In Paramount Shopfitting Co Ltd v Rix, the former employer of the deceased – who had died of mesothelioma – appealed against a decision that the employee’s widow had suffered a loss of financial dependency, and questioned how that loss should be quantified.
The deceased left the appellant’s employment to set up his own business in the 1970s, with his own business becoming a success. He had however been exposed to asbestos during his employment and developed mesothelioma, resulting in his death at 60 years old.
When he died, the deceased owned 40% of the shares in his company and was the main breadwinner of the family. His widow held 40% of shares and their two sons 10% each. One of the sons took over the business which continued to be profitable.
The widow brought a claim under the Fatal Accidents Act 1976 stating that her financial dependency should be calculated by reference to her share of the annual income which she and the deceased would have received from the business had he lived. The appellant appealed that the judge had erred in treating all the profits generated by the family company as providing the basis for the financial dependency claim without considering whether those profits had survived the deceased’s death and continued to accrue to the widow, and treating the widow’s entitlement to a share of profits based on her own shareholders as if it had belonged to the deceased.
'The approach of the judge is consistent with the authorities and reflects the reality of this case. There is nothing in this ground of appeal'
The appeal was dismissed, firstly as the court had to determine the amount of loss that had arisen because the deceased was no longer alive and able to work, and the amount of the deceased’s income that was derived solely from capital which the dependants had inherited. The dependency was fixed at the moment of death. Secondly it was irrelevant that the company had thrived since the deceased’s death, as it was undisputed that the businesses success was due to the deceased’s skills, so the loss for the dependant related to the deceased’s contribution or services in creating wealth.
Finally, the judge identified that the widow’s salary and dividends should be included in the loss of dependency because they resulted from the deceased’s work and did not represent her own earnings.
'The approach of the judge is consistent with the authorities and reflects the reality of this case,' said the appeal judge. 'There is nothing in this ground of appeal'.
This decision is important and beneficial to those in similar situations where a patient of mesothelioma leaves behind a business they have created, the dependant can bring a claim for the profits they would have been entitled to if the patient was still alive.
Timeline: what's changed in asbestos regulation since the deceased worked with asbestos
- 1969: The Asbestos Regulations 1969 gave guidance on the first quantitative limits for asbestos dust exposure. They also imposed duties far wider than any previous legislation which applied to all factories, building operations and works of engineering construction. The Regulations also imposed strict requirements to prevent the inhalation of asbestos fibres.
- 1974: Health and Safety at Work etc. Act 1974 provided more duties on the employer.
- 1983: The Asbestos (Licensing) Regulations 1983 covered the most hazardous jobs such as asbestos stripping or removal.
- 1985: The Asbestos (Prohibitions) Regulations 1985 banned the import of blue and brown asbestos in the UK.
- 1985: The Asbestos Products (Safety) Regulations 1985 prohibited the supply and use of blue and brown asbestos containing products, and also required that any product containing other asbestos types to be labelled to warn that asbestos was present and give details of precautions to be taken in handling the product.
- 1987: The Asbestos Products (Safety) (Amended) Regulations 1987 prohibited the supply of products containing actinolite, anthophyllite, chrysotile and tremolite asbestos mineral fibres.
- 1987: The Control of Asbestos at Work Regulations 1987 introduced further dust limits and controls regarding the use of asbestos at work.
- 1988: The Asbestos (Prohibition) (Amended) Regulations 1988 prohibited the spray application of asbestos paint and other compositions containing any asbestos type, and also prohibited the supply and application of any asbestos containing paint or varnish.
- 1990: The Control of Asbestos in the Air Regulations 1990 imposed an emission limit of 0.1 mg/m3 for asbestos emissions to the air by industrial installations utilising asbestos processes.
- 1992: The Control of Asbestos at Work (Amended) Regulations 1992 included a new tighter action level for chrysotile asbestos, allocation of all other forms to the lower level, a requirement to retain health records for 40 rather than 30 years, and the requirement to produce a written plan of work and risk assessment when working with asbestos.
- 1992: The Asbestos (Prohibition) Regulations 1992 replaced the 1985 Regulations and 1988 Amendments and extended the prohibition on the importation of crocidolite asbestos (blue) and amosite asbestos (brown) to all amphibole asbestos. They also prohibited the supply and use of products containing chrysotile asbestos (white) and any spraying of asbestos.
- 1998: The Asbestos (Licensing) (Amended) Regulations 1998 iincluded asbestos insulation (insulating) board within licensed and notifiable asbestos works.
- 1999: The Asbestos (Prohibition) (Amendment) Regulations 1999 banned white asbestos (chrysotile) in the UK.
- 1999: The Asbestos (Prohibitions) (Amendment) (No. 2) Regulations 1999 extended the prohibition of the import, supply and use of all vehicle brake linings containing asbestos, including those for motorcycles.
- 2002: The Control of Asbestos at Work Regulations 2002 re-enacted, with modifications, the 1987 Regulations and introduced an explicit duty to manage asbestos in all non domestic premises.
- 2006: Section 3 of the Compensation Act 2006 stated that a mesothelioma sufferer is entitled to damages in full from any person who negligently exposed them to asbestos.
- 2006: The Control of Asbestos Regulations 2006 came into force to replace the 2002 Regulations and re-enact the 1983 Regulations. A new Single Control Limit of 0.1f/cm3 and a Short Term Exposure Limit (STEL - ACoP standard) of 0.6 f/cm3 measured over 10 minutes were introduced. A new, World Health Organisation (WHO) asbestos fibre counting method was introduced.
- 2008: The Diffuse Mesothelioma Payment Scheme 2008 allows anyone diagnosed with mesothelioma who was exposed to asbestos in the UK, to receive a one off lump sum payment from the Government.
- 2012: The Control of Asbestos Regulations 2012 revoked and replaced the 2006 Regulations.
- 2014: Mesothelioma Act 2014 gave the Government the power to establish the Diffuse Mesothelioma Payment Scheme 2014, which makes damage payments to those who have developed mesothelioma from being wrongly exposed to asbestos at work but their employer no longer exists and no insurer has been found.
Working with Asbestos now
The Control of Asbestos Regulations 2012 updated previous asbestos regulations to take account of the European Commission’s view that the UK had not fully implemented EU Directive 2009/148/EC, on exposure to asbestos.
Changes included that some types of non-licensed work with asbestos now have additional requirements such as notification of work, designating areas where you are working on asbestos, medical surveillance and record keeping. All other requirements remain unchanged.
ACOP L143 ‘Managing and working with asbestos’ also gives practical advice on how to comply with the requirements set out in the 2012 Regulations.
The Health and Safety Executive (HSE) provides a ‘Do’ and ‘Don’t’ list to make sure you work safely by taking appropriate precautions when carrying out any work that could disturb asbestos.
- stop work and speak to your employer, or the building owner if you are suspicious something may be asbestos or if you think the work might need to be carried out by a licensed contractor
- follow the plan of work and relevant HSE essentials guidance sheets
- take account of other risks such as work at height
- use protective equipment including a suitable face mask, worn properly
- clean up as you go
- make sure waste is double-bagged and disposed of properly
- wash before breaks and before going home
- check whether the work should be notified
- make sure you have adequate training before you start.
- use methods that create a lot of dust
- sweep up dust and debris
- take home overalls used for asbestos work
- reuse disposable clothes or masks
- eat or drink in the work area.
Asbestos related diseases are caused by breathing asbestos fibres which are released into the air when asbestos is disturbed or damaged. If inhaled the fibres become trapped in the lungs and over long periods can cause inflammation, scarring and disease.
The four main diseases caused by asbestos exposure include:
- Pleural disease: Pleural plaques and pleural thickening are non-cancerous conditions affecting the outer lining of the lungs which are small areas of scarring which have thickened. Pleural thickening is more widespread and can cause the lungs to be restricted which can lead to breathlessness.
- Mesothelioma: A cancer of the lining of the lungs or the abdomen caused by exposure to asbestos.
- Asbestosis: A type of pulmonary scarring of the lungs caused by inhaling asbestos fibres or dust. It is a non-cancerous condition which causes damage to the air sacs in the lungs, making it more difficult for oxygen to get into the bloodstream, causing breathlessness.
- Lung cancer: It is recognised that being exposed to asbestos can increase your risk of developing lung cancer.
With thanks to health and safety legislation experts Cedrec for this article.