It was rather exciting to attend the all-party Parliamentary group on occupational safety and health, the Asbestos Sub-Committee on Wednesday 12 December 2018 in Room 11 in the House of Commons, just a few doors down from room 14 where Mrs May’s political fate hung in the balance. The atmosphere was buzzing, but the Asbestos Sub-Committee were focussed upon their important Agenda regarding asbestos issues.
Asbestos Victims Charter for Justice
The Asbestos Victims Support Groups for UK updated us on the new draft Asbestos Victims Charter for Justice. It is a shocking statistic that in the UK this year more people will die of mesothelioma than will be killed on the roads. Every year the number of people affected by asbestos diseases continues to rise. The aim of the Charter is to set out a number of reforms that help achieve the aim of justice to asbestos disease sufferers and their families.
The Forum remind us that the UK has the highest mesothelioma incidents in the world. The main changes to the Charter since four years ago relate to fair compensation.
We certainly support a new military veteran’s charter; especially that bereaved spouses can make an application for a lump sum, in the same way as under the Diffuse Mesothelioma Scheme and that lifetime payments ought to be increased to reflect the average civil claims pay-outs (which are increasing in themselves).
Fair compensation was a common theme throughout the meeting. It was of some concern that posthumous awards made under the Pneumoconiosis etc (Worker’s Compensation) Act 1979 and the 2008 Diffuse Mesothelioma Scheme are not made at the same rate as in life payments. It was said that this mostly put women at a disadvantage as it is usually women (although not always) who are making claims following the death of a husband due to mesothelioma. The Scheme is a tariff and based on age. For example, someone suffering with mesothelioma that makes the application during life who is aged 75 (under the 1979 Act) will receive £14,995 whereas if the same application is made following their death under the 2008 scheme), the spouse will only receive £7,763.
Whilst the Diffuse Mesothelioma Payment Scheme 2014 appears to be working well, there are still some real deficiencies with the system. One such problem is that whilst payments are now said to be 100% of the original award in all cases, tariff payments should still be increased in line with CPI each year at the same time as social security benefits. The Sub-Committee heard that there should be a review of the Scheme every two years, using the most recent annual figures available to ensure tariff payments accurately reflect average civil compensation awards.
The point was made that the average that was previously applied in civil cases is no longer up to date. Mesothelioma awards in civil claims are often typically higher in recent months to allow for the costs of private treatment (not always available on the NHS) such as immunotherapy. The tariff for the Diffused Mesothelioma Payment Scheme should therefore increase accordingly.
What about other asbestos related diseases?
The Sub-Committee didn’t just focus on instances of mesothelioma. It was recognised that there is also a need for a scheme, similar to the Diffuse Mesothelioma Payment Scheme, but for other asbestos related diseases such as asbestosis, lung cancer and diffuse pleural thickening. The only recourse for patients suffering with these diseases, where there is no applicable employers’ liability insurers, is via the Pneumoconiosis Workers Compensation Act Scheme (where the amount are substantially lower than under the 2014 scheme) and if they contracted the disease through means other than employment, there is no recourse.
There is also a difference with the way in which claims for mesothelioma and those for other asbestos related diseases such as lung cancer can be funded. Mesothelioma claimants have always been able to recover their success fee and after the event insurance premiums from the losing defendants in successful cases. This was the case previously for other asbestos related disease claimants, but since April 2013, claimants are no longer able to do this. If a claim is successful, then a lung cancer claimant for example may have to have their success fee and insurance premium deducted from their compensation. There was a call therefore to bring about equality in terms of asbestos related diseases and justice for all people suffering from asbestos disease and to return to the previous position of recovering success fees and insurance premiums from defendants.
Report on the Forum’s case against Cape
Action had been taken to stop Cape destroying vital evidence from previous cases and that all disclosure of these documents was in the public interest. The High Court ruled in favour of the Forum against Cape, but Cape appealed and the case was heard again at the Court of Appeal over the summer. The Master allowed disclosure of a number of documents but provided that if there were further documents needed, the claimants would have to come back to Court to obtain permission for those further documents. There is now an appeal to the Supreme Court which is going to be heard on 18-19 February 2019.
Asbestos in schools
Always an emotive topic, we were pleased to hear that there has been some progress regarding asbestos in schools. The Department of Education is seeking assurances that asbestos in schools is being identified and managed appropriately. There is a newly appointed Chief Inspector responsible for education at the Health & Safety Executive who has instigated the undertaking of proactive inspections in 50 schools across England, Wales and Scotland. We were told that the chosen schools will not get more than a week’s notice of the inspection and the process is not intended to be a paper exercise with inspectors tasked with spending a whole day looking at the relevant building. There is still, of course, a long way to go, but we see this as a really positive development.
For more information about any of the above applications and wards please contact our mesothelioma and asbestos claims at email@example.com