Detective work required
Considerable detective work may be required to track down who that original employer’s insurers may have been at the time of the exposure, check employment records with HMRC and confirm work practices of many decades ago. In these cases, such information is frequently unavailable and as the courts are willing to accept witness statements from colleagues who worked alongside the claimant as compelling evidence. A great deal of work may also be required to identify and locate these people too. The best witness statement and recollection of events will of course come from the sufferer themselves but, sadly, in many mesothelioma cases, that’s not possible since they may have died from the incurable cancer by the time legal action is considered.
Complex nature of these claims demands experienced legal experts
It is vitally important to work quickly and with a specialist solicitor experienced in mesothelioma claims – these are not cases that non-specialist firms or lawyers can competently handle. There is a real concern though that access to justice for mesothelioma victims may be restricted by the introduction of fixed costs, a move which is likely to persuade many law firms that they cannot undertake these time and labour intensive cases economically.
At Shoosmiths, however, our specialist team are committed to continuing to help mesothelioma victims get all the help and support they need. We offer a free initial consultation (at home or in hospital if necessary) to discuss the merits of your claim and how best to fund it. If we believe you have a good case and could make a successful claim, we’ll fight your corner on a no-win-no-fee basis (sometimes called a conditional fee agreement).
You’ll receive 100% of any compensation award
If your mesothelioma claim is successful, you’ll receive 100% of the compensation awarded. This is because mesothelioma cases are exempt from the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. Pursuing such a claim once you have a confirmed diagnosis of mesothelioma is worth the effort. Under the ‘Mesothelioma Practice Direction (PDD3)’ Defendants have to ‘show cause’ at the hearing, showing why judgment should not be entered in favour of the mesothelioma claimant at that time.
This essentially reverses the burden of proof in mesothelioma claims and places the onus on defendants to present compelling evidence to support a denial of liability in a claimant’s case for compensation.
Acting quickly is essential
Speed is essential in mesothelioma claims, for the obvious reason that a claimant’s lifespan is severely limited. In some cases the claim may finally settle only after the person has died. As a general rule you usually have to start a claim within three years of when you knew you were suffering from an illness caused by asbestos exposure. This is usually taken to mean the date of diagnosis( or technically the first ‘date of knowledge’) and does not mean three years from the time of the original asbestos exposure, which could have been several decades ago.
There is a specialist Mesothelioma Fast Track court procedure to benefit sufferers and ensure where possible they have the benefit of any compensation in their lifetime. Once a claim has begun, the court asks why judgement should not be given on the case. If there is no credible defence, judgement will be given and a mesothelioma sufferer will usually be awarded £50,000 as an immediate interim payment which can at least help make them more comfortable.
The process involved in making a claim
Your solicitors will initially seek witness statements (if not from the claimant, then from work colleagues) and will access your medical records. They will arrange for an experienced specialist medical consultant to confirm the diagnosis of mesothelioma and may gather similar evidence from engineers and care experts. Your solicitor will also apply to HMRC for your work history. From the witness statements and work history, the solicitor will make efforts to trace the relevant employers and/or insurance companies.
If a company or insurer cannot be found
If all the research draws a blank and a company or insurer cannot be found despite your solicitor’s best efforts, all is not lost. A government fund called the Diffuse Mesothelioma Payment Scheme provides financial support for sufferers and dependants because it has been impossible to trace a previous employer or insurance company. Under this scheme you can apply to receive 100% of the average compensation award for civil claims made.
This fund only helps those people diagnosed with mesothelioma after 25 July 2012, but even in these circumstances, you will still need the services of an expert mesothelioma solicitor since it is not enough for a claimant to simply state that they have mesothelioma. You have to show that, legally, you would have had a good case if the negligent employer or their insurer could have been traced.
Settlement, timescales and awards
To encourage a quicker conclusion to the legal process, your solicitor will look to settle the claim out of court where possible. A settlement can occur at any stage of the process from first contact with former employers or insurance companies. Most mesothelioma cases are settled well before going to trial. Every case is different and decided on its own facts, which makes it difficult to say how long the legal process will take.
Most solicitors will aim to settle a claim without going to court within four to six months for people living with mesothelioma but it can take longer, for example, if the case requires the solicitor to trace witnesses or the insurance company of an employer no longer trading or the case has other complications.
Equally, no two cases are the same when it comes to assessing the amount of compensation finally awarded (net of any interim payments). The judge will take into account such considerations as age, pain and suffering, loss of amenity, loss of earnings, medical expenses, care costs, services that might be needed around the home, and the financial dependency of spouses. An average award is around £145,000 but mesothelioma awards can be significantly higher (or lower) in some cases.
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024