Mesothelioma sufferers may be able to make a claim for compensation in the civil courts based on the employer’s negligence or breach of statutory duty to protect them from the deadly effects of asbestos dust and fibres. It is vital that anyone diagnosed with mesothelioma acts quickly. It is a complex area of law and it is essential that evidence is taken and preserved as soon as possible.
The solicitor
It is very important to work with a solicitor experienced in mesothelioma claims. The person should find out how many mesothelioma cases a solicitor has dealt with, what are their success rates and compensation figures.
Fees
Bringing a mesothelioma claim should not leave a claimant out of pocket financially. The solicitor should normally work under a conditional fee agreement, also known as a ‘no win no fee’ agreement. Currently, if the case is successful the claimant will receive 100% of the compensation claim. Mesothelioma cases are exempt from the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which means that the solicitor can recover his or her fees and after-the-event insurance from the defending company or insurer.
Witness statement
It is vital that the solicitor records the evidence in a witness statement as soon as possible. This ensures that the evidence of when, where and how a person was exposed to asbestos is preserved. The solicitor will talk to the claimant face-to-face in the comfort of their own home or somewhere familiar.
Medical history
The solicitor will ask the claimant to sign authority forms so that the lawyer can access the person’s medical records from their GP and consultant. He or she will also arrange for a respected and experienced specialist consultant in this field of medicine to confirm the diagnosis of mesothelioma. The Ministry of Justice is working with the National Cancer Registration Service and Public Health England to speed up the process of obtaining hospital medical records.
Work history
The solicitor will apply to the HM Revenue and Customs for the claimant’s work history. From the witness statement and work history, the solicitor will make efforts to trace the relevant employers and/or insurance companies. HM Revenue and Customs will soon be given the ability to provide the work history of deceased mesothelioma victims to their dependants without permission from the courts.
Benefits
The solicitor should advise on applications for government benefits, including Industrial Injury Disablement benefit, which is more than £600 per month. A mesothelioma sufferer may also be entitled to a lump sum payment from the government under the Pneumoconiosis Etc. (Workers’ Compensation) Act 1979. This is payable where a former employer is not trading anymore and insurers cannot be found. Also, under the 2008 Diffuse Mesothelioma Scheme, a lump sum is payable when the claimant does not know where or how they were exposed to asbestos dust and fibres. These can be significant amounts, which are paid quickly by the government, and can provide early financial assistance for a victim’s care and treatment. It is important that government benefit forms are completed properly and strongly set out the claimant’s case for support. Not only will the forms be used to decide whether the person is entitled to benefits and the amount payable, they may be used as evidence during the civil claim for compensation.
Additional experts and witnesses
A successful mesothelioma case can be complicated. It is not always enough to be diagnosed with mesothelioma and to identify a time and a place when the exposure took place. For example, it may be necessary to demonstrate that the level of asbestos dust inhaled was above the occupational hygiene level in place at the time of the exposure. The solicitor will be well practiced in gathering evidence from expert witnesses (medical consultants, engineers and care experts) to strengthen a case and may also have to appeal to former work colleagues to be witnesses for their claim.
Fast track
There is a specialist Mesothelioma Fast Track court procedure to benefit sufferers and ensure where possible they have the benefit of any compensation in their lifetime. Once a claim has begun the court asks why judgement should not be given on the case. If there is no credible defence judgement will be given and a mesothelioma sufferer will be awarded £50,000 as an interim payment.
If a company or insurer cannot be found
The government has set up a fund called the Diffuse Mesothelioma Payment Scheme to provide financial support for sufferers and dependants when compensation cannot be claimed because it has proven impossible to trace a previous employer or insurance company. People suffering from the aggressive and terminal cancer can apply to receive 100% of the average compensation award for civil claims made. The fund only helps those people diagnosed with mesothelioma after July 25, 2012. It is important to remember that it is not enough for a victim to simply show that they have mesothelioma. A victim has to show that legally they would have had a good case if the employer or its insurer could have been traced.
Settlement
To encourage a quicker conclusion to the legal process, the solicitor will look to settle the claim out of court where possible. A settlement can occur at any stage of the process from first contact with former employers or insurance companies. Most mesothelioma cases are settled before going to trial.
In court
When court proceedings are started, all cases will be referred to a judge experienced in mesothelioma claims, but only rarely do cases go to a full trial. A case will usually only be decided by trial if it is particularly complicated, there are multiple claims and defendants, or it involves a disputed point of law or evidence. A trial may require a person to give evidence in court to a judge but other arrangements can be made for a victim’s evidence to be given on video at home if they are too unwell.
Timescales
Every case is different and decided on its own facts, which makes it difficult to say how long the legal process will take. Most solicitors will aim to settle a claim without going to court within four to six months for people living with mesothelioma but it can take longer, for example, if the case requires the solicitor to trace witnesses or the insurance company of an out-of-business employer or the case has other complications.
How much?
No two cases are the same and the judge will assess the amount of compensation based on what the evidence is about the claimant’s life. The judge will take into account such considerations as age, pain and suffering, loss of amenity, loss of earnings, medical expenses, care costs, services that might be needed around the home, and the financial dependency of spouses. An average award is £145,000 but these awards can be significantly higher and sometimes lower.