Asbestos's changing legal landscape

Two recent legal developments have made it harder for the victims of asbestos-related cancers to obtain compensation

With Guildford Cathedral threatened with closure if it can’t pay raise the £7m needed to remove its asbestos ceilings, it is the right time to focus on the 4,000 people who die each year in the UK from asbestos-related diseases, a tragic legacy well known to those working across the UK construction industry. Professionals, such as architects, involved in building regeneration or refurbishment are now some of the most likely to encounter the deadly substance at some point in their career.

In the last couple of years we’ve seen several high-profile instances of tragic exposure and negligence. Most notably, in April 2013 the architect Rick Mather passed away after contracting mesothelioma, an incurable cancer of the lungs, which is exclusively caused by breathing in airborne asbestos dust. After exposure, it can take decades for mesothelioma to emerge, but when it does it acts extremely fast – a trait that makes it particularly difficult for sufferers and their families to seek justice.

After exposure, it can take decades for mesothelioma to emerge, but when it does it acts extremely fast – making it particularly difficult for sufferers to seek justice.

Unfortunately, two recent legal developments look set to make it even harder for victims of asbestos cancers and their families to obtain compensation from those who may have knowingly allowed exposure.

The changing legal landscape

The first is the Mesothelioma Act, which became law in January 2014 and aims to improve access to compensation where no liable employer or insurance company can be traced. While this aim is admirable, the act contains significant flaws.

Only sufferers of mesothelioma will receive compensation, meaning those suffering from other forms of asbestos-related cancer, such as asbestosis, will be excluded. Additionally, only those diagnosed since 25 July 2012 have the right to file a claim, and even then will only be compensated at a discounted rate – just 75% of what the claimant should be entitled to receive.

Restricting access to employment records

The second development is a policy announced in November 2013 by HM Revenue & Customs (HMRC). Under it, HMRC will no longer release the employment history of a deceased person to their legal representatives until a court application has been received.

This new policy creates an unnecessary barrier to justice. The information-gathering process has always been a challenge, and for an architect who moves from project to project, this can be an especially arduous task. But now, before that process can even begin, families are required to make a court application that has the potential to be an equally lengthy – and costly – affair, stalling the claims process and increasing legal costs.

There is an amendment being put forward, but legislation is still going through parliament and may not be in place before the end of 2014, so victims’ families could still be looking at many more months of delay and uncertainty.

Asbestos Legacy

For decades we have all been at risk from a silent and deadly threat that has already taken its toll on the industry. It is critical that no more are put at risk. To do this we need to ensure industry-wide awareness on how to prevent exposure and how to manage asbestos through comprehensive risk assessments and training. However, it also imperative that those already affected by this material are allowed access to much-needed support. Therefore, amendments to both the Mesothelioma Act and HMRC policy on access to employment records are crucial in protecting the growing number of victims.

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Jane Gittins is head of legal operations at Spencers Solicitors