The implications of common law on asbestos in soil

The term “common law” in the UK refers to a set of legal precedents that have been developed from court judgments over many years, this is unlike statutory law which is established by an Act of Parliament. One example of this is the “law of tort”, which relates to situations where some form of action or negligence has caused somebody else harm. In England this involves civil actions and is tried in front of a judge. It was once summed up as “you should not injure your neighbour”. 

The Law of Tort and how it relates to mesothelioma is interesting, as it is almost impossible to fully establish where the individual asbestos fibres that caused the mesothelioma came from, especially if there are several possible sources of exposure. Added to this science cannot tells us exactly how many fibres or exposures it takes to cause mesothelioma in an individual. 

 

Therefore in the case of mesothelioma the test comes down simply to whether a negligent exposure has caused a material increase in the risk of developing the disease to the claimant by the defendant. 

 

But what is a “material increase” in the risk? Can it be quantified? No, currently it means “more than minimal” or “more than background exposure”. 

For many who have a background in managing and surveying asbestos in buildings, some of the discussed levels of airborne asbestos fibres from soil seem negligible, and there is much talk that any concerns in this regard are overblown. In some ways this may be the case and the risks we deal with in buildings are undoubtedly much greater. 

 

However as we have seen from the discussion of common law and the law of tort, if someone develops mesothelioma and can prove on the balance of probability that, for example, development work on a neighbouring brownfield site caused asbestos exposure above typical background levels (which would likely be a very low level of f/ml), that may be enough to place liability with the developer, even if they could not categorically prove that the developer had provided the precise exposure that led to the disease. Added to this even if there were other defendants who had similarly caused negligent asbestos exposure to the claimant, each and every defendant is jointly liable, with the only way of balancing up liability to take out separate proceedings. 

 

So to some degree it is fear of future legal proceedings and the current situation under common law that is driving the current issues with asbestos in soil. 

 

By Brett Millward