The Mesothelioma Bill: Does it go far enough?
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Our industrial claims specialists in our Personal Injury team, comment on the Mesothelioma Bill which has recently had its third reading in the House of Lords.
What is mesothelioma?
Mesothelioma is a rare cancer of the lungs caused, it is thought, exclusively from exposure to asbestos. It begins in the mesothelium which is the membrane that lines and protects the lungs, the heart and the abdominal cavity.
There are three main types of mesothelioma:
- Pleural mesothelioma begins in the pleura (the lining of the lungs). This is the most common type of mesothelioma.
- Peritoneal mesothelioma begins in the peritoneum (the lining of the abdominal cavity).
- Pericardial mesothelioma begins in the pericardium (the lining of the heart).
Why was action for compensation for mesothelioma sufferers needed?
Asbestos diseases have a latency period before developing which, in some cases, can be up to 50 years. Most exposure took place in the 1950s, 60s and 70s so the peak in individuals being diagnosed is still to come.
It is estimated by the Health and Safety Executive that 2,300 UK residents pass away each year at present from this disease. Individuals who have been diagnosed can bring a claim against previous employers who exposed them if negligent exposure can be established. Claims include an award for the diagnosis itself which can range from between £50,000 to £90,000 in addition to financial compensation for other losses such as their earnings and pension to ensure that their loved ones have future financial security. These claims and diagnosis of mesothelioma are sadly not limited to the workers themselves but can extend to their families and children who were exposed to particles on work clothes and go on to develop the disease in time.
The sad fact that often seen is that due to the length of time between exposure and diagnosis the company against whom the claim would be brought is no longer trading. Although this is not a problem in itself as any claim then would be against the insurer sometimes this too cannot be traced. When this happens the individual is left with no hope of compensation from an employer who negligently exposed them to asbestos.
The bill was therefore introduced to remedy this lacuna and to compensate individuals that would have been other wise left without any avenue of redress and remedy the historic failure of insurance companies to maintain records of employer's liability insurance.
The Mesothelioma Bill
The bill had its third reading on the 22 July in the House of Lords and is about to progress to the House of Commons although no date has been given for this yet.
It aims to provide payments to sufferers who cannot trace their insurer but can prove negligent exposure. The intention of the bill is good and should be welcomed but does it go far enough to ensure that individuals suffering from mesothelioma are properly compensated in the following ways:
- It is predicted that the average payment will be reduced by 25% / 30% of that that would be received as a result of a civil claim
- It will only apply to mesothelioma sufferers who are diagnosed after the 25 July 2012
- It applies only to those individuals suffering from meosthelioma and not other asbestos related diseases such as lung cancer or pleural thickening
- Payments under the Scheme will be based on the age of the person suffering from mesothelioma. This is at odds with the basis for calculation of an award in a civil claim which is more complex and takes a variety of factors into account not just the individuals age
- Dependants under the scheme if more than two will be compensated on the basis of an amount for a single eligible dependant divided by the number of dependants in the claim. This is at odds with the way in which dependency claims are calculated in a civil claim and may potentially result in lower levels of compensation
- Credit will still need to be given by any Claimant for the amount that they have received from the Department of Work and Pensions under the Pneumoconiosis Etc. (Workers' Compensation) Act 1979 and any other benefits.
An Early Day Motion was published at the beginning of June setting out the critiques of the proposals, specifically in relation to the cut off date. It stated that the scheme was "Unacceptable, untenable , unjustifiable and arbitrary as only half of victims would be able to get compensation through it. " This was considered at the report stage in early July.
Unfortunately the cut off date was not changed and currently remains a fixed proposal. The bill will now progress through the House of Commons and it will be interesting to see what, if any, further amendments are made before its enactment.
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