Developments in the Law Relating to Mesothelioma

The Act is designed to provide a means for compensating the victims of an occupational illness described by the Supreme Court in the landmark decision of Sienkiewicz v. Greif (UK) Ltd and Knowsley MBC v. Willmore in 2011as "a hideous disease that is inevitably fatal” when the relevant insurer cannot be traced.

The Act provides for a pool of insurance company funds to be made available for those victims who are able to establish that they developed Mesothelioma as a result of unlawful exposure to inhaled asbestos caused by an identified Defendant who either is impecunious, often no longer trading and for whom insurance cannot be traced.

Controversially however the Act only provides for the mesothelioma suffer to receive 80% of the value of the compensation amount that they would have received had the matter gone to Court and only applies to victims of the disease first diagnosed on or after 25 July 2012. It does not cover other types of asbestos related illness or indeed any other uninsured occupational illness or injury.

The 80% provision is seen as a compromise that the insurance industries parliamentary backers were prepared to agree to.

This is particularly harsh to the victims and family members of those affected by this illness which typically has a 30-40 year latency period.

In other words the average mesothelioma victim in 2014 was likely to have had unlawful exposure to inhaled asbestos from the early 1970s onwards.

In 1969 two pieces of legislation were passed that had particular significance; one being the Employers Liability Compulsory Insurance Act and the second being the Asbestos Regulations.

It does therefore appear particularly unfair to the victims that the insurance industry which has had the capacity to profit significantly from the inception of compulsory employers liability insurance cover for 4½ decades, is now largely perceived itself as a "victim” in some sense whose commercial interests have been weighed against the desperate needs of the very parties whose interest the 1969 legislature was intended to protect. 

According to the Office for National Statistics some 2,091 persons died of mesothelioma in 2011.  

Asbestos exposure is according to the Health & Safety Executive, the greatest single cause of work related deaths in the UK and the annual number of mesothelioma deaths is not expected to peak until later this decade, when it is expected to reach 2,500 per year.  Up to 85% of these deaths are according to the Health & Safety Executive are believed to be occupationally related.  

According to the Department for Work and Pensions the projected number of mesothelioma deaths in the UK over the next 30 years is expected to reach 56,000 to 63,000. Most of those victims are now living and unaware that they carry a fatal legacy of their exposure to asbestos. Once they are given a diagnosis there is usually a rapid deterioration in health. They will not form a lobby group and will not have any political clout.  The insurance industry on the other hand is very vociferous and politically effective in protecting its shareholders interests.

For an individual diagnosed with Mesothelioma a compensation claim can improve their quality of life and remove a source of anxiety about providing for loved ones and the legal procedures for seeking compensation have recently been streamlined but it is still extremely important to seek urgently specialist legal advice. 

In June 2013 the Civil Procedure Rules were amended to include a new Practice Direction in relation to mesothelioma claims, which provides practical assistance to the smooth running of these cases where time is very much of the essence.  The Practice Direction provides for the Court to be able to provide an early Case Management Conference at which an interim payment of £50,000 can be made (in addition to claims to the DWP under the Pneumoconiosis etc (Workers Compensation) Act 1979.

Where liability is at issue, under the new rules the Defendant (in effect in most cases essentially the paying party being the insurance company) is required to "show cause” as to why Judgement should not be entered.  

Following the Sienkiewicz case referred to above, it is no longer necessary for the mesothelioma victim to prove that their exposure to occupational inhaled asbestos fibres has 'more than doubled' the chance of developing the illness, as was previously the case but that the exposure made a material contribution to the onset of the illness on a balance of probabilities.

Where liability remains in dispute, the trial will normally take place within 16 weeks of service of the Court Claim Form.  In addition, there is provision for the admission of deposition evidence given by the victim on video so that their evidence can be provided by DVD with transcript provided.

These developments should greatly assist many victims of mesothelioma in securing compensation payments at a significantly earlier stage.

Carrs Solicitors specialise in providing work related injury and occupational illness cases to include mesothelioma claims at no cost to our clients.

If you would like free advice regarding mesothelioma claims or other asbestos related industrial disease cases, we are happy to visit you and to give free advice either during or out of office hours.