Claimants making asbestos claims may have no legal right to compensation where at the time of exposure levels of protection offered by employers would have been considered adequate, albeit considered negligent by today's standards. In McGregor v Genco, the Court highlighted this point, underlining the importance that all claims must be looked at individually, on a case-by-case basis, and with regard to the overwhelming body of case law in the area.
The Court could not '..accept that during 1976…the defendant should have appreciated that the claimant was at risk of an asbestos related injury and that their failure to appreciate and take what would now be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent'.
This could be a particularly important point for defendants in legacy claims, especially in Scotland where fatal claims are more expensive than they are in England. It means that, even where a Claimant’s mesothelioma or asbestosis was indeed caused by exposure to asbestos while in employment with a Defendant - which would satisfy the causation test - the Defendant cannot be held to have acted negligently, where they acted in accordance with the standards at the time.
Although potentially good news for Defendants, the problems for Claimants are that beliefs about the associated risks of primary exposure at the time were severely underestimated, and there was no medical or general knowledge before 1965 relating to the risk of mesothelioma from secondary exposure.
Making Asbestosis and Mesothelioma Claims in Scotland
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