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Published online by Cambridge University Press: 06 March 2019
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.
* Richard Best is a solicitor and registered foreign lawyer working in the Frankfurt office of international law firm Ashurst Morris Crisp. The author would like to thank colleague Cornelia Hoestermann, Rechtsanwältin in the firm's Munich office, for her assistance in researching certain German issues, and John Evans, partner in the firm's London office, for his comments on an earlier draft. This paper is not intended to be a comprehensive review of all developments in the law and practice or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this paper to specific issues or transactions.Google Scholar
1 See, e.g., “Democrats Urge More Talks to End Asbestos Fund Bill Impasse”, 19 June 2003, available online via www.bloomberg.com and www.news.google.com Google Scholar
2 Members of the firm are also well versed in asbestos-related liabilities in other European jurisdictions but discussion of potential liabilities in these countries’ legal systems is beyond the scope of this paper.Google Scholar
3 For further information on asbestos related diseases see, e.g., American Academy of Actuaries “Overview of Asbestos Issues and Trends”, December 2001, p. 2, available online at www.actuary.org/pdf/casualty/mono_dec01asbestos.pdf and Asbestos Diseases Foundation of Australia Inc “Understanding the Disease” available online at www.smarta.com.au/asbestos/disease.html Google Scholar
4 For an historical account of the use of asbestos in the UK, see G Tweedale Magic Mineral to Killer Dust: Turner & Newell and the Asbestos Hazard (Oxford University Press, Oxford, 2000).Google Scholar
5 FitchRatings Special Report “Asbestos: Too Hot to Handle for European Insurers?”, 31 March 2003, available online at www.fitchratings.com Google Scholar
6 UK Department of the Environment, Transport and the Regions “Asbestos and Man-made Mineral Fibres in Buildings: Practical Guidance” (February 2000), para 3.1, available at: www.environmentalcenter.com/articles/article725/article725.htm#3 Google Scholar
7 These statistics are taken from HVBG Report on Occupational Diseases / Fibre Years, 1/1997, available via www.hvbg.de Google Scholar
8 See, e.g., “Europe Bans Asbestos!”, British Asbestos Newsletter, Issue 35, Summer 1999, available online at http://www.lkaz.demon.co.uk/ban35.htm Google Scholar
9 The Health Safety Executive's statistics are available online at: www.hse.gov.uk/statistics/2001/hsspt2.pdf. See further the FitchRatings report at note 5 above.Google Scholar
10 Figures taken from HVBG articles “Asbest: Berufsgenossenschaften befürchten bis zu 20.000 Todesfälle bis zum Jahr 2020” (17.12.02) and “Berufsgenossenschaften: 957 Todesfälle durch Asbest im Jahr 2000”, available on the HVBG website: www.hvbg.de Google Scholar
11 85/374/EEC.Google Scholar
12 This is but a simple outline; see generally A Dugdale (Ed) Clerk & Lindsell on Torts (18 ed, Sweet & Maxwell, 2001). For example, the notion of “physical harm” can include psychological harm, recoverability for which depends in part on either the pre-existence of outright bodily injury, the law's definition of and distinction between primary and secondary victims of psychologically harmful events and the different proximity requirements for each, or, in cases falling outside these categories, case-by-case analyses of proximity. See further note 24 below.Google Scholar
13 See, e.g., Holtby v Brigham & Cohen (Hull) Limited [2000] 3 All ER 421 (CA) (cumulative disease case); Fairchild v Glenhaven Funeral Services and Others, unreported, High Court, 1 February 2001 and Matthews v The Associated Portland Cement Manufacturers Limited and British Uralite plc, unreported, High Court, 11 July 2001 (competing High Court authorities regarding “all or nothing” disease cases); the Court of Appeal and House of Lords decisions in which this competing line of authority in “all or nothing” disease cases was addressed are discussed in the text following the reference to this note.Google Scholar
14 See Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052, 1063-1064, paras 21-26 (CA).Google Scholar
15 See Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 (CA); Fairchild, cited above at note 14, at p. 1073, paras 68-70.Google Scholar
16 [2002] 3 All ER 305.Google Scholar
17 [2002] 1 WLR 1052.Google Scholar
18 [2002] 1 WLR 1052, 1080, para 103.Google Scholar
19 [2002] 1 WLR 1052, 1080, para 103.Google Scholar
20 [2002] 3 All ER 305, 377, para 155.Google Scholar
21 [2002] 3 All ER 305, 382, para 168.Google Scholar
22 For some of the reported reactions to the House of Lords’ decision, see British Asbestos Newsletter, Issue 50, Spring 2003, available online at www.lkaz.demon.co.uk/ban50.htm. For a recent insurance case in which the effects of Fairchild were felt, see Phillips v Syndicate 992 Gunner and others [2003] EWHC 1084 (QB).Google Scholar
23 See, e.g., Margereson and Hancock v J W Roberts Limited, unreported, 27 October 1995, High Court; O'Toole v Irish Rail, British Rail and J W Roberts Limited, unreported, High Court, 19 February 1999; Shell Tankers UK Ltd v Jeromson and others [2001] EWCA Civ 101. In many cases liability has been admitted; numerous others have been settled before trial.Google Scholar
24 For a discussion of the law on this general issue (not regarding asbestos claimants), see the UK Law Commission's report no. 249 Liability for Psychiatric Illness (10 March 1998) available online at www.lawcom.gov.uk/files/lc249.pdf. See also The CJD Disease Litigation: Schedule 2 Plaintiffs v Medical Research Council and Secretary of State for Health (1998) 41 BMLR 157 and (2000) 54 BMLR 111.Google Scholar
25 Section 50(7).Google Scholar
26 Produkthaftungsgesetz of 15 December 1989 which, under § 19, came into force on 1 January 1990. Available online at http://dejure.org/gesetze/ProdHaftG Google Scholar
27 85/374/EEC, article 1.Google Scholar
28 Article 2.Google Scholar
29 Article 6.Google Scholar
30 Article 3(1).Google Scholar
31 Article 3(2).Google Scholar
32 Article 3(3).Google Scholar
33 Article 3(3).Google Scholar
34 Article 7.Google Scholar
35 See A & Others v The National Blood Authority [2001] 3 All ER 289 (HC).Google Scholar
36 National Blood Authority, note 35 above.Google Scholar
37 Article 10.Google Scholar
38 Article 11.Google Scholar
39 Judicial Studies Board's Guidelines for the Assessment of General Damages in Personal Injury Cases (6th Edition, 2002).Google Scholar
40 Ward v Newalls Insulation Co Ltd and Cape Contracts Ltd (1998) 1 WLR 1722.Google Scholar
41 See generally Civil Procedure: The White Book Service (Sweet & Maxwell, London, 2003).Google Scholar
42 [2000] 4 All ER 268.Google Scholar
43 See generally the German Berufsgenossenschaften website, which contains background information in both German and English: www.hvbg.de Google Scholar
44 The Sozialgesetzbuch is available online (in German) at www.sozialgesetzbuchbundessozialhilfegesetz.de/ Google Scholar
45 Section 9, SGB VII.Google Scholar
46 Section 1 of the Berufskrankheitenverordnung.Google Scholar
47 Section 104, SGB VII.Google Scholar
48 Section 110, SGB VII.Google Scholar
49 www.hvbg.de; see further sections 193(2) and 202, SGB VII.Google Scholar
50 Section 113, SGB VII and section 195, BGB.Google Scholar
51 Section 823(2), BGB.Google Scholar
52 See, e.g., BGH judgment of 9 May 1995, ZIP 1995, p. 1094 (an English translation of which can be found at www.iuscomp.org/gla/judgments/tgcm/z950509.htm); BGH judgment of 2 February 1999; NJW 1999, p. 1028.Google Scholar
53 Section 199(2), BGB.Google Scholar
54 Palandt, Ergänzungsband, § 199 Rn. 42.Google Scholar
55 Section 842, BGB.Google Scholar
56 Sections 823 and 249, BGB.Google Scholar
57 Section 843, BGB.Google Scholar
58 Section 844, BGB.Google Scholar
59 Section 847, BGB.Google Scholar
60 For a general introduction to civil procedure in Germany, see H Koch and F Diedrich Civil Procedure in Germany (Kluwer Law International/Beck, München, 1998). The author has also written a briefing comparing the differences between civil litigation procedures in England and Germany, copies of which are available via email or post on request.Google Scholar
61 “Ermittlungen wegen Asbest”, Der Spiegel, 36/2001, 3 September 2001, available online, at cost, at www.spiegel.de/spiegel/0,1518,155951,00.html Google Scholar
62 See Janssen v Germany ECHR Application No. 23959/94, 20 December 2001, at para 28.Google Scholar
63 LG Kiel, judgment of 3 April 1995, case no. 9 O 436/92 (unreported).Google Scholar
64 SchlHOLG, decision of 22 August 1995, case no. 11 W 29/95, OLGR 1995, 29.Google Scholar
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