most common and least threatening. Pleural plaques are always benign and will never become cancerous but scientific evidence suggests that the presence of pleural plaques increases the risk of developing mesothelioma.
In the Irish courts, pleural plaques has been determined as a non-threatening condition and therefore it is not possible to pursue a claim.
- Asbestosis is a chronic inflammatory and fibrotic medical condition affecting the parenchymal tissue of the lungs caused by the inhalation and retention of asbestos fibres. It usually occurs after high intensity and/or long-term exposure to asbestos (particularly in those individuals working on the production or end-use of products containing asbestos) and is therefore regarded as an occupational lung disease. People with extensive occupational exposure in the manufacturing or building industry, or in the removal of asbestos, are at serious risk of developing asbestosis. Sufferers may experience severe dyspnoea (shortness of breath) and are at an increased risk for certain malignancies including lung cancer but especially mesothelioma.
- Mesothelioma (or more precisely, malignant mesothelioma) is a rare form of cancer that develops from transformed cells originating in a mesothelium, the protective lining that covers many of the internal organs of the body. It is usually caused by exposure to asbestos.
The most common anatomical site for the development of mesothelioma is the pleura (the outer lining of the lungs and the internal chest wall) but it can also arise in the peritoneum (the lining of the abdominal cavity) and the pericardium (the sac that surrounds the heart) or the tunica vaginalis (a sac that surrounds the testis).
Most people who develop mesothelioma have worked in jobs where they inhaled asbestos or were exposed to asbestos dust and fibres. It has also been suggested that washing clothes of a family member who worked with asbestos increases the risk for developing mesothelioma. Unlike lung cancer, there seems to be no association between mesothelioma and tobacco smoking, but smoking greatly increases the risk of other asbestos induced cancers.
Signs and symptoms of mesothelioma include shortness of breath due to pleural effusion (fluid between the lung and the chest wall) or chest wall pain and the constitutional signs such as unexplained weight loss. The diagnosis may be suspected with chest x-rays and CT scans but must be confirmed pathologically either with serious effusion, cytology or with biopsy (removing a sample of the suspicious tissue) and microscopic examination. A thoracoscopy (inserting a tube with a camera into the chest) can be used to acquire biopsy material and the introduction of substances such as talc to obliterate the pleural space, preventing more fluid from accumulating and pressing on the lung. Despite treatment with chemotherapy, radiation therapy or even surgery, the disease carries an extremely poor prognosis.
- Lung Cancer. The risk of developing an asbestos related lung cancer varies depending on the type of fibre you are exposed to and the length of time you have been exposed to the fibres. Lung cancer causes the largest number of deaths related to asbestos exposure. The most common symptoms of lung cancer are coughing and a change in breathing. Other symptoms include shortness of breath, persistent chest pains, hoarseness, and anaemia. What is Involved in Progressing an Asbestos Related Illness Claim? The basic details required from you are your employer’s particulars and employer registration number. It is important for us to know if the employer is still in existence and whether they have employer’s liability insurance cover. In many cases, the asbestos exposure occurred decades ago and neither the employer nor insurance cover is in existence. As a consequence, there is no legal entity that is capable of discharging any compensation awarded by the courts. These are the issues that must be established before the claim can be progressed.
There are also a number of other key issues that need to be addressed from the outset. If the company is still in existence, does it have sufficient assets to be in a position to discharge a judgment handed down by the courts? Have you been exposed to asbestos on different occasions, circumstances and/or workplaces? It is not unknown for companies defending claims to seek to ascertain, by way of court order, the circumstances surrounding your exposure to asbestos. We have experienced a situation where the defendant sought a court order to examine the claimant’s boiler house flue to determine if that is where the asbestos exposure arose!
When the above issues have been established there is a range of expertise required to bring the case to court which include the following –
- A respiratory physician
- In circumstances of mesothelioma, a consultant oncologist
- A nursing expert to quantify the cost of care in terms of assistance provided to a person with deteriorating health due to mesothelioma or asbestosis
- An occupational therapist to address the aids and appliances required by a person with mesothelioma/asbestosis i.e. hoists, shower adaptations, etc.
- A vocational expert to address any issue associated with loss of earnings or loss of pension entitlements arising from premature retirement or death
- A consultant actuary to calculate the capital losses associated with the foregoing situations.
Why Instruct Malcomson Law?
Time is of the essence in progressing an asbestos related claim. We have extensive experience in progressing such cases within the limited timeframe required to achieve either a judgment or settlement. Our expertise in establishing the legal proofs, and our knowledge of the relevant legislative provisions from previous litigation means we can assess, in a timely manner, the merits of your claim.
We have the ability from earlier experiences, to brief the necessary experts required to advance your litigation in an effective and efficient manner. As we are experienced medical negligence solicitors we understand the medical terminology for the purposes of utilising it in an effective manner to advance your claim. We have a dedicated health law litigation team with a proven track record in obtaining fair and equitable compensation for clients at the higher range of damages achievable.
The History of Asbestos Litigation
Asbestos litigation is as old as the Irish State. In the UK the death of an English textile worker, Nellie Kershaw, in 1924 from pulmonary asbestosis was the first case to be described in medical literature and the first published account of the disease attributed to occupational asbestos exposure. However, her former employers, Turner Brothers Asbestos, denied that asbestosis even existed because the medical condition was not officially recognised at the time. Accordingly, they accepted no liability for injuries and paid no compensation to Kershaw during her final illness, or to her bereaved family after she had died.
Consequently, the findings of the inquest into her death were highly influential and led to a British parliamentary inquiry. The inquiry formally acknowledged the existence of asbestosis, recognised that it was hazardous to health and concluded that it was irrefutably linked to the prolonged inhalation of asbestos dust. Having established the existence of asbestosis on a medical and judicial basis, the report resulted in the first asbestos industry regulations being published in 1931. They came into effect in the UK on 1st March 1932. In Ireland, asbestos related regulations were introduced in 1955, which in the international context was relatively late.
Legal Issues, Is pleural plaques compensateable?
Pleural plaques or local thickenings of the lining of the lung are strongly associated with past asbestos exposure. There is grave doubt as to the recoverability for compensation associated with this condition. Although a person with pleural plaques has suffered a physical injury in the form of pleural plaques, the legal question is to what extent does that physical injury cause pain and suffering? If the answer to that question is that there is no pain and suffering attributable to the presence of such pleural plaques then there is no event or causative factor that requires compensation. It is on that measure of damages that compensation is usually gauged. One caveat should be mentioned –
“If it is capable of being established that there is a consequence or consequential effect or pain and suffering associated with pleural plaques then, in that scenario, there may be a capacity to achieve compensation”.
A decision of the House of Lords in the matter of Johnson –v- NEI International (2007) UK HL39 was quite categorical that this type of consequence i.e. pleural plaques is a non-compensatable event.
Is the fear of developing an asbestos related disease compensatable?
In terms of the psychiatric impact, the fear of developing a serious illness such as asbestosis or mesothelioma resulted in a number of High Court awards against the Office of Public Workers. The government was faced with an avalanche of compensation claims from various semi-state bodies and appealed the awards to the Supreme Court. The Supreme Court in the matter of Fletcher –v- the Commissioner for Public Works determined that an irrational fear associated with such a consequence is a non-compensatable event.
Compensation for an Asbestos Related Illness
Asbestos related illnesses are subject to compensation under the law of negligence and statutory duty if they can be attributed to a former period of employment. In the event of diagnosis of an asbestos related disease you have two years to lodge a claim. The success of the claim will depend on whether the companies where the exposure occurred still exist. If the company is not in existence, there are other options e.g. tracing the insurers of the company. Please remember that although you may have been injured in the 1950’s, 1960’s or 1970’s, the risk associated with asbestos exposure was known and appreciated at that time.
If you have been affected by any of the issues highlighted in this article please phone 01 8744 422 or email firstname.lastname@example.org.
Our Client Care Executive’s are non-lawyers with a considerable track record of helping people through the many difficult issues that arise during the processing of an asbestos related compensation claim. They will also organise an appointment with an experienced asbestos litigation solicitor.