Personal injury advice from
Thompsons Solicitors
Our Lawyers Response on Improving Mesothelioma Claims Handling
Our lawyers, Thompsons Solicitors, only act for the victims of personal injury, never for insurance companies or employers. They have a network of offices nationwide, with specialist asbestos litigation teams in each region and pursue several hundred cases each year on behalf of the victims of mesothelioma and their families.
Thompsons regularly participates in government consultations on legislative issues.
What is Thompsons’ History in Asbestos Disease Litigation?
How is Compensation Recovered for Mesothelioma Victims?
How is a Mesothelioma Claim Made When there is a Solvent or Insured Defendant?
Thompsons’ Recommended Changes to the Mesothelioma Compensation System
What are the Possible Outcomes of a Mesothelioma Claim?
Can Mesothelioma Sufferers Claim any DWP Benefits?
What is Thompsons’ History in Asbestos Disease Litigation?
Thompsons have been actively involved in many of the legal challenges that have determined the way in which compensation claims for asbestos related diseases are handled in England and Wales, since they achieved the first successful asbestos claim for a worker in 1972 (Smith v Central Asbestos Company Limited).
In a 2002 Court of Appeal case, our lawyers represented one of the claimants in the group of mesothelioma appeals, collectively known as Fairchild. In another group of conjoined appeals in the House of Lords in 2006, known as Barker, they acted on behalf of the widow of a mesothelioma victim.
It is always our lawyers aim to recover maximum compensation for the innocent victims of industrial diseases in the shortest time possible, at no cost to the victim.
How is Compensation Recovered for Mesothelioma Victims?
There are various ways in which compensation may be recovered for the victims of mesothelioma, as follows:
1. A civil compensation claim against the company or companies who negligently exposed the person to asbestos.
2. Benefit Payments from the Department of Work and Pensions (DWP), including: Industrial Injuries Disablement Benefit (IIDB), Disability Living Allowance (DLA) for Mobility (DLAM) and / or for care (DLAC) and Constant Attendance Allowance (CAA).
3. Payments made under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 (PWCA).
How is a Mesothelioma Claim Made When there is a Solvent or Insured Defendant?
A civil compensation claim for damages can often be made in cases where the company responsible for the asbestos exposure is still in existence and has sufficient assets or insurance to cover the claim.
Even if a company is no longer trading, a civil claim may be possible if its insurers are still operating and can be traced.
Sadly, around 10-20% of claims for mesothelioma are unsuccessful due to the lack of a traceable employer or insurer.
Thompsons’ Recommended Changes to the Mesothelioma Compensation System
Thompsons believes that certain changes would enable a faster, more efficient and fairer conclusion to mesothelioma claims as follows:
• The Court Service
The Royal Courts of Justice (RCJ) in London currently operates a fast track procedure for mesothelioma claims, which manages cases efficiently and, where there is a clear breach of duty on the part of the defendant, offers an immediate judgment.
In such cases the RCJ will normally order an interim payment of £40,000 or more within weeks of proceedings being issued and a further hearing (called a disposal hearing) within a matter of months to resolve any outstanding issues relating to the level of damages. Most cases however do not require a disposal hearing and the average duration of a case is only a few months, making it possible to conclude most mesothelioma claims within the sufferer’s lifetime.
Unfortunately increasing demands on the RCJ system mean that greater resources are required to prevent it from becoming overloaded.
Most other court centres across England and Wales do not offer the same level of service as the RCJ in lowering the duration of cases, even those which have a system in operation for treating mesothelioma claims as priority.
Thompsons would therefore recommend that more resources are available to the RCJ fast track system and / or that a similar system is developed and monitored in other centres against RCJ criteria, so that a greater number of claims can be dealt with more quickly.
• State Compensation Schemes
1. PWCA Payment Increase – Currently, payments made under the scheme for living claimants range from £65,531 for those aged 37 and under, to just £10,180 for people aged 77 and over.
Thompsons would recommend that the levels of compensation be brought into line with the JSB (Judicial Studies Board) guidelines for general damages in mesothelioma claims, based on the pain, suffering and loss of amenity caused. This would bring the range to a more logical £47,850 to £74,300.
2. Deduction of PWCA Payments – At present, anyone who has received a payment under the PWCA will have this amount deducted from the compensation due to them from the company who exposed them to asbestos, or their insurers.
When this deduction is made, the payment is not refunded to the state so, in effect is a bonus for the negligent party or their insurers.
Thompsons recommendation would be that, in the same way that DWP benefits are refunded to the Compensation Recovery Unit, the compensator should have to refund any PWCA benefits to the state. This would prevent the wrongdoer from benefiting from the system and provide the state with income from the recovered payments.
3. IIDB Eligibility – Industrial Injuries Disablement Benefit is currently only provided to sufferers who have developed mesothelioma as a result of their own occupational exposure to asbestos.
This means that in some cases of para-occupational exposure (for example spouses, partners and children of asbestos workers), there are no means of recovering compensation if there is no existing company or traceable insurer to claim against, or if the court is unwilling to find that there has been a breach of duty.
It would be Thompsons’ recommendation that the eligibility regulations are relaxed to include cases of para-occupational and environmental exposure. There are relatively few cases of this nature, as far as we know no more than 100 per year, so the cost of making PWCA and DWP payments to those with no other means of recovering damages would not be too great. It would however put right the fact that some innocent victims of mesothelioma have no right to compensation when they developed the disease through the negligence of someone else.
• Differences in the Assessment of Mesothelioma Damages Between Scotland and England and Wales
Currently there are considerable differences in the levels of damages awarded to the families of mesothelioma victims between the separate jurisdictions of Scotland and England and Wales as follows:
1. Damages for Bereavement – In Scotland, the bereaved spouse of a mesothelioma victim is awarded £28,000 compensation and additional awards of around £10,000 can be made to other family members such as children and siblings.
The situation in England and Wales is somewhat different. Any mesothelioma deaths on or after 1st April 2002 would give rise to an award of just £10,000, which in most cases is only payable to a spouse.
There is no justifiable reason why the compensation should differ so greatly for a family suffering a bereavement due to mesothelioma in England and Wales from a similar family in Scotland.
2. Relatives’ Claims - The Rights of Relatives to Damages (Mesothelioma)(Scotland) Act 2007 now means that relatives’ entitlement to make a compensation claim is not affected by the person suffering from mesothelioma settling a claim during their lifetime.
An amendment should also be made in England and Wales. An alternative would be an amendment to Civil Procedure Rules, to allow applications for interim payments to be made by claimants if they decide not to pursue a full and final settlement whilst still alive. This would ensure that their family were not prevented from making a further claim following their death.
Further details about this matter were reported in articles by: BBC News, Shields Gazette, Sunderland Echo and ASLEF Journal, with comments from The Legal Line's solicitors.
• Insurance Fund of Last Resort
Since 1st January 1972, when the Employers Liability (Compulsory Insurance) Act 1969 was implemented, all employers have been obliged to hold insurance for personal injury or illness to their employees.
Before then however many employers, particularly those associated with asbestos, already took out liability insurance, so in fact most were insured.
The insurance industry has been taking these premiums and, since 1972, these have been taken from a captive market. Part of the reason that it is not possible to trace insurers in many mesothelioma claims is that the insurance industry has not kept sufficient records.
If an insurance fund of last resort was created, it would provide means of paying compensation to mesothelioma victims where the defendant was no longer solvent and there is no existing or traceable insurer. Those eligible for payment from the fund would be individuals whose cases met the following criteria:
• Their asbestos exposure was due to proven negligence or breach of duty on the part of an insolvent or no longer existing employer
• An ABI search produced a negative result
The payments would be funded by a compulsory levy on the insurance industry.
What are the Possible Outcomes of a Mesothelioma Claim?
The table shown below outlines a range of the circumstances which may arise in mesothelioma compensation claims and the potential result, i.e. whether the claimant would be likely to receive full compensation, partial compensation or no compensation at all.
One of the variables that has an effect on the outcome of a claim is whether the victim was exposed to asbestos via their working conditions (see ‘EL’ for employers liability in the table) or by other means, for example if a family member came into contact with the contaminated clothing of an asbestos worker or a person lived in close proximity to an asbestos factory (see ‘PL’ for public liability in the table). Where ‘T&N’ is referred to in the table, this relates to claims against Turner and Newall Plc.
| Levels of Damage Recovery | Type of Claim | Status of Defendant | Insurance Status | Payments due to claimant |
||
|---|---|---|---|---|---|---|
| DWP Benefits | PWCA 1979 | Damages | ||||
| Full | EL EL Post 1972 EL PL |
Solvent Solvent Insolvent |
N/a Solvent Insolvent
|
Yes1 Yes1 Yes1
|
No Yes2 Yes2
|
100% 100% 100%4
|
| Partial | Pre 1.1. 1972 EL
Post 1969 T&N EL Pre 1969 T&N EL PL T&N |
Insolvent
|
Insolvent N/a
|
Yes1
|
Yes2
|
90%4
|
| Nil | EL PL |
Insolvent Insolvent |
No Trace No Trace |
Yes No |
Yes No |
Nil Nil |
1 Refundable to DWP via CRU
2 Payment offset in full against damages to exclusive benefit of defendant insurer
3 Payment made at dividend of scheduled value under T&N UK Asbestos Scheme
4 Payment made by FSCS
Can Mesothelioma Sufferers Claim any DWP Benefits?
Only mesothelioma sufferers who have developed the disease due to asbestos exposure at work can claim DWP benefits. In order to be considered eligible for payments under the PWCA, or DWP benefits, the exposure must have occurred during the course of employment.
Therefore anyone who has developed mesothelioma via other means (for example family members of asbestos workers) would not be entitled to claim these benefits.
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