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Mesothelioma Update

Mesothelioma Bill

The Mesothelioma Bill continues its progress through Parliament. It completed a third reading in the Lords in July before the summer break and was presented in the commons at the end of August. It is waiting a date for a second reading before going to committee stage. The Bill aims to set up a compensation scheme for mesothelioma sufferers and their dependents who have been unable to obtain damages through the courts because the culpable employer is insolvent and its insurer is untraced. It will apply to those cases where diagnosis of the condition was on or after 25 July 2012. The payment scheme will be administered by the DWP although the intention is that they will contract out the work to a service provider familiar with the relevant issues. Claimants under the scheme will need to show evidence of culpable exposure and damages will be calculated on an age based scale. The scheme will be funded by an annual levy on the ongoing EL insurance market at an estimated yearly cost of £340m. It is hoped that the scheme will be up and running by July 2014.

Whilst the scheme has been largely welcomed by all sides, the view from claimant groups is that it does not go far enough. They argue that it should not exclude historic victims and that compensation should be paid on an individual calculation basis rather than on a set scale. That would of course work against the intention that the scheme should be cost efficient which ensures more of its funds go to the claimants rather than their representatives.

MOJ Consultation

The MoJ has also now published its consultation document on reforming the handling of mesothelioma claims. The document invited feedback by 2 October 2013 on a number of issues relating to proposed changes to the way mesothelioma claims are processed and litigated and DWF responded. The three main areas of discussion were:-

  1. Introduction of a dedicated Pre-action Protocol for Mesothelioma Claims. 
  2. A claims portal or electronic information gateway for mesothelioma claims. 
  3. Introduction of fixed recoverable costs

A draft Pre-action Protocol from the ABI was included with the consultation papers. It envisages earlier notification of claims, better exchange of information before proceedings and a reduced investigation period for defendants/insurers down from 3 months to 2 months.

The mesothelioma claims gateway is intended as a common claims pathway for both standard EL claims and for claims that fall to the anticipated untraced compensation scheme. It is not intended that the gateway will be a compulsory system but it is hoped that there will be a widespread adoption of it. It aims to be a quicker and more efficient system of claims notification and handling.

On the issue of fixed recoverable costs (FRCs), the Government’s stated view in the consultation document is that it would be reasonable and proportion to introduce a structure of FRCs. It invites views on whether FRCs should be introduced and what form they should take.

The final aspect of the consultation paper is the promised review on whether LASPO cost/funding changes should be introduced to mesothelioma claims. The removal of recoverable success fees and ATE premiums did not apply to mesothelioma claims pending further review even though mesothelioma claimants are entitled to the 10% uplift on PSLA . That review is now to take place and views are invited by the consultation paper. The paper envisages that application of these funding reforms should also apply to mesothelioma claims once the whole package of changes has been introduced.

Responses which have emerged to date have largely been on expected partisan lines.

The claimant lobby has cast doubt on the true intention of the reform proposals, APIL for example raising the issue that the Government is in fact a defendant stakeholder. The usual emotive themes have emerged regarding access to justice for the terminally ill. The overall view seems to be that more needs to be done to tackle delay by insurers, to increase compensation levels and to go as far as imposing strict liability for asbestos exposure. The reforms are attacked as being likely to slow down claim processing, to increase costs and to reduce likely compensation to claimants and their families. There is an unwillingness to accept that LASPO should apply to mesothelioma claims, with APIL suggesting that further separate consultation is required on that issue.

Defence bodies and representatives have welcomed the proposed changes. They see the primary cause for delay as being an unwillingness by Claimant solicitors to disclose information and evidence at an early stage. The proposed Mesothelioma Pre Action Protocol seems to be viewed favourably as a method of improving that flow of information and therefore encouraging earlier settlements and reducing costs. Introduction of a fixed costs scheme seems to be supported, as is the implementation of LASPO in mesothelioma claims.

It is clear that there is still a degree of uncertainty as to the form and shape of mesothelioma claim reform. Nevertheless, it is clear that the Government has the intention that the system in its current form will not remain. All parties are now looking forward to the MoJ response. It is clear that there is still some way to go before we know precisely how mesothelioma claims will be dealt with in the future.

Recent case law

There have been a couple of cases recently which are worthy of brief note:-

In Garner v Salford City Council (2013) a lady diagnosed with mesothelioma sought to establish liability against a local authority and a demolition contractor in respect of the demolition of a local swimming baths. She had attended school next door to the swimming baths during its demolition and claimed that the demolition had caused asbestos exposure, thus materially increasing the risk of mesothelioma.

After a careful review of the facts, the Judge found for the Defendant. Although he accepted it likely that dust had escaped from the demolition process into the playground area, he felt that the chances of that dust containing asbestos fibres were minimal. The fact that there was no other obvious source of exposure should not be allowed to undermine the fact that the evidence did not point to material exposure from the alleged source. It was not for the Defendant to show where the exposure had occurred if not from their activities.

In Billingham v John Barnsley & Sons Ltd (2013) the court was asked to consider liability in a low level exposure case. The late Mr Billingham died from mesothelioma. He had been exposed to asbestos fibres in 1968/69. The fibres had fallen down from the top of a beam he had attached chains to for stress testing. Expert evidence established that his overall fibre dose was below the guidance given by HM Factory Inspectorate in TDN13 when it was published in 1970.

The Defendants sought to rely upon TDN13 as the recognised standard of the day and argued that risk of injury was not foreseeable following the authority of Williams v Birmingham University.

The trial judge expressed the view that Williams was correctly decided on its facts but felt able to distinguish it from the case before him. Although Mr Billingham's overall dose was below the levels of TDN13 he was nevertheless exposed to very high fibre levels for short bursts of time. Those short lived bursts possibly involved exposure at levels of 100 f/ml. On that basis it should have been apparent to the employer that there was a foreseeable risk. It was an easy task to have prevented or significantly reduced the exposure and the Defendant was held in breach of duty.

This decision gives us an indication of how trial judges might approach the Williams authority. TDN13 is to be viewed as relevant guidance but if the facts of a particular exposure show very high short term exposure then risk of injury can still be foreseeable even if the overall dose is within TDN13 when averaged over the employment period. The guidance within TDN13 is not set in stone.

For further information contact Daren Charlton, Partner, on 0161 603 5148

By Daren Charlton

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.