When people talk about compensation claims, they are often referring to straightforward road traffic accident claims, where perhaps an individual has suffered whiplash, or where someone has tripped over in the street and is pursuing a claim against the local council.
In those sorts of cases, there has been concern about the costs involved in pursuing such claims and the number being made. However, it is often forgotten that in England, fault still has to be established, and for several years now there have been more streamlined procedures.
Changes in early 2013 saw even more streamlining, resulting in significantly reduced costs involved in pursuing such claims. Where does that leave us when considering far more complicated compensation claims, especially those involving industrial disease?
Imagine a man who worked for some 50 years for one employer and is aged 70, enjoying his retirement, before suddenly being told that he was suffering from mesothelioma as a result of asbestos exposure during his employment. Surely most people would accept that his claim differs significantly from the former examples?
However, recent attempts have been made by the insurance industry to apply the same sort of streamlining to such cases. There are in fact many reasons why claims for compensation for mesothelioma differ significantly from “normal” personal injury claims for compensation.
What is Mesothelioma?
Mesothelioma is a type of cancer which most frequently occurs in the tissues covering the lungs and the abdomen. It is generally accepted that the vast majority of mesothelioma cases are caused by exposure to asbestos. This involves a process where the inhaled asbestos fibres accumulate and, over many years, can result in development of mesothelioma.
Diagnosis can be between 20 and 60 years after exposure to asbestos. I have been pursuing claims for compensation for mesothelioma for more than 25 years. Throughout that time, I have witnessed the unbearable suffering of individuals diagnosed with mesothelioma.
Cases that I have dealt with have involved individuals exposed to asbestos from the early 1940’s onwards. It is often said that the employers did not know in those days the risks of exposure. However, there were even reports back in 1898 of asbestos and significant developments in the early 1930’s on the risks of exposure to it.
This means that often claims are taken against employers going back many decades. Unfortunately some employers no longer exist. When investigating a claim, it is necessary for me to identify all the relevant employers that may have exposed an individual to asbestos, track down the details of the employers, and more importantly their employer’s liability insurers, so that there is somebody available to actually pay compensation if the claim is successful.
There have been many cases where individuals suffering from mesothelioma have not been able to obtain rightful compensation because they have been unable to trace their former employer’s insurers, and where the former employers no longer exist to satisfy any award.
The Mesothelioma Act 2014
The Government has reviewed this situation and in early 2014 implemented the Mesothelioma Act, a compensation scheme which enables individuals to obtain compensation in such cases. For more information on the Act, please click here.
While this is a great step forward for sufferers, unfortunately the scheme is very limited, for example only applying to individuals where they have been diagnosed with mesothelioma since July 25, 2012.
At the same time as trying to help those who are suffering and cannot locate their former employer’s insurers, there have been attempts to change how the cases proceed generally.
There has been a major overhaul of how personal injury claims proceed since April 1, 2013, with many types of claims dealt with through an online “portal” system. These cases are then subject to a fixed timetable, fixed costs, and leave little room for proper investigation and dealing with unusual circumstances.
There have been proposals to extend such a process to mesothelioma claims. Thankfully, those proposals have been rejected by the Government, which has recognised that these cases are quite unique.
Specialist Help is Key
Although mesothelioma can develop many years after exposure to asbestos, once it is diagnosed, the mortality rate is around 85% within three years of diagnosis. This means that solicitors such as myself have to act very quickly.
It involves me having very difficult conversations with the injured person and importantly their immediate family. News of a terminal illness is devastating, but to then have to cope with a litigation process at the same time is clearly more problematical.
The solicitor pursuing the claim has to fully understand all the medical issues and the immediate care needs, to be sympathetic to the individual’s position but at the same time be practical to pursue the claim as quickly as possible and seek to recover maximum compensation and interim payments.
The injured party may not be well enough to travel, so home visits are often necessary. Frankly, the level of service required would simply not be possible under any fixed costs scheme or indeed a process that restricts the work required.
I am pleased to say that this has been recognised by the Government. Unfortunately, at the same time, the Government has indicated that in the future mesothelioma claimants will still face difficulties in pursuing claims as they will no longer be able to recover certain aspects of the costs of the case.
Changes in the Future?
If a claim is pursued under a “no win-no fee” scheme, it is usual for a success fee to be claimed by the solicitor. This represents a sort of bonus to offset the risk of failing and the deferral of recovery of costs until the very end of the claim.
Although a success fee at present continues to be recoverable from an opponent in a mesothelioma claim, it is likely that from April 2014, it will no longer be recoverable, and the claimant will have to pay the success fee themselves. In some instances, it is also necessary to consider taking out legal expenses insurance once a claim is started to give protection to the claimant for any claim for costs against them. Again, at present the costs of such legal expense insurance is recoverable from an opponent but in the future it will not be.
These aspects could well dissuade individuals from pursuing perfectly reasonable claims. The motive for an individual mesothelioma sufferer making a claim might not be to seek retribution from a negligent employer.
More often it is to recover just and proper compensation to ensure the family left behind after they have died have adequate financial resources. In view of all these changes, it is even more important to ensure that a specialist solicitor with experience of handling mesothelioma claims is instructed as soon as a diagnosis is made.
If you have any questions in relation to the topics discussed in this article, please contact our expert Personal Injury team in Derby, Leicester and Nottingham on 0800 024 1976 or via our online form.