Asbestos Exposure in UK Law

To determine that question, it seems to me the judge had to make findings about (1) the actual level of exposure to asbestos fibres to which Mr Williams was exposed; (2) what knowledge the University ought to have had in 1974 about the risks posed by that degree of exposure to asbestos fibres; (3) whether, with that knowledge, it was (or should have been) reasonably foreseeable to the University that, with that level of exposure, Mr Williams was likely to be exposed to asbestos related injury; (4) the reasonable steps that the University ought to have taken in the light of the exposure to asbestos fibres to which Mr Williams was exposed in fact; and (5) whether the University negligently failed to take the necessary reasonable steps.

(2) The responsible person shall be liable — (a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos — (i) other than by the responsible person, whether or not in circumstance in which another person has liability in tort, or (ii) by the responsible person in circumstances in which he has no liability in tort) and (b) jointly and severally with any other responsible person….

The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead.

In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient "weak" or "broad" causal link for the disease to be regarded as "caused" within the insurance period. The risk is no more than an element or condition necessary to establish liability for the mesothelioma.

This approach does not seem to me, however, to address the fundamental point that, while the pleural plaques can be said to amount to an injury or a disease, neither the injury nor the disease was in itself harmful. This is not a case where a claim of low value requires the support of other elements to make it actionable. The need for this is due to what the pleural plaques indicate about the extent of the exposure to asbestos.

He preferred the formulation of Buxton J that from the beginning of Mr Owen's employment in 1951, 'the difficulties related to and the threats posed by asbestos were sufficiently well-known, and sufficiently uncertain in their extent and effect, for employers to be under a duty to reduce exposure to the greatest extent possible.'