Posted by Helen Childs, Partner
Court decision could open doors to compensation for mesothelioma and lung cancer sufferers
A court ruling published in August 2014 could mean that hundreds of people will receive substantial compensation for asbestos-related illnesses.
Photo credit: Col Ford and Natasha de Vere https://www.flickr.com/photos/col_and_tasha/
Millions of tonnes of asbestos were imported into the UK from the 1930s to the 1970s. It was very widely used in construction, industry and domestically. However, asbestos dust can affect our health, causing diseases like pleural plaques, pleural thickening, asbestosis, lung cancer and mesothelioma. Thousands die from asbestos-related illnesses every year.
The court case concerns a 79 year old man called Mr Dowdell who was diagnosed with mesothelioma (an aggressive asbestos-related cancer) many decades after working with asbestos for numerous companies in oil refineries and heavy engineering in the 1960s and 1970s.
He had first developed asbestos-related changes in his lungs in 1998. He instructed solicitors and received compensation for asbestos-related scarring and asbestosis. They were able to trace seven of his employers, but were unable to trace three others, who were responsible for 25% of his exposure to asbestos.
When someone is diagnosed with asbestosis, pleural thickening or pleural plaques those illnesses indicate that person is at an increased risk of developing more serious illnesses like lung cancer or asbestosis. In Mr Dowdell’s case his risk of developing lung cancer was 5% – and 10% for mesothelioma.
There were two ways of settling a claim for asbestosis and pleural thickening/plaques. Either a “provisional damages” award – where the individual received less could seek further compensation if they went on to develop a more serious asbestos-related condition (typically lung cancer or mesothelioma). However, Mr Dowdell had opted for a “full and final settlement” where his compensation was enhanced but if more significant conditions did develop he could not seek any more damages.
Claimants should always be wary of accepting full and final settlements, because the extra compensation they receive rarely reflects the risks. When he settled his case Mr Dowdell was only 68 and had a 15% chance of developing an asbestos-related cancer.
When he was diagnosed with mesothelioma 10 years later, he claimed damages against the three defendants who had not been pursued in the original action. It was now possible to identify the correct companies and their insurers.
The defendants refused to pay the claim, saying that Mr Dowdell couldn’t pursue further compensation because he had already settled his claim in full in the earlier action, so it was an abuse to allow him to proceed now – and in any event his claim was out of time and should not be allowed to proceed.
The judge disagreed, as the earlier action was against different defendants and was settled for a discounted sum. Although the claim was being pursued 12 years beyond the time limit, the Judge decided the defendants were not prejudiced by the delay – because they would have stood very little chance of defending the claim in any event.
Mr Dowdell should now receive a six figure award.
What this means for asbestos-related illness suffers
This is very good news for hundreds of families. One of my clients – the widow of a welder who worked in Port Talbot – is in a very similar situation. Her late husband’s claim was handled by a previous firm of solicitors who settled for full and final damages against three employers just months before he developed mesothelioma. The insurers for another employer had refused to deal with the claim because they were in the middle of a court battle about which insurers were liable for asbestos-related claims.
Anyone who develops mesothelioma or lung cancer should seek specialist legal advice. Obviously money will be the last thing on your mind at such a difficult time, but compensation claims will be fast tracked, and will allow you to know that your family will be provided for. Even if you have previously settled a claim in full there may still be the possibility of a further award. You may be able to claim from employers who were not pursued in the original action. Alternatively, your solicitors may not have advised you properly before you decided to accept a full and final settlement.
Royds Withy King have a dedicated specialist team of lawyers who are committed to recovering maximum compensation for industrial disease claims. If you or a family member has an asbestos-related illness, or have been diagnosed with an industrial disease as a result of work, you may be able to bring a claim. Contact Helen Childs by calling her on 01865 268359 or emailing firstname.lastname@example.org.