The recent Supreme Court ruling does clarify the tests the courts should apply and will make it easier for victims with relatively low exposure to asbestos to succeed in claims, but significant hurdles still remain for many mesothelioma victims who do not know exactly where or when they were exposed to asbestos, whose former employers are no longer trading, and whose insurers cannot be traced.

In Sienkiewicz (Administratrix of the Estate of Enid Costello) v Greif, a seven-judge Supreme Court unanimously ruled that when applying the Fairchild exception in cases of single exposure, the court does not require claimants to go further than to show that the tortious exposure materially increased the risk that the claimant would develop mesothelioma.

The actual mechanism by which mesothelioma develops is not fully understood: it is known that the more we are exposed to asbestos fibres, the more likely we are to develop the disease; that there is a period normally of around 30 years between exposure to the fibre or fibres that go on to cause the disease and the development of the first malignant cell; and that between that date and the point at which the disease can be diagnosed there is a delay of at least 5 years.

Sadly, from the date of diagnosis the victim’s health deteriorates rapidly and horribly, and death normally follows within eighteen months to two years.

There is currently no cure.

The legal issue that caused difficulty to claimants was that because the current state of scientific understanding makes it impossible for a claimant to satisfy the normal standard of proof in these cases, because of the difficulty in proving which particular incidence of exposure to asbestos dust caused the disease to develop.

It is a hideous disease and its victims deserve special treatment by the law and have received it following the decision of the House of Lords in the case of Fairchild.

The defendants’ arguments in Sienkiewicz were based on the fact that the epidemiological evidence suggested that the amount by which the risk was increased over and above the background environmental exposure we all have to asbestos in the atmosphere was small; the risk to Mrs Costello was found to be increased by 18% by her exposure to asbestos in the workplace.

The defendants argued that the test should be that the claimant needed to show that the negligent exposure at least doubled her risk of developing the disease.

The Supreme Court were unanimous in concluding that this is not the standard claimants have to meet.

It was however fortunate for Mrs Costello that her former employers were a long-established international company and are still trading.

It has been compulsory since 1972 for employers to carry insurance, but successive governments have failed to take action to protect employees whose employers flout the law or go out of business so that their insurers cannot be traced.

There are many cases involving small sub-contractors and foreign companies with operations in the UK operating without EL insurance.

Claimant representative groups have been campaigning for many years for the creation of an Employers’ Liability Insurance Bureau (ELIB), a fund of last resort to pay compensation to employees whose employers and/or their insurers cannot be traced.

As matters stand at present, the insurance industry has addressed part of the problem by creating the Employers’ Liability Tracing Office (ELTO).

As from April 2011, all insurers who join ELTO (it is not compulsory) will be required to supply policy data on all new and renewed employers’ liability policies.

This is a step in the right direction but clearly too little, too late.

It is time the government pressed ahead and created ELIB.

For mesothelioma victims seeking to pursue claims in relation to workplace exposure many years ago, what is needed is a scheme that will quickly secure them the compensation they desperately need.

While many expect mesothelioma cases to peak between 2015-2020, many buildings built between 1960-1975 will be reaching the end of their lives now or in the near future and will contain hidden asbestos.

Large buildings may be demolished with industrial containment, but many smaller building may be demolished in a non-controlled manner.

Asbestos and mesothelioma is not an issue that is going to go away.

Susan Brown is a Director at Prolegal, a law firm advising on complex personal injury, employment and family law.