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Simon Allen discusses Asbestos Compensation Claims

Asbestos compensation claims differ greatly from other types of personal injury claims for damages. In most personal injury cases the injured party suffers physical injury from which either a good recovery is made or from which the residual symptoms are only moderately restrictive in relation to the activities they carry out in their life.  

It is a disturbing fact that by 2020, 250,000 men will die of mesothelioma in Western Europe. In the United States it is estimated that asbestos claims will cost the insurance industry $20 billion in the next 30 years. A person living in an urban environment will likely have between half a million and a million asbestos fibres per gramme of dry lung tissue within their lungs.  

Legal experts trained in asbestos litigation at Russell Jones & Walker Part of Slater and Gordon Lawyers, are happy to help you through this process should you find yourself diagnosed with an asbestos-related illness.  

Simon Allen, Practice Group Leader for Personal Injury at Russell Jones & Walker and leader of the Occupational Disease Group offers his thoughts on some of the more common queries that we receive. 

1) How does dealing with an asbestos-related claim differ from other personal injury claims?

All personal injury claims are understandably important to the sufferer. People should not suffer injury as the result of a consequence of their employment or through using the highway. Fortunately, most injuries are relatively modest and a full recovery is made. Unfortunately, of course, asbestos illnesses are neither. Aside from pleural plaques, which is not actionable at the present time following a House of Lords decision a couple of years ago, asbestos illnesses are debilitating and the cancers may, of course, be fatal. The fact that the word “asbestos” evokes significant anxiety in the public at large explains why these cases differ from the majority of personal injury claims.  

The sufferer, hearing that they have an asbestos-related condition, often, misguidedly, presumes that the illness is inevitably fatal and that their death is imminent. In fact, pleural thickening is a benign condition and asbestosis is rarely fatal. Sadly, the cancers of lung cancer and mesothelioma do reduce life expectancy.

It is, therefore, critical that the lawyers who deal with asbestos cases understand the way in which those diagnosed with these illnesses react and they can reassure them, when appropriate, in respect of what the future holds.  For those suffering from the cancers, we can obtain advice from the best medical professionals in the country and obtain monies to assist in the care and assistance that will be required in the later stages of the illnesses. 

2) What percentage of queries relating to occupational disease is related to asbestos?

In the UK there are approximately 18,000 occupational illness claims per annum. The majority of these relate to vibration and noise-induced hearing loss.  In recent times, the miners’ cases for both of those conditions, as well as respiratory illnesses, have rather distorted the figures.  

Asbestos cancer cases are responsible for between 4,000-5,000 of those cases. There are approximately 2,000 mesothelioma claims per annum and 3,000 lung cancer cases which are linked to asbestos. 90% of the mesothelioma cases relate to workplace exposure. Because of the latency period, many of those suffering from the condition will only have been exposed in the 1940s, 50s and 60s. The baby boomer generation, which started work in the 60s, was the generation most exposed to asbestos at the workplace.  

In addition, there are the conditions of pleural thickening and asbestosis.  Fortunately, asbestosis is becoming a rarer condition due to the fact that the exposure must have been significant to cause the illness, whereas with mesothelioma the level of fibres can be very small indeed.

We at Russell Jones & Walker handle approximately 100-200 asbestos claims per annum. We deliberately keep the caseloads of those handling the cases relatively small so that they have the time to properly investigate a case and to be available to speak to the sufferer and his relatives in relation to the condition. We pride ourselves on our personalised service and believe from the “thank you” letters we receive that our genuine wish to be perceived as caring about the asbestos sufferer and his plight is recognised. 

3) What, in your opinion, needs to be done to bring cases to Court earlier?  Is this something that should be focussed on?

From my experience, it is the wish of those suffering from asbestos illness that they would like their cases to be settled as quickly as possible and that, if they are suffering from a fatal condition, that we obtain as much compensation as possible so that their families are well looked after beyond their deaths.  

As I have indicated, our asbestos specialists have low caseloads. There is, therefore, no excuse for not acting speedily in acquiring the evidence by which to assess the prospects of success in a case and then, if the prospects are reasonable, drafting a letter of claim and preparing the case for commencement of proceedings in the Courts in the event that the insurance industry seeks to delay the settlement of the case.  

In the last year we have had a number of cases that have settled within 6 months of being instructed to act for the victim.  

It is an awful consequence of the English law that, at times, one has to advise a sufferer that, in fact, his case will be worth significantly more in damages should the case be resolved after his death. He, therefore, has the impossible conflict between wanting the case resolved whilst he is alive so that he knows that his widow and family are financially catered for and, on the other hand, knowing that if he were to leave the case unsettled until after his death they would recover more monies. No one should be put in this position.

4) Should it be reconsidered how awards are determined in Court?

Most of the damages in an asbestos case are calculated mathematically. They are computed in the same way as damages in other accident claims.  

The one area that troubles me is the head of damages known as “pain, suffering and loss of amenity”, in other words compensation for the injuries.  The bracket of damages for mesothelioma is currently £35,000-£83,750. Lung cancer is £51,400-£66,000. What one recovers is dependent on a number of factors including the number of medical investigations that one undertakes during one’s treatment, but also the duration of pain and suffering. This creates an artificial situation whereby one has to question a dying man about when his symptom started. To me the fact that in mesothelioma and lung cancer cases death in inevitable dictates that society should ensure that the sufferer is not exposed to such examination within the legal process. A fixed sum of, say, £100,000 should be awarded for this head of damage irrespective of what has happened to the sufferer in relation to his medical treatment. The sad fact is that the last 2 to 3 months of a cancer-sufferer’s life are always horrible. It is morally unacceptable that a sufferer should have to attend court to be cross examined on his medical history or that a widow should have to listen to legal argument in this respect.