Asbestos compensation claims

Asbestos related diseases are the single greatest cause of work-related deaths in the UK. Asbestos was used extensively from the 1940s to the 1980s as a building material, and any building built before 2000 could potentially contain asbestos. It was widely used for its heat-resistant properties in both residential and industrial buildings, such as ships, schools, and other public buildings.

There are a number of different asbestos conditions which you can claim for:

Mesothelioma

Mesothelioma is a tumour which affects the mesothelium, most commonly in the lining of the lung, but can also affect the abdominal cavity, heart, or testes.

It is almost always caused by exposure to asbestos and has a long latency period of typically between 20 and 50 years. Mesothelioma can develop even after relatively low levels of exposure to asbestos. It can also occur following indirect exposure to asbestos, for example when washing overalls which have asbestos fibres on them, exposure within a school building that contains asbestos, or environmentally as a result of living close to an asbestos factory.

Asbestos related lung cancer

Lung cancer can be caused or contributed to by asbestos exposure. There are no clinical means of distinguishing between lung cancer caused by asbestos and lung cancer caused by smoking. People who smoke and have been exposed to asbestos are at a significantly increased risk of developing lung cancer. Those who have not smoked but who have had asbestos exposure are also at risk of developing lung cancer.

Asbestosis

Asbestosis is fibrosis of the lungs caused by breathing in asbestos fibres. It is usually individuals who have had significant exposure to asbestos over several years who go on to develop asbestosis. The effects normally appear 20 years or more after exposure. It can cause breathlessness and may become more severe over time.

Pleural thickening

Asbestos related diffuse pleural thickening is a benign thickening of the pleural membrane surrounding the lungs. It can cause breathlessness and may become more severe over time. The effects normally appear 20 years or more after exposure.

Asbestos compensation after death

If you have lost a loved one due to mesothelioma, lung cancer, asbestosis, pleural thickening or any other asbestos related disease, claiming compensation can never truly make up for that loss, but it can make life much easier for you and your family during difficult times.

Hospice claims

When we act for someone suffering with an asbestos related disease who has had some hospice care or support, we look to include the hospice’s costs, excluding any NHS-funded element, in the compensation claim. If the claim is successful, we can then reimburse the hospice their charitable outlay.

Whilst awareness of the dangers of asbestos has become apparent over the years, asbestos was not completely banned in the UK until 1999.

It is therefore possible to have been exposed to asbestos whilst working on buildings that were built or refurbished before 2000 and in many other professions, we see a large number of former laggers or plumbers, as well as other trades, who have been diagnosed with an asbestos related disease after exposure at work.

Guidance regulations were introduced in 1970 on the use of asbestos in the workplace. These days, employers must follow strict rules set out by the Health and Safety Executive. They should:

• Identify any asbestos present and what type it is.
• Carry out a risk assessment to see whether it is possible to do the work without asbestos exposure.
• Consider whether the work should be done by a contractor who holds a special licence to handle asbestos.
• Notify the relevant authority to let them know about the work that will involve asbestos.
• Provide training and protective equipment to employees.

If your employer failed to follow regulations around the use of asbestos, and you later developed an asbestos related disease, you could be entitled to compensation.

It may be that you did not come into contact with asbestos through your work. We also act for people who contracted mesothelioma through washing a loved one’s overalls, by living near to an asbestos factory or by attending a school where asbestos was disturbed.

We may also be able to bring a claim on behalf of those who believe they were exposed to asbestos whilst they were self-employed.

In order to secure a successful claim, we will need to present evidence of asbestos related disease and its impact on your health, as well as show the failure by your employer (or company/other body if you were not employed) to protect you.

Below is a list of the steps we will take in an asbestos case:

• Obtain a medical report stating that you are suffering from asbestos related disease. This report needs to be produced by a reputable respiratory disease expert who is accustomed to producing medico-legal reports for the court (not just any medical professional).
• Establish the exposure to asbestos occurred at a specific workplace or due to proximity to a particular asbestos related industry.
• Demonstrate that your employer (or other defendant) was aware of the risks and could have foreseen that there was a high probability that you could develop symptoms of asbestos related disease or other asbestos related diseases.
• Prove that the defendant failed to follow regulations around the use of asbestos, either by not informing you about the dangers or by not providing the correct training or equipment.

In a successful case, general damages are awarded for the asbestos related disease itself and the accompanying pain, suffering, and loss of amenity.

General damages

The Judicial College Guidelines provide a framework for the assessment of general damages and give the following brackets (as at 2019) for asbestos related diseases:

• Mesothelioma - £63,650 - £114,460
• Asbestos related lung cancer - £70,030 - £97,330
• Asbestos related diseases - 10% and above – £35,500 - £105,850
• Asbestos related diseases with a respiratory disability of 10% and above – £32,500 - £35,500
• Asbestos related diseases - 1-10% lung function impairment – £15,100 to £35,500 The independent medical evidence we will obtain to support your claim will assist us in valuing your claim.

Special damages

In addition to general damages, other financial losses arising as a direct result of your asbestos related condition can also be claimed in the event of a successful claim. This can include:

• Care and assistance – where you have or will have to pay for professional care, then we can include the cost of this in your claim. Furthermore, we can include an equivalent cost of care provided by family members or a hospice.
• Lost income – both past and future loss of earnings can be included in appropriate cases, for example, where you have to take time off work or retire early because of your condition.
• Services – if you now have to pay for help around the home as a result of your asbestos related condition, for example for cleaning, DIY, gardening, or window cleaning then the cost of this can be included in the claim
• Dependants – if you are claiming for the loss of a loved one following an asbestos related death there may be a claim for statutory bereavement damages, for services and/or care provided and for financial dependency.
• Out-of-pocket expenses – you can include in your claim the cost of aids and equipment reasonably required, for travel expenses incurred as a direct result of your condition, prescription charges and increased living costs.
• Medical treatment – the cost of private medical care or alternative therapies can also be included in your claim

If the independent medical evidence we obtain supports that there are future asbestos related risks, then there will be the option of looking to settle your claim on a provisional damages basis instead of on a full and final damages basis. A provisional damages settlement enables you to recover compensation for your current condition on the basis that any future risks do not materialise, but there will be a court order specifying certain terms which will enable you to re-open your case and return for further compensation, often where your asbestos related condition deteriorates or a new asbestos related condition develops. On the other hand, settlement on a full and final damages basis will give you an enhanced award of compensation, taking into account (and “buying off”) any future risks. You would be unable to return for further compensation in the future if you have settled your claim on a full and final basis, even if your asbestos related condition deteriorates or a new asbestos related condition develops.

There are time limits within which asbestos claims can be pursued. You have three years from the date it can reasonably have been expected that you 'knew or ought to have known’ that your condition may be associated with your asbestos exposure within which to issue court proceedings.

If someone affected by asbestos related disease dies within three years of this date, then the personal representative of the estate has three years from the date of death within which to issue court proceedings (provided that the deceased did not have “knowledge” for more than three years prior to the date of death). However, there are some circumstances where exceptions can be made (as the court does have a discretion to disapply the time limit), so please do contact us so that we can advise you appropriately.

Proving asbestos related disease would firstly involve some medical evidence to detail the condition. We would also need to talk to you about your asbestos exposure in detail. We will need to evidence your exposure to asbestos, usually by way of witness statements.

In order to prove asbestos related disease, you must first consult with a medical professional, so they can undertake the relevant tests. These could include imaging studies and lung tests that will diagnose and assess the extent of asbestos exposure, if any.

Alongside this, you will be required to provide detailed documentation on your work history and information on any jobs where you may have been exposed to asbestos. This could include employment records or witness evidence that will support your claim.

The duration of an asbestos claim can vary, depending on how complex the claim is, the legal processes involved, and the cooperation of the parties involved.

Generally, asbestos claims can take several months to a year or more to reach a resolution. The process typically involves gathering evidence, assessing medical reports, negotiating with relevant parties and potentially the court process if a settlement cannot be reached through negotiation.

It is possible to make an asbestos claim on behalf of a loved one who has died as a result of an asbestos related disease.

You may be entitled to claim if you were the spouse or child of someone who lost their life to an asbestos related disease, or if you were financially dependent on them. The claim is brought by the personal representative of the estate.

To make a compensation claim in these cases, you must start your claim within three years of the date of death or at the point at which a post-mortem reveals that the death was caused by asbestos exposure, if the diagnosis was not made in life.

The company where the affected person worked at the time of the asbestos exposure, or the defendant company, is liable to pay your compensation. However, due to the latency period between asbestos exposure and the onset of an asbestos related disease, a lot of companies may have ceased trading once a claim is apparent.

If your former employer has gone out of business, you could still make a claim. The company is likely to have been insured to deal with claims such as this, so it will be the insurer’s responsibility to meet the compensation claim.

Where the company has gone out of business and the insurers are untraceable, there are benefits and, in certain situations, a Government scheme set up to compensate those diagnosed with asbestos related diseases. We can advise you if this is the case.

There are various Government benefits available for those diagnosed with an asbestos related condition, including the following:

For mesothelioma:

• Industrial Injuries Disablement Benefit
• Pneumoconiosis etc (Workers’ Compensation) Act 1979
• Diffuse Mesothelioma Scheme 2008

For asbestos related lung cancer:

• Industrial Injuries Disablement Benefit
• Pneumoconiosis etc (Workers’ Compensation) Act 1979

For benign asbestos related diseases (asbestosis and asbestos related diffuse pleural thickening):

• Industrial Injuries Disablement Benefit
• Pneumoconiosis etc (Workers’ Compensation) Act 1979

We are happy to put you in touch with a charity who can assist you in making any appropriate applications.

Whilst we cannot guarantee that any particular claim will settle out of court, we take great care in investigating and preparing each claim that we take on. Our clients’ claims usually settle successfully without the need for a court hearing.

Even in non-contested cases, there will be occasions when the case is brought for shorter hearings before the court. You can be reassured that our expert solicitors will support you and guide you through every step of the claim.