A person should better not come close when asbestos fibers are floating in the air. This wisdom applies to everyone. It does not matter whether the person himself works with asbestos, or whether he or she is around when it happens. In the courtroom, the distinction between working with asbestos yourself or being in the immediate vicinity is important. For an asbestos victim who is indirectly exposed to asbestos, it is more difficult to prove later that he is entitled to compensation.
Lawyers make a difference between employees who have worked with asbestos in the past and those who have not done so. The first group of employees can tell themselves how they have processed asbestos and how the asbestos has been released. They have been exposed in the past - as it is called in the jargon - directly.
Other employees were only in the vicinity when this happened. They have been exposed indirectly in the past. For this group of employees the exposure is more difficult to demonstrate. They have to prove two things: others worked asbestos and they were then in the neighborhood.
In recent years jurisprudence has come about the indirect exposure. In October of this year a relevant judgment was added by the Court in Amsterdam (1). It is important to study this further.
The judgment concerns an asbestos victim who worked his entire working life, from 1946 to 1988, at a large steel factory. He starts out as a go-getter and works through courses to become a work planner and ultimately a group leader. He never works with asbestos all that time. He spent most of the working week in the office and is, on average, thirty percent of his working hours at the factory. In 2009, he is diagnosed with malignant mesothelioma. In 2010 he dies at the age of 81.
The man reports to the Institute for Asbestos Victims (IAS) in December 2009 and receives a contribution from the Social Insurance Bank (SVB). However, the IAS is unable to successfully mediate between the victim and the former employer about compensation. Subsequently, the next of kin exert a lawsuit against the former employer.>
In the legal proceedings, the subdistrict court ordered a further investigation into the exposure. This research, carried out by an epidemiologist and an occupational hygienist, plays an important role in the further procedure.
Based on a study of written material and scientific literature, the researchers conclude that exposure of the victim to asbestos during his work is indeed plausible. In 1972 it was clear that the dust on the cranes around the brake discs contained asbestos in the steel plant. Now, however, it can not be determined with certainty at what concentration the asbestos was in the air. According to the researchers, the exposure was relevant from a health perspective, but was below the then-valid MAC value, the legally permitted value for hazardous substances.
The researchers also report that the employer should have been aware of the risks as a result of exposure to asbestos at the time. Various publications from the Labor Inspectorate pointed out the importance of minimal background exposure and keeping the workplace of asbestos dust clean.
The researchers also note that the company already set up a working group in 1972 to replace asbestos-containing products. With that, the company was certainly a forerunner at that time. But in the policy there was no attention for indirect exposure and keeping the working environment clean. The company also continued to use asbestos. And it was not until late that a start was made on the supervision of the use of personal protective equipment.
The subdistrict judge decides in favor of the asbestos victim, after which the former employer appeals. At the court of appeal, the defense of the employer focuses on the way in which the investigation was carried out. But in the end the Court follows the arguments of the subdistrict court in general terms and the employer is ordered to pay compensation to the victim.
The ruling of the Court is good news for asbestos victims who have not worked with asbestos in the past, but found themselves in a room where this happened. The victim must be able to demonstrate that there was a background exposure in the workspace. Even victims who were indirectly exposed to asbestos in the past therefore have a chance to get the same from the court in legal proceedings.
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