JUSTICE FOR MESOTHELIOMA VICTIMS

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1 JUSTICE FOR MESOTHELIOMA VICTIMS Fact, fiction and ideas for change A briefing from The Association of Personal Injury Lawyers (APIL) November 2013

2 The Association of Personal Injury Lawyers (APIL) is a not-for-profit membership organisation, established more than 20 years ago to fight for the rights of people injured needlessly, through no fault of their own. APIL has around 4,300 members, who are mostly solicitors, with some barristers, academics and students. Many of the association s members specialise in workplace injuries, disease, and asbestos-related disease, and APIL has campaigned for many years for justice for people suffering from the terminal cancer mesothelioma, caused by exposure to asbestos at work. For further information please contact: Lorraine Gwinnutt Head of Communications APIL Telephone Sam Ellis Parliamentary Officer APIL Telephone

3 The Department for Work and Pensions is steering the Mesothelioma Bill through Parliament. The Bill is designed to help people who currently receive no compensation for this terrible terminal disease because they cannot trace the insurers of the employers who exposed them to asbestos. The Ministry of Justice is engaging in a separate consultation exercise to examine the civil process for those people who can trace the insurers of former employers and are therefore usually able to claim compensation. We hope this consultation will result in the prompt payment of full and fair compensation for people who are dying just because they turned up for work, often many decades ago. We expect that an efficient system, which puts the needs of dying people first, will also mean lower legal costs. But if we are to embark on this process, and if the outcome is to be successful, we must first be clear about what is wrong with the current system and how best it might be changed. This means addressing some common myths about mesothelioma claims. 03

4 This is far from the truth. In the majority of cases, the victim was exposed to asbestos decades before becoming ill and that exposure may have happened at several places of work, and at different times. It is difficult for anyone to recollect the exact details of periods of employment from years ago. It is considerably harder for an elderly, terminally ill and distressed person to recollect such details clearly. Over time, the insurance records needed to claim compensation successfully have often been lost or destroyed and work records may have become difficult to trace. All this adds considerably to the claimant s burden of having to prove his case. And in mesothelioma cases, where victims usually only have months left to live once diagnosed, time is always of the essence. Mesothelioma is almost always associated with exposure to asbestos in the workplace, and the dangers of exposing workers to asbestos have been known for decades. It would be entirely fair, therefore, if the burden of proof on claimants could be restricted to them having to show that a particular employer exposed him to asbestos, therefore causing the illness, without having to go through the often tortuous and antagonistic process of proving the employer was negligent: effectively taking the negligence as a given. Such strict liability would speed up the process, thereby reducing an intolerable stress on the victim, and cutting the legal costs of both parties. 04

5 Unfortunately, going to court is often the only way mesothelioma victims can obtain the compensation they need to offer them some kind of comfort in the last weeks and months of their lives. One of the most difficult things to prove is that an employer has caused an injury or disease through negligence (known as liability ). In mesothelioma cases it is common for those acting on behalf of employers to deny liability. They know time is short, that claimants are vulnerable and that the longer a claim can be delayed the more likely it will be that the victim will die or give up the fight before a compensation payment can be made. This is particularly true where there is no one to bring claims for dependency payments after the victim has died. This is supported by APIL research which found that almost half the lawyers who responded to a survey said defendants admit liability in fewer than ten per cent of cases during the time limit set down in a legal protocol which applies to these cases. Almost a quarter said defendants don t admit liability at all within the protocol period. With the life-clock ticking, the victim is left with little choice but to take his case straight to the courts. This problem is no secret. Around ten years ago Senior Master Whitaker set up special court procedures to try to speed up mesothelioma claims, as precious time was being wasted on cases which would eventually settle. Many victims were dying before their claims were completed. In April this year, Senior Master Whitaker noted: The primary purpose of the mesothelioma list is to enable the issue of liability to be determined as early as possible on a summary basis, something that is possible in 97-98% of cases. 1 Until defendants become more willing to admit liability where liability exists, the legal system must preserve the victim s right to take his case to court. This is indispensable for claimants who have so little time to complete their claims. Proposals currently being consulted on would not achieve this in a timely manner

6 Not in many cases. The problem here relates mainly to people who have dependents and the very real worries of many mesothelioma victims that those dependents will find themselves struggling to make ends meet when they die. According to the law at the moment, once a mesothelioma victim s claim is settled, there is no further recourse to the law for his family and dependents once he has died. If, on the other hand, the case does not conclude before he dies, his family and dependents can not only continue the claim for damages for his pain and suffering, but they can also claim statutory bereavement damages and any other costs connected with their dependency on the deceased. This situation can leave the mesothelioma victim having to make a terrible decision: under the current law, he can claim an early part-payment ( interim ) payment for himself to bring some comfort and security into the last months of his life, and then delay completing the claim so the family can continue it after he has died. Or, he could try to complete the claim on his own behalf in life, leaving the family with no chance of claiming bereavement or dependency damages after death. If he chooses the latter, what is left of the compensation received will, of course, be passed on to the estate, but it will only represent part of the sum to which the bereaved dependents are entitled. Unfortunately, the law as it stands does not allow the courts to award bereavement and dependency damages while the victim is still alive, even though death is certain and imminent. This causes incredible stress and uncertainty for the victim and his family. The law which prevents dependency claims from being calculated and bereavement damages allocated until death has occurred is anomalous and should be changed. Finalising these calculations while the victim is still alive would be much fairer on all concerned, allowing the victim to set his affairs in order properly. It is also much more efficient, saving time in the long run and, therefore, also saving legal costs. 06

7 Average legal costs for a claimant in a mesothelioma claim are between 15 and 20 per cent of the value of the claim which can hardly be described as disproportionate. It should also be noted that costs are subject to approval by the courts. The Ministry of Justice has already introduced a new system for dealing with workplace claims which includes fixed costs for claimants with claims up to the value of 25,000. When this system was introduced, it was decided that fixed costs would not be appropriate for workplace disease claims because of their complexity. To introduce fixed costs for mesothelioma claims now would be completely illogical. There are ways of cutting the costs associated with mesothelioma claims without restricting the victim s access to justice. Some of these have been covered above, but there are others: some insurers are happy to accept a medical certificate from a specialist lung cancer nurse or a pathology report as proof of diagnosis of mesothelioma and that the disease has been caused by exposure to asbestos. This is quicker and cheaper than obtaining a detailed report by a consultant and should be adopted more widely. NHS medical records should be available more quickly most requests take double the government-recommended time to be delivered. 07

8 The two aspects of making a mesothelioma claim which take the most time are trying to trace the historical insurers of former employers, and the unwillingness of most defendants to admit liability where liability exists. Neither of these issues are tackled under the terms of the proposed protocol. In addition, there are no sanctions for defendants who do not adhere to the strict timescales of the protocol while, at the same time, the flexibility for a claimant to go to court to mitigate against an insurer s delaying tactics has been removed. The benefits of this protocol are clearly loaded in favour of the defendant and yet the Government has said our priority is to ensure that mesothelioma claims are settled quickly and fairly so that early payment of compensation is made to ease the suffering of the victims and to give some assurance that their dependents will be financially secure after their death. 2 There are three other ways of cutting costs and delay, in addition to the ideas outlined above: In its annual report for 2012, the Employers Liability Tracing Office (ELTO) reported a success rate in tracing insurers in mesothelioma cases of 65.9 per cent. 3 So, while the ELTO may be a step in the right direction, there is certainly no room for complacency. Every insurance policy which can be traced means the claimant can claim full and proper compensation without having to call upon the resources of the new Mesothelioma Scheme to be introduced next year. The law as it stands dictates that the claimant must sue his employer, even though it is usually the employer s insurer which pays the compensation. In many mesothelioma claims, however, the culpable employer has gone out of business over the passage of time. This means that the employer has to be resurrected and restored to the register of companies, which costs time and money. The Third Parties (Rights Against Insurers) Act 2010 would make this costly and time-consuming procedure unnecessary as, where the employer is defunct, a claim could be brought directly against the employer s insurer, provided that insurer could be traced. The Act has yet to be brought into force and this should be expedited by the Government. Senior Master Whitaker s special court procedures for mesothelioma claims have been a huge success in encouraging defendants who find themselves in the court process to admit liability, or to show there is a valid defence. If greater resourcing were to be made available, more cases could have access to these procedures Ministry of Justice consultation: Reforming Mesothelioma Claims, ministerial foreword, page 8 3. ELTO Annual Report and Accounts 2012

9 This is both inaccurate and completely inappropriate. A signed witness statement is legally binding on the claimant. To provide one at the beginning of the case, before all the necessary evidence has been gathered to prove the claim is valid means relying on the memory of the victim which, for reasons discussed in myth 1, can be extremely unreliable. Insisting on an early signed witness statement will also have the direct consequence of delaying the claim because lawyers will not ask their clients to make a binding commitment until the information in the statement has been verified with organisations such as Her Majesty s Revenue and Customs (HMRC) and by the examination of medical records. Under the current protocol, details are already given to the defendant at an early stage of the case and this procedure should be retained. Although information will not necessarily have been verified at this stage, it is almost always enough to allow investigations to begin. FLYING in the face of THE court? There is another reason why defendants have campaigned for several years for signed witness statements at the outset which has nothing to do with beginning investigations and everything to do with defendants costs. Over the course of his employment, the victim may have been exposed to asbestos negligently by several different employers. In a test case in 2002, however, the House of Lords held in Fairchild 4 that a mesothelioma claimant should be compensated in full by any one employer found to be liable. It then became the task of all liable defendants to work out how to share the costs between them, once the claimant had received his compensation. The mechanism for doing this was set out in an Association of British Insurers document Guidelines for Apportioning and Handling Employers Liability Mesothelioma Claims, published in The guidelines make it quite clear that the lead insurer is to pay the claimant s damages and the claimant s costs in full as soon as possible and without first being put in funds by other participants. But by 2010, defendants appeared ready to abandon this guidance and ignore the House of Lords ruling. In an article in Post Magazine in December of that year, Michelle Penn, of the Forum of Insurance Lawyers, was quoted as saying..we need a signed witness statement because, to get a contribution from another 4. Fairchild v Glenhaven Funderal Services Ltd and others [2002] UKHL 22 09

10 party, you need to prove that element of exposure elsewhere... This is one of the key reasons why there are delays in securing compensation for mesothelioma sufferers. We need to get the contribution sorted out before we pay. (Emphasis added.) To delay mesothelioma cases cases in which the time factor is arguably more important than any other kind of case to allow defendants time to sort out who pays what, flies in the face of both a key House of Lords decision and ABI guidelines, and is clearly fundamentally unacceptable. Introduce strict liability so that a claimant would only have to prove an employer exposed him to asbestos, thereby causing mesothelioma. Preserve the claimant s right to take his case to court if the defendant refuses to admit liability within the specified time limit. Change the law so dependency claims and bereavement damages can be paid before death, in mesothelioma claims. Accept a medical certificate from a specialist lung cancer nurse (or pathology report) as proof of diagnosis. Increase efficiency in providing NHS medical records. Bring the Third Parties (Rights Against Insurers) Act 2010 into force. Continue to improve the ELTO service and provide greater resources to improve the system for tracing the insurers of liable employers. Provide greater resources to allow more cases to be brought through the special procedure in the Royal Courts of Justice. 10

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