Asbestos and Asbestos Related Diseases
Asbestos is a mineral that was used extensively in insulation in this country over the last century. Its uses included insulating pipework, vessels and brake linings, insulation board, rope, string and even cloth.
People working in many trades, such as joiners, engineers and fitters, were at risk of breathing in asbestos dust and developing an illness such as mesothelioma, asbestos related lung cancer, asbestosis, diffuse pleural thickening and asbestos related pleural plaques as a result.
At present, those who have been diagnosed with pleural plaques as a result of exposure to asbestos dust are not entitled to compensation in England and Wales, following a decision by the House of Lords in October 2007. However, sufferers in Scotland are eligible for compensation, owing to the passage of the Damages Act 2009 which was introduced to ensure that the House of Lords ruling would not affect sufferers in Scotland. Campaigners in England and Wales, including support groups, MPs and solicitors, consider this “grossly unfair” and have repeatedly called upon the Government to overturn the October 2007 ruling. Regrettably, the Government continues to refuse to overturn the decision on the basis of current medical evidence.
Developments in England and Wales
The last 12 months witnessed the implementation and enforcement of the Legal Aid, Sentencing and Punishments of Offenders (LASPO) Act 2012, which introduced significant changes to the ways in which asbestos related disease claims are funded and litigated. Most notably, victims of asbestos related diseases, excluding mesothelioma, can no longer recover a success fee and ATE insurance premium from the Defendant. These fees are now payable by the victim from any damages they receive.
Shortly following the implementation of the LASPO Act, the Government launched a consultation to discuss a package of reforms to the procedures governing mesothelioma claims in England and Wales, where the employer or the employer’s liability insurers are traceable. The reforms included a new mesothelioma Pre-Action Protocol, fixed fees and an online Portal similar to the RTA and EL/PL Portals. The majority of the proposed reforms were rejected but the Government announced that mesothelioma claims would no longer be exempt from the recoverability elements in the LASPO Act, these being any after the event insurance premium and success fees. Therefore, mesothelioma claims will be brought in line with the changes already introduced to all other personal injury cases, including other asbestos related disease claims. It is very disappointing to hear these changes so soon after the implementation of the LASPO Act. The full effects of the Act have not yet been felt and, until such time, the Government cannot properly consider the effects of the LASPO Act on mesothelioma claims. It is proposed that the changes will apply from July 2014, and campaigners continue their effects to prevent implementation.
Despite the disappointing changes brought in by the LASPO Act there have been significant strides in increasing awareness of asbestos related disease, implementing more rigorous management and regulation of asbestos, and widening the categories of people entitled to compensation.
The Mesothelioma Act 2014 was introduced. This Act seeks to compensate mesothelioma victims who are unable to trace their employer who exposed them to asbestos dust, or their employer’s liability insurers. The Act will establish a payment scheme for victims who have been diagnosed with mesothelioma from 25 July 2012 and will offer all victims in the UK a flat rate payout set at 80% of the average compensation received by those employees who have successfully pursued their employers. The scheme will be funded by a levy on insurance companies which provide employer’s liability and it will apply to the whole of the UK.
Action Mesothelioma Day took place at Liverpool Town Hall on 5th July 2013 where we had the privilege to listen to presentations from Dr Chris Warburton, Clinical Director/Consultant Respiratory Physician at Aintree Chest Centre, Dr Daniel Sterman, Professor of Medicine at the University of Pennsylvania Medical Centre, USA, and Kay Kennedy, Lung Cancer Specialist Nurse at Arrowe Park Hospital. Dr Sterman’s presentation is worthy of note as he explained his research into the diagnosis and treatment of pulmonary diseases and his current work of conducting clinical trials in a variety of therapies such as immunotherapy for mesothelioma patients. It appears that the medical profession is getting closer to developing therapies that may cure mesothelioma suffers.
The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was passed by the Welsh Assembly. The Bill allows the NHS to recover costs of treating victims of asbestos related diseases from negligent employers or insurers. However, the Bill was subsequently referred to the Supreme Court for the Court to consider whether the Welsh Assembly has the power to pass the legislation. The Court’s decision is awaited.
The Association of Personal Injury Lawyers (APIL) has launched a campaign to make a fairer system for bereavement damages awarded in England and Wales. They have called for an increase in the level of the award and the widening of eligibility for an award.
In late 2013, HM Revenue & Customs (HMRC) announced that they were no longer releasing work histories to legal representatives or the personal representatives of Deceased persons without a Court Order form the High Court. HMRC have advised that a request does not fall within the Data Protection Act 1998 as the Act only applies to personal information held about a living individual. APIL has been granted permission to be heard in an application before Master McCloud in May 2014 to determine the Court’s jurisdiction to make a pre-action order for disclosure. APIL have also been granted permission to intervene in the judicial review brought by HMRC against the Liverpool Coroner. HMRC are seeking to overturn a notice issued by the Coroner under the Coroners and Justice Act, requiring HMRC to produce a work history in connection with an asbestos related inquest. The HMRC’s actions impose upon the Government’s proposals to improve the efficiency and speed of processing mesothelioma claims. APIL and the Liverpool Coroner are working hard to ensure HMRC are required to release the information and quickly.
The Health and Safety Executive (HSE) says that asbestos is responsible for 4,500 deaths per year. In 2011, 2,291 people died from mesothelioma and this figure is expected to increase in future years peaking towards 2020. A further 178 died from asbestosis and 429 deaths occurred where asbestosis was likely to have been a contributing cause. Whilst a complete ban on the use and import of asbestos was introduced in 1999, people continue to be exposed to asbestos dust when working in buildings built before 2000, owing to inadequate or no protective equipment, unsafe work practices and a failure to identify asbestos containing materials. The Health and Safety Executive (HSE) has successfully prosecuted a number of firms in the last 12 months for exposing workers to asbestos dust. This illustrates the continued need to ensure that companies and employers are fully aware of their duties to plan, manage and properly monitor construction work. The HSE has recently issued revised guidance on managing and controlling asbestos and an Approved Code of Practice to make it easier for employers to understand and meet their legal obligations to ensure they work safely with asbestos.
Last year, the Committee on Carcinogenicity published its statement on the relative vulnerability of children to asbestos. The report found that children are more vulnerable to asbestos than adults over their lifetime. It found that a five year old is five times more likely than a thirty year old adult to develop mesothelioma if they are exposed to it at the same time. However, the Committee, the Government and experts say that there is no evidence that children’s’ lungs are more susceptible to mesothelioma, only that the risk to them is greater because of their expected longer life-expectancy and the time it takes the disease to develop. Following the report, the Department of Education (DfE) opened a consultation to review the current DfE policy on asbestos management in schools. The DfE does not manage asbestos in schools in England but supports the current advice of the Health and Safety Executive (HSE). The consultation ended on 31 March 2014 and the DfE’s response is awaited.
Hopes for 2014
In the next 12 months, we hope to see an increase to 100% compensation for victims under the Mesothelioma Act 2014, greater regulation to prevent exposure to asbestos dust and for HMRC to continue to disclose Deceased persons’ work histories without the need to apply for a Court order.
If you or a loved one have been diagnosed with an asbestos related disease within the last 3 years, you may be able to make a claim for compensation. If you would like to speak with someone please contact our friendly and professional team on 0151 236 8840 or