Following a groundbreaking move by the Supreme Court, in which the family of Dianne Willmore, who died of mesothelioma after she was exposed to asbestos, were found to be entitled to £240,000 compensation, Peter Bennett, partner at Dolmans, explores the implications of the judgment for victims of asbestos and for those businesses and employers defending claims before the courts.

Before the Supreme Court, Knowsley Council argued that Dianne Willmore had failed to demonstrate that the council was responsible for exposure to asbestos and that it had at least doubled the risk of her contracting mesothelioma (the test based on the established law with regard to another type of asbestos-induced cancer before this case). Dismissing this argument, the Supreme Court stated that the question of whether or not a victim should be awarded compensation lay in the ‘material contribution test’ and that there was no such requirement for claimants to demonstrate that the risk to them had been doubled.

Until now, the courts have operated with little precedent law in cases such as this, relying predominantly on the judgments of the House of Lords in the case of Fairchild v Glenhaven Funeral Services Ltd. This case established that, to succeed, claimants would need to demonstrate a material increase in risk as a result of exposure to asbestos due to the particular defendant in question. While the requirement to demonstrate actual causation was never a prerequisite, nor a feasible possibility, if the exposure was deemed to have materially increased the risk of contracting mesothelioma, then the claimant would have been most likely be successful. The difficulty has been in understanding what exposure, in quantitative terms, is sufficient to be deemed 'material', and what is not. The argument as to doubling of risk sought to bring clarity to this aspect.

In the case of Dianne Willmore the Supreme Court has refrained from establishing a threshold as previously suggested and has instead stated that whether exposure was significant enough to determine liability is to be decided on a case by case basis, taking into account the facts of each individual case. In doing so the court has paved the way for further litigation to clarify the law in cases such as this, which we will undoubtedly now begin to see progress though the courts.

The case is particularly important to asbestos sufferers who, despite having only been exposed to a minimal level of asbestos, have gone on to be diagnosed with mesothelioma. The ruling has arguably made cases involving minimal exposure easier to litigate, potentially increasing the likelihood of claimants succeeding in their bids for compensation.

An inevitability of cases of this kind is that they will be brought many years after the exposure occurred, presenting a number of challenges for both parties. First, by the time the case is brought to court, organisations which have arguably allowed exposure to take place may no longer even be in business, preventing asbestos sufferers bringing a case against them. Second, if the organisation or employer is still in existence, they must be found to have had the necessary insurance in place during the period in which the exposure occurred. Third, this insurance, if in place during the period in question, must cover the organisation or employer for this type of risk, which sometimes it does not. Without the necessary insurance, any defendants deemed liable must pay out to claimants without the support of insurers. Typically, cases of this type involve substantial sums of money and so the economic consequences of the ruling for organisations which are unable to pay are significant in an already challenging climate of recession.

Another difficulty arises when there are multiple potential causes of the exposure to asbestos. By the time cases are brought to court, often only one of these organisations or employers who have contributed to the exposure are still in business. The exposure which can be attributed to the remaining sole organisation is therefore often very minimal.

Arguably, blameworthiness for the one remaining recipient is extremely low, significantly less than the combined exposure from all potential defendants who would, if still in existence, have shared the blame and indeed the financial burden. Previously, defendants have in these situations successfully argued that when blameworthiness reaches a low enough level, their blame becomes so slight that without the exposure from each of those remaining bodies, the claimant would never have contracted mesothelioma and so they should not be deemed liable.

However, by failing to pinpoint such a threshold in this latest decision, the Supreme Court has left the issue open. Potentially, any measurable amount of asbestos exposure could now be deemed sufficient to bring a case against a defendant. This is undoubtedly expected to create a significant increase in claims.

Could this result in the establishment of a government compensation scheme to redress the balance? Without such a scheme, in many cases there simply is not the money for organisations to compensate in claims as large are these.

Moving forward, courts will be required to decide whether the amount of exposure in each case is sufficient to impose liability. It is to be expected that a number of cases involving only a modest amount of exposure will now be progressed in the hope of utilising the Supreme Court’s decision in the case of Dianne Willmore.

This is a decision which will have profound economic implications for businesses and employers. Not only has the court’s decision opened the floodgates to further claims of this kind, but it has also exposed the urgent need for clarification in the law.

Peter Bennett is a partner at Dolmans