Category: Law News

ASD Welcome News of Payment Increase for Mesothelioma Scheme

By Ralph Clark, Specialist Industrial Disease Solicitor at ASD

People suffering from mesothelioma received some good news last week when Work and Pensions Minister Lord Freud announced that payments made under the Diffuse Mesothelioma Payment Scheme are to be increased. Under the amended Diffuse Mesothelioma Payment Scheme, victims’ compensation will rise from 80% to 100% of average civil claims. This equates to an increase in payments of up to £54,000 per person.

In a written ministerial statement published on Tuesday 10th February, Lord Freud said that payments would be increased to 100% of average civil claims, from the current 80%. The increased compensation, however, will only be available to applicants diagnosed with mesothelioma on or after Tuesday 10th February.

Speaking during a parliamentary debate, Work and Pensions Minister Mark Harper told MPs that the cost of the scheme had been lower than expected. Due to this, and because the “Employers’ Liability Tracing Office has been doing an increasingly good job of tracing insurance”, the Government thought it was “right” to increase the payments under the scheme.

This is good news for people in Sheffield and the surrounding area as the industrial history of this area means it is a blackspot for mesothelioma cases.

At ASD we are delighted with the Government’s decision. Mesothelioma has no cure and we have seen first-hand how a diagnosis can devastate a family. Mesothelioma is rarely caused by anything other than exposure to asbestos which is why anyone suffering from the disease has a strong case for compensation.

What we hope for now is that the Government will look to backdate payments to people who have made a compensation claim since the Scheme was set up in July 2012, currently the government has refused to do this.

You can read the full statement on the Parliament website.

For more information on making an asbestos related illness claim read our Complete Guide to Asbestos Claims.

If you have been exposed to asbestos, or secondary asbestos and have contracted mesothelioma then speak to our experienced solicitors today about making a claim. You can make a workplace accident claim if you call on 0114 2678780, email Richard Meggitt at [email protected], or complete our online form today.

February 18, 2015
Asbestos in Schools – the time for action is now!

Cenric Clement-Evans discusses the ongoing problem with asbestos in UK schools in an article featured on the APIL website.

As a personal injury lawyer, my role is normally to try and help people piece back together their lives after suffering serious injury. Campaigning on the issue of asbestos in schools, though, gives me a rare opportunity to change the future.

More than 75 per cent of Britain’s state schools contain asbestos and indeed in Wales the percentage is higher at approximately 85 per cent. In other words the vast majority of the population of the UK may have encountered asbestos whilst at school.

I first became aware of the issue when I was instructed on behalf of a school cleaner who had been diagnosed with the asbestos-related cancer, mesothelioma. Unsurprisingly she was unable to recall any exposure to asbestos. It did not occur to her that she might have been exposed to asbestos as a child at school or later when working at a number of schools.

Not long afterwards I had the privilege of hearing Michael Lees MBE speak. Michael, who lost his wife Gina, a schoolteacher aged only 51, to mesothelioma, has been a tireless campaigner on asbestos in schools and his sheer bloody minded persistence has been an inspiration to many including myself.

I quickly realised that whilst in England, the Department for Education was taking some note, in Wales where health and education are both devolved to Welsh government, no-one appeared to be taking responsibility for the problem. This led to the founding of the Right to Know Asbestos in Schools campaign. I have since become part of the UK Asbestos in Schools Group and attend the Joint Union Asbestos Committee as an observer.

So why is this important? We are seeing an increasing number of teachers, a profession not normally associated with exposure to asbestos, dying from mesothelioma. This has risen from three teachers per year dying in 1980 to 22 by 2012. Official statistics only record deaths aged up to 75. Former teachers aged over 75 have also died from mesothelioma. Since 1980 more than 291 teachers have died.

There are also deaths from mesothelioma amongst teaching assistants and school secretaries. It is known that school cleaners, caretakers and cooks are also dying but the occupational statistics are generic and do not identify those who worked in schools.

This is just the tip of the iceberg, however, because for every teacher there are 20-30 children, and they are more vulnerable. We are now seeing people dying from mesothelioma as a result of childhood exposure.

In June 2013 the Committee on Carcinogenicity reported to the Department for Education that children were more vulnerable than adults to asbestos exposure.
Committee member and world renowned epidemiologist Professor Julian Peto has estimated that between 200-300 people will die each year because of their exposure to asbestos at school in the 1960s and 1970s.
If people were dying in such numbers because of accidents on the roads or at work then there would be an outcry. However because of the nature of mesothelioma, and the fact that it takes decades for the disease to become symptomatic, exposure to asbestos in our schools is not getting the attention it deserves.
As our school buildings age, it is becoming harder to manage the asbestos in our schools. The excellent report of the All Party Parliamentary Group on Occupational Health “Asbestos in Schools.

The need for action” contains the following recommendations:-

•   “The Government should set a programme for the phased removal of asbestos from all schools, with priority being given to those schools where the asbestos is considered to be most dangerous or damaged.
•   Standards in asbestos training should be set and the training should be mandatory and properly funded.
•   A trial should take place to perfect a system of widespread air sampling in schools.
•   A policy of openness should be adopted. Parents, teachers and support staff should be annually updated on the presence of asbestos in their schools and the measures that are being taken to manage it.
•   Pro-active inspections to determine the standards of asbestos management should be reinstated, with a view to reducing future costs.
•   Data should be collected centrally on the extent, type and condition of asbestos in schools and this becomes an integral part of the data collection of the condition of the nation’s schools.”
A real issue is that we do not know the measure of the problem that faces us, as we do not truly know the extent of the asbestos in our schools. Governments need to collate the data so that the action to be taken can be properly assessed.

To quote from Professor Peto’s evidence to the Education Select Committee in March 2013
“All that matters is whether or not kids are breathing in asbestos and, until you find that out, everything else is hot air”
We cannot afford further inaction!

January 26, 2015
The Diffuse Mesothelioma Payments Scheme

Lucy Boyle discusses the new payment system for victims of asbestos.

Since July 2014 The Diffuse Mesothelioma Payments Scheme has made payments to people suffering from mesothelioma. The Diffuse Mesothelioma Payments Scheme was created by the Mesothelioma Act 2014 and is detailed in the Diffuse Mesothelioma Payment Scheme Regulations 2014

When the scheme was first announced, Lord Freud explained:

“… for the first time, sufferers of diffuse mesothelioma, who cannot trace either a liable insurer or employers’ liability insurer, will have access to extra payments.”

However, it is not a ‘no fault’ scheme and has a number of interesting and novel features as well as potential pitfalls.

Eligible applicants

Only employers’ liability cases are eligible. Public liability and secondary exposure cases are excluded. Other asbestos-related illnesses apart from mesothelioma, such as asbestosis or pleural thickening, are also ineligible. Additionally, the person must have been ‘first diagnosed with the disease on or after 25 July 2012’ (s2(1)(b) of the Act). The reason given for this cut-off point by the government is that this is when the scheme was first announced and, therefore, when anyone could have developed an expectation that they would receive a payment. To victims and their families, this date is completely arbitrary.

The eligibility requirements

These are listed in s2 of the Act. A person is eligible for a payment if:

A relevant employer has negligently or in breach of statutory duty caused or permitted the person to be exposed to asbestos.

The person must not have already brought an action for damages against an employer or insurer and they must be ‘unable to bring an action’ because an employer or insurer ‘cannot be found or no longer exists or for any other reason’. Further, an applicant must not have received damages or ‘a specified payment’ in respect of the disease or be eligible to receive such a payment.

At first glance, these requirements seem okay. In particular, unlike with civil claims, there is no specific requirement for an applicant to prove causation in respect of the disease. Additionally, the requirement of being unable to bring a claim ‘for any other reason’ sounds potentially very broad. The reality is that the criteria will be highly problematic for many mesothelioma sufferers. The circumstances in which a person is to be treated as unable to bring an action are defined tightly in reg 7 of the regulations. Another potentially liable employer or insurer cannot exist, thereby excluding any applicant who, as is very often the case, experienced multiple instances of exposure to asbestos throughout different employments. This also imposes a more onerous requirement that the common law where the principle of joint and several liability allows a claimant to sue any tortfeasor. Alternatively, an applicant’s circumstances must fall within one of the ‘relevant provisions’, namely the Third Parties Rights Against Insurers Legislation and the like. Although this will assist some, the real problem with the ‘for any other reason’ aspect of the scheme is that it will force other victims to litigate in circumstances where they are unlikely to receive any compensation. Practitioners will be familiar with cases where bringing an action against a defendant will cause it to go into liquidation or administration.

Dependants

Although ‘dependants’ of a deceased victim can apply for a payment, only dependants falling within the definition given in s3(1) of the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 are eligible. This is a hierarchical list of dependants starting with the sufferer’s spouse, somewhat different from the more commonly understood meaning of dependant in the Fatal Accidents Act 1976.

The requirement regarding when the person with mesothelioma was ‘first diagnosed’ is adapted in respect of dependants to include a diagnosis following a post-mortem examination or in writing after the person has died (schedule 1, para 8).

Limitation

Applicants must be made within three years of diagnosis or, if the sufferer was diagnosed or died between 25 July 2012 and 5 April 2014, within three years of the regulations coming into force. The time limit can be extended (reg 9(3)):

… Where the scheme administrator considers that there was good reason for the failure to make the application [in time] and for any delay since then.

It remains to be seen how this provision will operate and, in particular, whether considerations similar to those relevant to extension under the Limitation Act 1980 will apply.

Procedure

Regulation 8 and schedule 3 of the regulations provide the scheme administrator with broad powers regarding the information and supporting documents that an applicant may have to provide as well as the ‘key issues’ they must address. An application ‘must be made in writing to the scheme administrator in such format as the scheme administrator may approve’. The application form provided on Gallagher Bassett’s website is, thankfully, not unduly onerous. Apart from evidence of a failed Employers Liability Tracing Office (ELTO) search, it more or less requires the same information and evidence that a Claimant would need to provide in a civil claim. This includes a witness statement providing details of work history, exposure, details of any witnesses and ‘other evidence’ to support an applicant’s case.

Request for third parties to provide information

The scheme administrator may request third parties to provide documents ‘reasonably required for the purposes of determining the application’ (reg 10(b)). If the documents are not provided, the scheme administrator can apply to the High Court for an order (reg 13(4) to (6)). This provides the scheme administrator with powers similar to those contained in Part 31 of the Civil Procedure Rules.

Level of payments

The most disappointing aspect of the scheme is that successful applicants will only receive ‘80% of average civil damages’, namely a lump sum payment that decreases with the sufferer’s age. The tariff of payments is provided in a table at Schedule 4 of the DMPS Regulations. Mesothelioma sufferers deserve 100% of compensation. However, this outcome is hardly surprising given that the scheme is being funded by a levy on the active employers’ liability market but not the ‘run-offs’. Worse still, 100% of CRU will be deducted from this 80% figure (schedule 1 of the Act).

Legal Costs

The tariff payment includes a figure of £7,000 towards legal fees. An applicant is entitled to keep the difference if they incur legal costs of less than this, or the full amount if they do not use a solicitor. The government presumably envisages that will go some way to bridging the 20% shortfall in compensation for applicants.

Technical Committee

Section 15 of the Act provides that ‘the secretary of state may make arrangements with a body to establish a committee called the Technical Committee’ which has jurisdiction to make binding decisions about whether an employer maintained employers’ liability insurance with an insurer. The technical committee is not mentioned in the regulations and there is no separate statutory instrument on this topic. During the Act’s passage through Parliament, Lord Freud emphasised that the technical committee is merely an extension of ELTO and ‘addressed at improving consistency across the insurance industry’. It is therefore entirely separate from the application process. Further, the technical committee does not have jurisdiction to decide a question that has already been decided by a Court. It is difficult to understand what the allure of going to the technical committee could be for a potential applicant when an independent Court could determine the same issue.

Comment

The scheme is far from perfect and many feel that a valuable opportunity to achieve justice for mesothelioma victims has not been fully realised. Nevertheless, for those who have ever had to advise a client that they cannot receive any compensation because an insurer cannot be traced, the scheme is more than a step in the right direction. It is hoped that there is scope for the scheme to develop in ways that are more aligned with victims’ needs.

If you have been exposed to asbestos, or secondary asbestos and have contracted mesothelioma then speak to our experienced solicitors today about making a claim. You can make a workplace accident claim if you call on 0114 2678780, email Richard Meggitt at [email protected], or complete our online form today.

December 22, 2014
Don’t be part of the 65% – Choose ASD for Your Personal Injury Claim

Only a quarter of people who have suffered a personal injury are likely to claim, a new study has revealed. A poll by YouGov found the proportion of injury victims willing to claim had fallen since 2013, when it stood at 29%.

Just over a third (35%) who had had an accident or illness, decided not to claim as they did not believe their ailment was bad enough to warrant compensation. A further 22% said they do not believe in claiming compensation and 9% believed their case was not strong enough to win.

The results are based on a survey of 2,212 adults carried out in April, one year after the implementation of the Jackson reforms on personal injury claims.

If you unsure whether you can make a claim or don’t know whether the injury is serious enough, call one of our Solicitors and arrange an immediate home visit by a Solicitor and gain specialist advice from an experienced Solicitor local to you.

The survey from YouGov concluded:

“While there are fewer claims being made, the level of contact from personal injury companies has been pretty steady. The type of contact is changing, though, with fewer people receiving unsolicited texts and emails but more being cold called. Direct approaches do seem to be working, however, with a notable number of people choosing to pursue a claim after contact from a personal injury company.”

I am passionate about acting for local people who have been injured on the road or at work. I believe clients would be much better served by a local firm rather than a national one.

Richard Meggitt
Solicitor / Director
Accident Solicitors Direct
Sheffield

October 2, 2014
Asbestos, the Workplace and the Law: A Doctor’s Perspective

A recent paper on asbestos by Dr Philip Barber, Consultant Respiratory Physician, entitled ‘Asbestos Attribution of Mesothelioma and Lung Cancer: Dosage and Probability Consideration,’ highlighted the increased risk people working in certain industries have of contracting mesothelioma and other asbestos related diseases. The paper also stressed the increased risk people exposed to asbestos through close contact with people working in these industries also have of contracting asbestos related diseases.

In the paper, Dr Barber discusses the probability of mesothelioma being caused by something other than working in close contact with asbestos, an angle some defendants will often try to take when cases go to court. Dr Barber concluded that in the cases of mesothelioma “…it will rarely be possible for a defendant to argue convincingly in favour of a cause, other than asbestos exposure at work, where there is an occupational asbestos exposure history, even with a modest dosage.”

He continues, “the attribution of mesothelioma to occupation, with even very modest exposures, is not usually difficult in a medico-legal setting because of the relative rarity still (in comparison with lung cancer for example) of mesothelioma, and its unique association with asbestos.”

This means it’s rare for someone suffering from mesothelioma not to have contracted this from being exposed in the workplace, or as a result of being affected by someone having worked with asbestos; such as in the case of a child who has been exposed to asbestos as a result of their parent working with asbestos. For example, if a parent returned from work with clothing covered in asbestos dust and fibres, which the child inhales, then this could result in a diagnosis of an asbestos related disease later in the child’s life. That said, Dr Barber concedes that mesothelioma can “undoubtedly be caused by environmental exposures” such as the Washington chemical factory in the North East of England, which contaminated large parts of the surrounding area. However, in cases like these it will likely prove difficult for a defendant to succeed with an argument that someone’s mesothelioma has been caused by environmental exposure, if they have also been exposed to asbestos in the workplace.

In short, if a person can show that they have been negligently exposed to asbestos in their earlier working life, during their school years, or as a result of secondary exposure, for example from their parent’s work clothing and they later develop mesothelioma; it is worth contacting a solicitor in order to enquire about pursuing a claim. Although clearly no substitute for someone’s health, a monetary settlement can assist not only the sufferer of mesothelioma but also their family.

To find out more about asbestos in the workplace, read our blog post ‘Why aren’t we learning our lesson when it comes to asbestos?’

If you have been exposed to asbestos, or secondary asbestos and have contracted mesothelioma then speak to our experienced solicitors today about making a claim. You can make a workplace accident claim if you call on 0114 2678780, email Richard Meggitt at [email protected], or complete our online form today.

+Richard Meggitt

March 28, 2014
Lawyers are gatekeepers of fraud says APIL CEO

Insurers have helped to build a system which allows fraudulent claims, APIL chief executive Deborah Evans told assembled delegates at the Modern Claims Conference in London this week.

“If you give people money without having to see a doctor it will encourage fraud,” she said.

Deborah took part in a panel debate alongside James Dalton of the ABI, Craig Budsworth of MASS, and David Johnson of FOIL.

“Lawyers are the gatekeepers of fraud, we turn away clients if we are suspicious about the case” Deborah continued. “But the more remote we get from clients, the higher risk of fraud, and cost reductions are pushing lawyers towards non face-to-face contact”.

+Richard Meggitt

March 27, 2014
Lighting and Safety at Work

Poor lighting is a factor in many falls at work, this can be caused either by lack of lighting or if the lighting is not properly maintained. Recently the problem of poorly maintained lighting at an Amazon warehouse in Swansea was exposed in the BBC TV programme Panorama which, using undercover cameras, reported that the automatic lighting used in the warehouse was faulty. This meant that areas of the warehouse were in darkness, seriously risking the safety of employees.

Reports of individuals tripping or slipping and injuring themselves because they can’t see properly is alarmingly common and many of these accidents could be avoided with better planning by employers.

According to the Health and Safety Executive, the amount of light required is dependent on the task being performed and the Executive has set minimum average requirements for the light levels required for workers which can be viewed here. Fluorescent tubes which are typically seen in workplaces generally have a poor reputation for causing glare which leads to headaches in some people. However, when fitted with diffusers these lights are a safe and practical way to light a large area, provided they are well maintained as flickering lights are distracting and could potential cause accidents.

To prepare for the dark evenings make sure you do the following external checks of your workplace lighting:

– Check that any lighting which is set to come on at a certain time switches on early enough to coincide with nightfall to prevent potential hazards.

– Ensure lighting is adequate in areas which would normally be covered by natural lighting such as car parks.

– Pay particular attention to areas such as gates which receive high traffic.

Inside the building, regular maintenance of all lights is recommended, especially in areas where accidents are more likely such as staircases. Ensuring light switches can be easily reached by staff and that they know where the switches are will help avoid accidents first thing in a morning before it is light.

In an office environment, provided the lighting is adequate to avoid slips or trips, the effects of poor lighting tend to be long term and manifest themselves as migraines, eye strain and headaches. Although these conditions are unlikely to result in a compensation claim, they are likely to dampen the morale and motivation of staff. In an industrial environment, poor lighting can be disastrous. For example, in 2008, Harris Transport employee Lee McMahon was left with permanent disabilities after being run over by a forklift truck in a dark transport year. Harris Transport were found liable and racked up costs of £42,000 in fines and compensation.

Maintaining suitable lighting in a business is a straightforward way to keep employees safe and avoid accidents in the workplace, especially in winter.

+Richard Meggitt

November 29, 2013
Failure to wear Seatbelts: The Law
In a road traffic accident, where a Claimant fails to wear a seatbelt, an insurer will almost always seek to deduct 25% from the compensation claim.

In reality it is not as straightforward as an insurer would have you believe. Firstly the burden of proving the deduction rests firmly with the opponent. Secondly the standard deductions are not as simple as reducing the claim by 25%. The standard applicable today is set out in Froom v Butcher (1975) as follows:-
- No deduction where use of seatbelt would not have made any material difference to the injuries suffered.
- 25% deduction if the failure to wear a seatbelt made all the difference, in other words the Claimant would have been uninjured or virtually uninjured.
- A deduction of 15% in other cases, in other words cases where the Claimant would still have suffered an injury but the injury is more severe because of the failure to wear a seatbelt.
If you have suffered serious injury, a 25% deduction will be considerable. As always, instruct a local solicitor who specialises in personal injury claims to ensure you get the right result.

Richard Meggitt is a Solicitor and Partner with Accident Solicitors Direct, Ecclesall Rd Sheffield

+Richard Meggitt
November 27, 2013
Des Hudson calls for CMCs to be shut down

Law Society chief executive Desmond Hudson told the Transport Select Committee this week that Claims Management Companies should be closed down, as the selling of claims by insurance companies may have contributed to exaggeration and fraud.

“Aggressive marketing by Claims Management Companies is at the core of the problem,” he said. “These companies add nothing to the process.”

Hudson also told the committee that the Government’s proposals to prevent fraudulent whiplash claims hit the wrong target and risk access to justice for genuine accident victims. He said that plans to raise the limit of the small claims track for PI claims, and proposals put forward by the insurance lobby to reduce the limitation period and lower damages, were not in the interests of consumers and did little to tackle the tiny minority of fraudulent claims.

“The Government is making policy based on evidence that is almost a decade out of date. The most recent report from European insurance companies actually shows that claims made in the UK fell by 6%, while German insurers experienced an increase of 2% and in France claims remained stable,” said Hudson.

“Changes already made by the Government on the basis of a deal to make claims more difficult in return for which insurers would reduce car insurance rates seem likely to leave the Government with egg on its face.”

ASD Solicitors do not accept referrals from Claims Management Companies (CMC). The message is clear – personal injury claimants should go direct to a specialist Solicitor and not to an unregulated unqualified CMC.

Richard Meggitt

+Richard Meggitt

June 21, 2013
Let’s work together to help genuine whiplash victims

Let’s work together to help genuine whiplash victims

As a Solicitor committed to helping people with genuine injuries, I worry that the public perception of whiplash claims means injured people are resented for, and discouraged from, making claims, while the real problem of fraud is overlooked.

The Association of Personal Injury Lawyers (APIL) has a 1- point plan to sort the wheat from the chaff and asks the insurance industry to put its money where its mouth is and help tackle the problem without damaging a genuinely injured person’s access to fair redress.

Our proposals include a ban on insurers paying compensation without ever seeing any medical evidence.

In trying to get rid of claims as quickly and cheaply as possible in this way, Insurers risk encouraging people without valid claims to seek compensation, or denying the correct level of compensation to genuine claimants who need to get back on track.

The plan also calls for new guidance on diagnosing whiplash injuries, a ban on spam texting, and robust enforcement of a future ban to prevent insurers from selling claimants’ details.

Instead of attaching all whiplash claims, the insurance industry, claimant community and the Government must all work together to develop a system which works well for the people it is supposed to help.

If you’ve had a serious injury which led to whiplash, due to a traffic road accident, a workplace accident, a pedestrian, cyclists, or motorcyclists accident and are considering making a claim, call 0114 2678780. Otherwise, email Richard Meggitt at [email protected], or complete our online form today.

Richard Meggitt

Member of the Association of Personal Injury Lawyers

+Richard Meggitt

December 12, 2012