Asbestos solicitors in the UK bring about 2000 mesothelioma claims a year, mainly based on negligent asbestos exposure in various occupations such as factory work, construction work and plumbing. Between the 1950s and the 1980s asbestos was used extensively as a building material, especially for insulation and as a fire-retardant. The more dangerous varieties of blue and brown asbestos were banned in 1985, but asbestos-containing materials (ACMs), such as asbestos cement, continued to be used until 1999. Asbestos was often mixed with other materials, which now makes it difficult to identify. It is estimated that more than half a million non-domestic premises now have some asbestos.
At least 3,500 people in Great Britain die from mesothelioma and asbestos-related lung cancer each year, with annual numbers predicted to continue rising at least for the next ten years, reaching closer to 10,000 by 2010. Asbestos solicitors are usually first instructed following a diagnosis of cancer cells in a drained pleural effusion, or when a growth is noticed on a lung x-ray or CT scan. Most mesothelioma sufferers are only exposed through their work. A full statement is taken from the client, dealing not only with working conditions at the suspected negligent ex-employer but with all ex-employers, to determine where the asbestos exposure took place and to confirm the unsafe system of work. Statements are obtained from fellow ex-employees.
To identify exact periods of employment an employment history is obtained from HMRC. If the client has been exposed at any ex-employer they are fully liable whether or not any other ex-employer is also liable. It is not necessary to determine which ex-employer's negligent exposure caused the mesothelioma.In Fairchild v Glenhaven Funeral Services & Ors [2003] 1 AC 32, employees had developed mesothelioma from exposure to asbestos dust while at work, but there was uncertainty as to which of several employers was responsible for the exposure which had caused the disease. The Court of Appeal had held that for this reason causation could not be proved. However, the Lords held that, where there had been exposure by different employers but the precise causative point could not be identified, it was sufficient to find that the wrongdoing of each employer had materially increased the risk of contracting the disease.
The medical records are obtained and a report from a Consultant Chest Physician on causation and, after an examination,on condition and prognosis is obtained. A letter of claim is written to the ex-employer or their insurers. If liability is in dispute it will be necessary to instruct Consulting Engineers to report on the unsafe working conditions. Since mesothelioma sufferers tend to die within six to eighteen months following diagnosis, these claims can be expedited in the courts and/or an interim payment of damages can be obtained before the case is settled and the proceedings are then continued by the personal representatives.
Asbestos lawyers bring a claim for a client's severe pain and impairment of both function and quality of life and will usually obtain compensation for the client of between 45k -80k for this alone. His or her mesothelioma may be of the pleura (the lung lining) or of the peritoneum (lining of the abdominal cavity); the latter being typically more painful. The duration of pain and suffering accounts for variations within the bracket. For periods of up to 18 months, awards in the bottom half of the bracket may be appropriate; for longer periods of four years or more, an award at the top end.
This award will only be for the client's pain and suffering, and other awards are made to compensate for the resulting financial losses both before and after the client's death. Under the Fatal Accidents Act 1976 a bereavement payment for a spouse of 11,800 is awarded. The loss to his or her dependents of the earnings the deceased would have earned or the services he/she would have provided in the future, such as DIY or housework, can also form part of the asbestos compensation claim by way of a "dependency" award. Under the Law Reform Act your asbestos solicitors can also obtain damages for funeral costs and the cost of care and/or the deceased's lost earnings prior to death.
If mesothelioma hasn't actually developed yet but there is a significant risk that it will, and there is also a symptomatic condition such as pleural thickening causing breathlessness, then on top of an award damages for the client's pain and suffering with pleural thickening, which is in a bracket between £23k-46k, the asbestos solicitor will obtain an award of provisional damages for mesothelioma,which allows the claimant to return to court for more compensation if the condition does develop. In contrast in 2007, the law lords upheld a Court of Appeal decision that the existence of asbestos-related pleural plaques, a scarring of the lungs, does not constitute actionable or compensatable damage.This also applies to pleural thickening without any associated breathlessness.
A distinct problem from establishing liability is enforcing any judgment. In October 2001 the Court of Appeal,overturning a 2008 High Court ruling on mesothelioma, decided that in some cases, employers' liability insurance is triggered not by exposure to asbestos, but by the onset of symptoms. Unfortunately this will leave some victims with no access to compensation because their employer may not have an effective insurance policy to meet the claim, and policy wordings may exclude previously eligible claimants.This decision means some insurers are required to pay while others are not, depending on words such as "injury sustained" or "disease contracted" used in insurance contracts written decades ago.
David Dickie (d.dickie@timms-law.com) is a member of the Law Society's Personal Injury Panel and is a solicitor with Timms Solicitors, Derby, UK.
Read more about mesothelioma claims at http://www.timms-law.com/asbestos-solicitors----mesothelioma-compensation-claims.aspx and at http://www.timms-law.com/mesothelioma-claim.aspx
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