The importance of provisional or full and final settlements in asbestos disease cases

Boyes Turner’s expert mesothelioma and asbestos claims solicitors have recently concluded two asbestosis claims, one against Kodak and another against Mars.

The claim against Kodak was settled on a full and final basis and the claim against Mars was settled on a provisional basis. Here, we look at the differences between these two different types of settlement and what claimants need to consider when deciding which type of settlement to opt for.

Provisional Settlements

A provisional settlement means that the claimant receives some compensation when their claim settles, but leaves open the option for them to re-open their claim at a later date if their condition significantly deteriorates or if they are subsequently diagnosed with another asbestos related disease.

This is a very important consideration in an asbestos disease case, given the chronic nature of asbestos related conditions and the potential for further problems to develop further down the line. An example would be a claimant who has a benign asbestos related condition such as pleural thickening or asbestosis, but is at risk of later developing a malignant condition such as mesothelioma or lung cancer.

Asbestos related diseases have a long latency period of typically between 20 and 50 years, meaning that when somebody has exposure to asbestos dust, it can then take quite some time before they are diagnosed with an asbestos related disease. The wide range in the amount of time it can take also means that it is quite common to be diagnosed with a benign asbestos related disease and then, some years later, to be diagnosed with a malignant asbestos related disease. 

Boyes Turner recently dealt with a case where this exact situation occurred. Our client had already received compensation for a benign asbestos condition several years previously, but was subsequently diagnosed with mesothelioma. Because he had elected to settle his claim on a provisional damages basis, we were able to re-open his case and claim further compensation for him. Had he settled on a full and final basis, this would not have been possible.

When settling on a provisional basis, it is necessary to agree ‘return conditions’ which specify the situations where the claimant can re-open their case and claim further compensation. It is therefore very important to ensure that these are carefully drafted in order to ensure that all eventualities are catered for. If they do not cover all of the potential future risks of deterioration and further asbestos-related diseases, the defendant may be able to avoid paying further compensation at a later date.

Full and final settlements

A full and final settlement, as the name suggests, means that the claimant cannot re-open their claim at a later date. Once it has been settled, there is no entitlement to any further compensation further down the line.

This means that, if a claimant is diagnosed with a benign asbestos related disease such as asbestosis or pleural thickening and settles their claim on a full and final basis, they are unable to re-open their claim if their condition worsens or if they are later diagnosed with mesothelioma or lung cancer.

In light of this, it would seem fair to ask why anyone with a benign asbestos related disease would ever choose to settle their claim on a full and final basis. The incentive to do so is that the claimant will receive a greater amount of compensation when they settle on a full and final basis than if they settled on a provisional basis. This is because the defendants pay more in order to ‘buy off’ the risk of any further claim being made at a later date. The greater the risk of a deterioration in the claimant’s condition or of developing a more serious asbestos related disease, the more compensation the claimant will receive if they settle on a full and final basis.

When considering whether to opt for a provisional or a full and final settlement, the claimant will need to weigh up a range of factors. If they are relatively young and the risk of developing a more serious asbestos related disease is particularly high, they may decide that it is best to settle on a provisional basis. On the other hand, if a claimant has a limited life expectancy due to factors unrelated to their exposure to asbestos, they may decide to settle on a full and final basis and maximise their compensation while they can. Boyes Turner’s expert mesothelioma and asbestos claims solicitors are able to give you the advice you need to help make the decision that is right for you.

For more information about how the mesothelioma and asbestos disease claims team can help you or your loved ones after diagnosis with an asbestos related disease, please contact the team by email on idclaims@boyesturner.com.