Asbestos death damages confirmed

The Court of Appeal has dismissed an appeal filed by Grech & Company Ltd and Square Deal (Laundry and Dry Cleaning) and ordered appellants to pay over Lm20,000 in damages to the heirs of one of their employees who died of asbestosis.

The court heard that in 1997 Jane Desira and her children filed their writ against the companies in their capacity as heirs of the late Anthony Desira.

Plaintiffs had claimed that Mr Desira had worked with defendant companies since 1964 when he was 17 until he was boarded out at the age of 40.

In May 1995, Mr Desira was diagnosed as suffering from Mesothelioma of the pleura of his lungs and died in August of the following year.

In the years he worked for the companies, Mr Desira had been in contact with asbestos and it resulted that this material was used in the factories belonging to Grech & Company Ltd.

The companies had claimed that Mr Desira's actual work did not put him in contact with asbestos, and the covering of pipes in the factory with asbestos was extra work that the employees did voluntarily.

However, this argument was dismissed by the first court which held that the employer was always bound to supply a safe system of work independently of whether the employees carried out their normal work or did extra work.

The first court concluded that the employees had not been provided with protective clothing and that they did not work in an environment that was suitably ventilated.

The two companies were ordered to pay Mr Desira's wife and children Lm20,000 in damages.

The two companies appealed from this judgment to the Court of Appeal, while the heirs lodged an incidental appeal on the quantum of damages.

The Court of Appeal, composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti, heard submissions by the companies to the effect that they were not responsible for Mr Desira's illness and death.

The Court of Appeal declared in its judgment that the first court had properly examined all the evidence produced and had found that the version of the heirs was more credible than that of the companies.

Other employees had testified that they had not been given protective clothing and that their unions had complained of this to the management.

The companies further submitted that asbestos had not been prohibited at law from being imported and that it was used in various factories worldwide. However, the Court of Appeal noted that the surgeon who had operated upon Mr Desira had testified that the association between asbestos and lung tumours was well known as far back as the 1970s, and it was not correct to say that at the time of Mr Desira's employment, no one was aware that asbestos was dangerous.

After dismissing the companies' appeal, the Court of Appeal proceeded to examine the heirs' appeal on the quantum of damages.

The court found that the first court had correctly established the damages that had been sustained by the heirs due to the loss of income on the part of Mr Desira, and this in the sum of Lm20,000.

However, the first court had not ordered the two companies to pay the heirs the sum of Lm360.80 which represented the funeral expenses.

In conclusion the Court of Appeal confirmed the judgment of the first court insofar as it had found the two companies responsible for Mr Desira's death.

The court however varied the damages to be awarded to the heirs and ordered the companies to pay the heirs the total sum of Lm20,360.80 together with all the costs of the litigation and with legal interest as from the date of the judgment of the first court in June, 2002.