Liability for Asbestos Related Disease in England and Germany.

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Liability for Asbestos Related Disease in England and Germany.

Article by Mr Richard Best*

INTRODUCTION

Newspapers abound with stories of corporate difficulties in connection with asbestos-related lawsuits. Internationally, most litigation to date has taken place in the United States, where high damages awards, comparatively liberal liability theories, and countless claims by not only the sick but also the so-called "worried well" - those who claim to have been exposed to asbestos but who have not yet contracted an asbestos-related disease - have clogged the judicial system and landed many companies in strife. Insurers have also been hit hard.

As more cases of asbestos-related diseases surface and tales of mounting pressure in the United States continue to hit the headlines, in conjunction with those concerning a possible mammoth trust fund to put an end to US litigation1, companies on both sides of the Atlantic are asking themselves about potential exposure in Europe. Companies across Europe have been affected by asbestos-related liabilities but the extent to which they have been or can be affected depends in significant part upon the legal system of their seat or seats of operation. For companies who currently only fear future claims, the liability regimes and litigation cultures of European jurisdictions may remain obscure, making it difficult for them to estimate potential exposure.

With that in mind, the purpose of this paper is to outline the liability regimes in two major European jurisdictions - England and Germany - and to canvass some practical issues one might need to consider if faced with asbestos-related personal injury claims2. Before getting to these regimes and issues, it may be useful to outline the main asbestos-related diseases and to sketch both the historic use of asbestos in these countries and what that use has left in its wake.

ASBESTOS-RELATED DISEASES3

The asbestos-related diseases which give rise to claims against, amongst others, manufacturers and employers, are principally as follows:

Asbestosis: Scarring of lung tissue through inhalation of airborne asbestos fibres. Although mild asbestosis may not cause any noticeable disability, in severe cases asbestosis can be fatal. Asbestosis will often not develop until up to 20 years after the first exposure to asbestos (and for many it will not develop at all).

Mesothelioma: A rare type of cancer, mesothelioma most commonly occurs in the lining of the lung. It can arise between 20 and 60 years after exposure, occasionally earlier. The typical latency period is 30-40 years.

Pleural Thickening: Thickening of the lining of the lungs which in some cases may progress to breathlessness.

Pl...

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