University forced to pay out for 2.3% contribution to employee’s asbestosis

Dyson: Defendants should try and settle this type of case

Dyson: Defendants should try and settle this type of case

The Court of Appeal has ruled that an employer who negligently contributed 2.3% of the asbestos fibres in the lungs of an asbestosis sufferer should have to pay proportional compensation.

Solicitors for retired electrician Albert Carder said the case could impact on a large number of other industrial disease and work-related illness cases.

Mr Carder, who is now 87, was exposed to asbestos dust during four periods of employments. Some 97% of it was attributable to his employment in the 1950s, while 2.3% was attributable to his work at the University of Exeter in the 1980s.

He had also initially sued another employer from the 1960s which was responsible for 0.3% of the dust, but this was dropped on the grounds that it was de minimis. The other firm was not sued.

In Carder v The University of Exeter [2016] EWCA Civ 790, the Court of Appeal – with the outgoing Master of the Rolls, Lord Dyson, giving the main judgment – upheld the calculation and ruling of the High Court in July 2015 that Mr Carder was entitled to compensation.

The university’s insurers appealed, arguing the proportion of the exposure was minimal and had made no discernible difference to his condition.

Lord Dyson ruled: “The severity of the disease had been increased to a small, albeit not measurable, extent. It is conceded that the increase was material i.e. not de minimis. In my view, this concession is critical.

“In these circumstances, the judge was right to hold that Mr Carder was slightly worse off as a result of the 2.3% exposure for which the appellant was responsible. It seems to me that this conclusion (which is one of fact) naturally followed from the appellant’s acceptance of the fact that it was responsible for the 2.3% and that this was material.”

Mr Carder’s overall damages from his total exposure to asbestos were assessed at approximately £67,500, with the university’s contribution confirmed to be £1,713.

Lord Dyson added as a postscript: “I recognise that Mr Carder has been awarded a sum which is small when compared with the costs of this litigation. That is regrettable. But litigation of this kind is often necessarily factually complex. Defendants faced with claims whose costs are likely to be out of proportion to the damages likely to be awarded after a trial should try to settle them early.”

Moore Blatch asbestos disease lawyer John Hedley represented Mr Carder. He said: “Whilst there is a long-established principle around minimal contributions to asbestos exposure by employers, this case helps define what minimal actually means. We can confidently say this contribution can be as low as 2.3% or even less.

“Whilst the compensation is not substantial, it will help Mr Carder and the ruling will help many other people who are in a similar position.”

“This case has broader significance and could impact on a large number of other industrial disease and work-related illness cases. The defendant is trying to appeal again following the Court of Appeal’s decision, so we would assume that the insurers believe the issue is important enough to invest significant sums in legal costs in trying to win.

“There is no way of estimating the total number of cases that could be affected, but it is reasonable to assume that it must be substantial.”

Mr Carder said: “It’s a huge relief for this case to have finally settled and to also know that I can return to court, should my condition deteriorate, which is of great comfort to me and my family. When I started my career asbestos was thought to be such a wonderful thing; unfortunately we were not made aware of the dangers.”

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