Mesothelioma Act 2014 and the Diffuse Mesothelioma Payment Scheme

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1 Freephone Mesothelioma Act 2014 and the Diffuse Mesothelioma Payment Scheme A guide for clients Head and shoulders above the rest in terms of skills, experience and quality. The Legal 500 Caring for our clients Commitment to our cases Cutting edge expertise

2 The Mesothelioma Act 2014 received Royal Assent on Thursday 30 th January 2014 After months of debate and acrimony between victim support groups on the one hand and insurers together with the Government on the other, the dust is settling and we can see the outlines of the new Diffuse Mesothelioma Payment Scheme (DMPS) beginning to emerge. This is our guide to DMPS

3 What is it? The Mesothelioma Act 2014 allows the Secretary of State to set up a Diffuse Mesothelioma Payment Scheme. This is a Scheme that will make substantial payment to some mesothelioma sufferers in some circumstances. Various household insurers will contribute about 350m to fund the Scheme over the next 10 years, with the Government providing funding loans at the outset. It is expected to begin making payments from 1 July What is it for? Mesothelioma is a cancer that is caused by exposure to asbestos. In 1965 it became widely known that low levels of asbestos exposure could cause mesothelioma. Most exposure occurred at work and, for 30 years or more, most people with mesothelioma who were exposed to asbestos at work have been able to prove that their employers were liable. But mesothelioma takes decades to develop. Many of these employers cease trading by the time the mesothelioma appears, so that the sufferer has no employer to sue and cannot obtain compensation for his pain, suffering and for his own and his family s loss of income. Insurance has been compulsory for employers since 1972 but records are patchy and incomplete. Experienced law firms have found insurance policies in the past; but sometimes it is impossible to find an insurer. DMPS is intended to fill that gap. It can take decades for the effects of asbestos to show

4 What does it replace? Currently, someone who has mesothelioma following asbestos exposure, for instance from washing their husband s overalls or from living near an asbestos factory or from employment, is entitled to a payment under the 2008 Diffuse Mesothelioma Scheme. These payments range from 12,945 to 88,330. In addition, where no employer or insurer can be found, someone suffering mesothelioma following workplace exposure is entitled to a payment under the Pneumoconiosis etc. (Workers Compensation) Act With some minor exceptions, the payments made under the 2008 Scheme match the payments made under the 1979 Act. These are both no fault arrangements, where there is no need to prove negligence. It will not be possible to receive payments under the new DMPS as well as under the 1979 Act or the 2008 Scheme. Careful advice is needed before deciding which path to take: sufferers cannot make an application under the 1979 Act if they have made an application to the DMPS and an application under the 2008 Scheme will not succeed if there has already been a payment under the DMPS. Although the awards under DMPS are much higher than the awards under the 1979 Act and the 2008 Scheme, there may be advantages in applying for these lower payments in cases where liability will be difficult to prove.

5 Who Can Apply? People who have mesothelioma can apply Provided: they suffered asbestos exposure in employment and they were first diagnosed on or after 25 July Eligible Dependants can apply if the sufferer has died. Eligible Dependants include: the spouse the deceased s children (if there is no surviving spouse; provided they are either under 16; or under 21 and not gainfully employed; or permanently incapable of self-support) a reputed spouse (if there are no children) some other relative (who is wholly or mainly dependant on the deceased; if there is no spouse nor children nor reputed spouse)

6 How is the Award Calculated? The DMPS will make payments to the sufferer according to his age when he was first diagnosed or to his Dependants according to his age at death. After heated debate in Parliament, the awards will be fixed on a scale equating to 80% of the average value of claims that go to court. The awards will range from 69,649 to 216,896. Awards made to Dependants will be split equally between all eligible Dependants. What Does an Applicant Need to Prove? The DMPS is not a no fault scheme. The applicant will have to prove that he was exposed to asbestos in his employment as a result of his employer s negligence. He will need to prove he has mesothelioma; it is likely that form BI 100 PN (A) from his Lung Cancer Nurse or treating consultant or possibly a letter from his GP will be enough. He will need to demonstrate that he has taken steps to find his employer s insurer, but without success.

7 Who runs the Scheme? The Secretary of State has appointed an Administrator to run the scheme. The Scheme will be funded by means of a levy on the insurance industry. Will State Benefits be Deductible from DMPS? S.11 of the Mesothelioma Act allows state benefits to be deducted from Scheme payments and repaid to the Government. But there are technical details that may cause some difficulty. At present certain state benefits can only be offset against certain types of claim. For instance, someone who receives Industrial Injuries Disablement Benefit (IIDB) but who is retired has no claim for any loss of earnings. In a civil claim in the courts he does not have to give credit for that payment. Likewise, someone who receives Disability Living Allowance but who settles a claim in the courts at an early stage, before nursing care is needed, will not have to give credit for that payment. We do not yet know how the Scheme will deal with such payments when the applicant is being paid a fixed tariff award without regard to any loss of earnings claim or care claim.

8 What if The Claim is Not Accepted? If it is clear that the asbestos exposure occurred in employment then there are ways a claim might fail. Firstly, the Administrator might decide that the exposure was not negligent, for instance if the exposure was very light when judged by the standards of the day. An applicant who is not happy with the Administrator s decision can ask for a Review and then an Appeal to the First Tier Tribunal. It seems likely that the decisions of the DMPS Administrator will be capable of judicial review. Secondly, the Administrator might decide that he cannot deal with the application because there is an insurer after all. This might happen when a former director of the employer tells the applicant that there was insurance cover but the insurer refuses to accept the risk unless there are documents to prove it. For that purpose the Act sets up the Technical Committee which can make a binding ruling on the supposed insurer and upon the applicant. The Technical Committee can rule: that the applicant can pursue an insurer and so cannot make a DPMS claim, or that there is no traced insurer so the applicant can make a DPMS claim. Either way, the applicant will still have to prove negligence. Thirdly, the Administrator might decide that there was other exposure, where an insurer is available. For instance, there might have been exposure with multiple employers, as was common amongst laggers or in the construction industry, or the applicant might have been exposed to asbestos that was brought home on the clothes of other family members, or the claimant lived near an asbestos factory. It is not clear whether the Administrator is entitled to reject a claim in these circumstances. Fourthly, the Administrator might decide that the asbestos exposure was not significant, either because the exposure did not exceed background levels or because there was much more extensive exposure elsewhere in circumstances that are not covered by the DMPS.

9 Are There Any Time Limits? Applications must be made within 3 years of diagnosis (or within 3 years of the commencement of DMPS). The Administrator may be able to impose other time limits for taking steps in connection with any claim. Claims brought by Dependants must be lodged within the same time period (i.e. within 3 years of diagnosis). The Scheme Administrator may extend these time limits where there is good reason for failure to comply with these time limits and for any subsequent delay. What Evidence Is Needed? Some evidence of negligence, of the employer s identity and of medical diagnosis will be needed in every case, together with evidence that steps have been taken to trace the employer s insurer(s). The Administrator can direct an applicant or a Third Party (such as an insurer) to produce certain kinds of evidence or documents and can impose time limits. What if an Insurer is Found Later On? The Administrator can require the applicant (or his estate) to cooperate in a claim against that insurer. If that claim is successful then the DMPS will recover its outlay and the applicant (or his estate) will likely obtain a further payment, to match the difference between a full value award of compensation in the courts and the lower payments available in the DMPS.

10 Diffuse Mesothelioma Payment Scheme - Amount of Scheme Payments Age of the person with diffuse mesothelioma Scheme Payment 40 and under 216, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,548

11 Amount of Scheme Payments - Continued... Age of the person with diffuse mesothelioma Scheme Payment , , , , , , , , , , , , , , , , , , , and over 69,649

12 Meet the team The commitment to serving clients..is widely noted and appreciated. Legal 500 Peter Williams Head of Asbestos Team Andrew Morgan Partner Peter is head of the group. He has specialised in asbestos-related disease claims for 20 years and he gives annual talks to solicitors on the issues. The legal 500 recommends him as a leading personal injury lawyer who is universally respected, and superb with clients. Caroline Pinfold Partner Andrew has specialised in asbestos disease claims since He is a past coordinator of the Occupational Health Group of the Association of Personal Injury Lawyers (APIL) and is an APIL fellow. The Legal 500 describes Andrew as clever, hardworking and respected by opponents. Dushal Mehta Associate Caroline has specialised in asbestos disease claims for over 25 years. She is a Trustee of the East London Mesothelioma Support Group (ELMS). She is a member of Association of Personal Injury Lawyers and a Fellow of the Royal Society of Medicine. Chambers, a leading legal directory states she is incredibly hard working, has an eye for detail and fights very hard for her clients. Dushal specialises in asbestos disease cases, with specific expertise in mesothelioma claims. He joined the firm in 2009 and is a member of the Association of Personal Injury Lawyers. He has developed a reputation for securing early settlements in high profile cases. Alice Ketteringham Solicitor Alice trained at Fieldfisher and joined the Industrial Disease Department in 2013 having previously worked in the department as a paralegal. She specialises in cases arising out of asbestos related disease including mesothelioma, asbestosis, lung cancer and pleural thickening. Freephone Fieldfisher River Bank House 2 Swan Lane London EC4R 3TT

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