Legal Aid, Sentencing & Punishment of Offenders Act 2012
07 June 2012
Mesothelioma is a cancer caused almost always by exposure to asbestos fibres and therefore where someone is diagnosed with mesothelioma it is almost impossible for a defendant to argue that it has been caused by something else apart from their negligent exposure of their employees to asbestos.
However that is not to say that these cases are straightforward. Mesothelioma does not normally show any signs of symptoms until at least 20 years+ since exposure to asbestos fibres and therefore it can be very difficult trying to find witnesses and companies will have ceased trading .
One of the main difficulties is locating insurance companies for Defendants who have long since ceased trading. Whilst we as solicitors do have access to many research tools, there is no fund of last resort for these type of claims. Therefore, if we cannot locate an insurance company for the defendant, no compensation will be recovered. However, even if it is not possible to bring a civil claim, a victim of asbestos may still be entitled to claim state benefits, for example, Industrial Injuries Disablement Benefit.
There have been many requests for the Government to set up a fund of last resort, similar to the Motor Insurers Bureau (MIB) which allows victims of uninsured drivers or untraced drivers to still claim. The current Government has indicated that they will look into this for victims of asbestos related illnesses.
Also, Defendants can argue that the level of asbestos exposure was too small to have materially contributed to a diagnosis of mesothelioma. Whilst there have been some recent high profile cases in the news about successful claims where the Claimant was only exposed to very small levels of asbestos, this is still a legal obstacle to overcome and must be considered carefully. They may also seek to argue that exposure occurred elsewhere, including environmental exposure.
Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (to come into force in April 2013) not all costs will be recoverable from the Defendant in successful cases dealt with under a ‘no win no fee’ agreement. This will result in Solicitors either waiving these non-recoverable costs completely or seeking to recover them from their Clients. If the latter occurs, Clients will not recover 100% of their compensation and will find that part of it is being used to pay for their Solicitors costs. Clients will have to ‘shop around’ to find the best deal before embarking on a claim for personal injury. At the moment and prior to the introduction of the above Act, claimants can receive the full amount of any agreed compensation and have their legal costs paid by the negligent employer, or more likely, its insurance company. The result is that claimants are not forced into contributing to their own legal costs in seeking compensation due to no fault of their own.
Whilst this position is far from ideal for personal injury claims, the Government has recognised that victims of mesothelioma will not have the time or the inclination to ‘shop around’ for a Solicitor after receiving a terminal prognosis and therefore these claims will be exempt from LASPO.
Poole Alcock LLP solicitors offer a wide rang of legal services, including a team with significant experience specialising in asbestos related disease. If you would like to find out more about bringing a claim for asbestos disease, please do not hesitate to telephone a member of our team on 01270 502880 for a free initial consultation. You will be under no obligation to make a claim.