Low Level Asbestos Exposure

There are increasing numbers of claims being intimated from

Claimants suffering from mesothelioma who allege low level

bystander exposure. However, caution needs to be exercised before

automatically attributing causation for the condition to specific

alleged exposure, rather than taking a close look at environmental,

background exposure.

It is particularly difficult to rebut allegations of negligent

exposure involving low dose cases which involve occupations not

typically associated with exposure to asbestos.

One such example could be those cases where claimants are

increasingly seeking to attach liability for low level asbestos

exposure to individual schools and local authorities, despite the

likelihood of asbestos being present in a wide variety of

locations. Where there are allegations of exposure to asbestos

occurring many years previously whilst attending or working at

schools, there is often little information with regard to potential

exposure there and elsewhere. Differentiating between these

competing potential causes can be impossible, or at least extremely

difficult.

Perhaps the most emotive instance is that of 28 year old Leigh

Carlisle who tragically died last summer and whom it is believed

developed mesothelioma either from her primary school or by taking

a short cut through a factory yard where asbestos was cut.

It would be helpful if the Health & Safety Executive

provided greater clarity on background asbestos levels in the

UK's public buildings if Defendants are to have any chance

against spiralling low level exposure claims. There is certainly a

need to look closely at the general issue of background asbestos

levels so that greater certainty can be reached on an individual

Claimant's likelihood of exposure.

In 2006, the Health & Safety Executive Watch Committee

published an assessment of the potential exposure of teachers and

others from the use of drawing pins on asbestos insulating board in

a school classroom setting, but the scientific methodology employed

was called into question.

In theory, given the appropriate facts and evidence, it should

be possible to argue that, even though the Defendant may have

exposed a Claimant/Deceased to asbestos and even if that exposure

was negligent, it did not materially increase the risk of the

mesothelioma developing (the causation test in Fairchild) because

it did not materially exceed the background level of asbestos in

the community as a whole. However, recent case law would suggest

that such a defence is difficult to succeed in the current climate,

particularly where post 1965 exposure is involved.

In Pinder v Cape Plc [2006], the Claimant, John

Pinder, developed mesothelioma as a result of playing in an

asbestos waste tip as a child in the 1950's. The High Court

rejected Pinder's claim that:

The Defendants could not have foreseen he, or other children

would play within its grounds, which was, at the time, controlled

by the local Council.

The Defendants were under no duty to provide advice to the

local Council regarding the safe disposal of asbestos it had

delivered to the tip.

The key factor in this case was that exposure was prior to 1965

when the risks from such exposure were not appreciated and it was

outside the workplace.

In Jones v Metalbox Limited and Crown

Cork & Seal Limited...